The Executive Playbook in the Era of Major Questions

Writer: Connor “Joe” Daniels

Article Editor: Cassandra Torres

Associate Editors: Patrick Noble & Leona Rindle

I. Introduction

The major questions doctrine (MQD) is a newly formalized doctrine of the U.S. Supreme Court intended to curb the exercise of “highly consequential” regulatory authority by federal administrative agencies.¹ In short, the MQD requires that “clear congressional authorization”² be present for regulations with “vast economic and political significance”³ to be upheld, giving the Court a powerful tool to preserve separation of powers.⁴ The MQD has transformed administrative law, redefining how the Executive Branch defends its statutory interpretations.⁵ 

II. A Brief History of the MQD and Originalism on the Roberts Court

Five of the nine Justices on the Roberts Court explicitly subscribe to originalism,⁶ a constitutional interpretation that relies on historical context to ascertain the Constitution’s original meaning at the time of writing and employ that understanding today. Historically, originalist readings of Article I’s Vesting Clause⁷ have supported some version of the nondelegation doctrine, or the principle by which the judiciary invalidates congressional delegation of lawmaking authority to another branch.⁸ Nondelegation has only been formally applied twice, with the Court instead typically adhering to the intelligible principle test.⁹ This test, first articulated in J.W. Hampton, Jr. & Co. v. United States, permits some delegation to the Executive as long as Congress provides a guiding principle to constrain it.¹⁰ In this context, legal scholars characterize the MQD as a modern attenuation of nondelegation that allows the Court to constrain broad legislative delegations while leaving the longstanding intelligible principle test intact, even as the Court itself avoids this explicit connection.¹¹ 

While elements of the MQD had been expressed in cases preceding its formal articulation,¹² the Court’s landmark 2022 West Virginia v. Environmental Protection Agency decision solidified it as precedent.¹³ In this case, the Court ruled that the Environmental Protection Agency’s regulation of greenhouse gas emissions was significant enough in its economic and political consequences that the Court should “hesitate” to assume Congress meant to confer so much authority,¹⁴ thereby striking down some of the agency’s emissions regulations.¹⁵

One year after West Virginia, in a doctrinal complement to the MQD, the Court overturned Chevron deference in the landmark case Loper Bright Enterprises v. Raimondo.¹⁶ Prior to its invalidation, Chevron was a legal precedent under which the judiciary could defer to executive agencies’ reasonable interpretations of unclear statutes enacted by Congress.¹⁷ In Loper, however, the majority ruled that courts are required to exercise independent judgment in cases of ambiguous law rather than defer to the Executive’s interpretation.¹⁸

Following West Virginia, the MQD has been explicitly invoked in a majority opinion twice: in the recently decided Learning Resources Inc. v. Trump¹⁹ tariff case, and in the Biden v. Nebraska²⁰ student loan forgiveness case. In Learning Resources, the majority determined that the Trump administration’s tariffs implicated a question of such economic significance that they required explicit congressional approval, which was lacking.²¹ In Chief Justice Roberts’ words, “Had Congress intended to convey the distinct and extraordinary power to impose tariffs, it would have done so expressly.”²² In the Biden decision, the Supreme Court similarly invalidated the Biden administration’s student loan forgiveness program under the MQD, finding it to be both outside the breadth of clear congressional authorization²³ and entailing “vast” economic significance.²⁴ The historical context surrounding the nascent MQD in the Roberts Court provides the necessary groundwork for viewing the MQD not as an isolated result of recent administrative jurisprudence, but as part of a soft revival of nondelegation principles that has shifted how the Executive must justify its delegated authority.²⁵ 

III. Litigative Implications

In the wake of West Virginia, the Executive Branch now increasingly seeks to avoid any implication that a case presents a major question at all.²⁶ In the near-century of delegation cases following Hampton, the Executive’s litigation strategy typically relied on demonstrating intelligible principles from Congress²⁷ and, in cases of ambiguity, on Chevron deference.²⁸ However, in the post-Loper era of major questions, the presence of an intelligible principle may be an insufficient defense if the action presents a major question. Thus, it is critical for the Executive to demonstrate from the outset that a case does not implicate the MQD, so that statutory interpretation can be effectively argued without the imposition of a heightened clear-statement requirement.

Oral arguments in the Learning Resources Inc. v. Trump tariff case, heard last November, are a telling example of this new litigative approach; however, unsuccessful in light of the February decision.²⁹ The government’s central argument in this case relied on an interpretation of the International Emergency Economic Powers Act (“IEEPA”)³⁰ that the government argued conferred upon the President the authority to impose tariffs in national security situations.³¹ The Solicitor General argued in his opening argument that “The major questions doctrine does not apply here. IEEPA confers major powers to address major problems on the President … and the nondelegation doctrine casts no doubt on IEEPA.”³² He elaborated, arguing for an exception to the MQD on the grounds that the President should be granted increased latitude in foreign affairs³³ as had been given to him in the past.³⁴ After his remarks, the Justices first proceeded to question not the IEEPA interpretation on which the government’s argument rested, but the assertion that the MQD “does not apply.”³⁵ 

Oral arguments during Biden v. Nebraska the previous year followed a similar sequence of questioning. The Biden Administration’s Solicitor General likewise claimed that the MQD was inapplicable³⁶ in her opening argument, and the Justices engaged this claim before most others.³⁷ Questions from the Bench regarding economic impact and clear congressional authorization preceded³⁸ those concerning interpretation of the 2003 HEROES Act,³⁹ the statute on which the government based its loan-forgiveness authority, underscoring the doctrine’s significance. Despite its formal invocation only three times, the MQD appears to be an increasingly relevant constraint on regulatory power as Solicitors General spanning two presidential administrations have attempted to preemptively address the doctrine in anticipation of an originalist Court no longer operating under Chevron deference.

IV. Conclusion

Under a jurisprudential framework containing the MQD, the Executive Branch must now be prepared to demonstrate that its action falls outside the MQD’s scope or satisfies its clear-statement requirement before proceeding.⁴⁰ Before West Virginia, ambiguity and intelligible principles defined oral arguments; now, the applicability of major questions takes up the opening exchanges of landmark cases, even before meaningful discussion of statutes. This, in conjunction with the absence of Chevron, embodies a shift in litigation emphasis from “what might Congress reasonably allow?” to “would Congress have left something of this scale to agency interpretation?” While statutory interpretation remains vital post-West Virginia, and arguments about regulatory scope certainly precede it, there is a noticeable change in the Court’s most impactful delegation cases after the formal articulation of the MQD.⁴¹ This transformation is evident in both Biden and Learning Resources, and suggests that the MQD will remain a central consideration for the Executive as the Court continues to enforce its separation-of-powers vision.

1. West Virginia v. Environmental Protection Agency, No. 20–1530, Slip op. at 20 (U.S. Jun. 30, 2022). ↩︎
2.  Id. at 4. ↩︎
3. Id. at 17. ↩︎
4. Id. at 46. ↩︎
5. Daniel J. Hemel, Major Questions Avoidance and Anti-Avoidance, 98 S. Cal. L. Rev. 1497 (2025). ↩︎
6. Jose Alicea, The Supreme Court Is Divided in More Ways Than You’d Think, Am. Enter. Inst. (Jun. 2025), https://www.aei.org/op-eds/the-supreme-court-is-divided-in-more-ways-than-youd-think/ [https://archive.ph/zVgYP]. ↩︎
7. U.S. Const. art. 1, § 1, cl. 1. ↩︎
8. Legal Information Institute, The History of the Doctrine of Nondelegability (U.S. Const. Annotated), Cornell Law School,
   https://www.law.cornell.edu/constitution-conan/article-1/section-1/the-history-of-the-doctrine-of-nondelegability [https://perma.cc/Z3QB-H52W]. ↩︎
9. Id. ↩︎
10. J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928). ↩︎
11.  See Mila Sohoni, The Major Questions Quartet, 136 Harv. L. Rev. 262, 266 (2022); Jack M. Beermann, The Anti-Innovation Supreme Court: Major Questions, Delegation, Chevron, and More, 65 Wm. & Mary L. Rev. 1265 (2024); Clinton T. Summers, Nondelegation of Major Questions, 74 Ark. L. Rev. (2021). ↩︎
12. Sohoni, supra note 11, at 263. ↩︎
13. West Virginia v. Environmental Protection Agency, No. 20–1530, Slip op. (U.S. Jun. 30, 2022). ↩︎
14. Id. at 4. ↩︎
15. Id. at 6. ↩︎
16. Loper Bright Enterprises v. Raimondo, No. 22–451, Slip op. at 8 (U.S. Jun. 28, 2024). ↩︎
17. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). ↩︎
18. Loper Bright, No. 22–451, at 1. ↩︎
19. Learning Resources Inc. v. Trump, No. 24–1287, Slip op. (U.S. Feb. 20, 2026). ↩︎
20. Biden v. Nebraska, No. 22–506, Slip op. (U.S. Jun. 30, 2023). ↩︎
21. Learning Res., No. 24–1287, at 2. ↩︎
22. Id. at 4. ↩︎
23. Biden, No. 22–506, at 28. ↩︎
24. Id. at 46. ↩︎
25. Daniel J. Hemel, Major Questions Avoidance and Anti-Avoidance, 98 S. Cal. L. Rev. 1497 (2025). ↩︎
26. Id. ↩︎
27. See Brief for Respondent at 21, Gundy v. United States, No. 17-6086 (U.S. 2018). ↩︎
28. Id. at 22. ↩︎
29. Learning Resources Inc. v. Trump, No. 24–1287, Slip op. (U.S. Feb. 20, 2026). ↩︎
30. International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. § 1701–1702. ↩︎
31. Transcript of Oral Argument at 6, Learning Resources Inc. v. Trump & Trump v. V.O.S. Selections Inc., Nos. 24-1287 & 25-250 (U.S. argued Nov. 5, 2025) [hereinafter Learning Res. Oral Arg. Tr.]. ↩︎
32. Id. at 7. ↩︎
33. Id. at 6. ↩︎
34.  See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936) (recognizing broad presidential authority in foreign affairs). ↩︎
35. Learning Res. Oral Arg. Tr., supra note 31, at 7. ↩︎
36. Transcript of Oral Argument at 6, Biden v. Nebraska, No. 22–506 (U.S. argued Feb. 28, 2023). ↩︎
37. Id. at 11. ↩︎
38. Id. ↩︎
39. Higher Education Relief Opportunities for Students Act of 2003 (“HEROES Act”), 20 U.S.C. § 1098bb(a)(1)-(2). ↩︎
40. West Virginia v. Environmental Protection Agency, No. 20–1530, Slip op. at 4 (U.S. Jun. 30, 2022). ↩︎
41. Ronald M. Levin, The Major Questions Doctrine: Unfounded, Unbounded, and Confounded, 112 Cal. L. Rev. 899 (2024). ↩︎