Just substitute FHFA for EPA and housing for energy.
Source: 2021-2022 Cato Supreme Court Review
West Virginia v. EPA: Some Answers about
Major Questions
Jonathan H. Adler
"The EPA was asserting the
authority “to substantially restructure the American energy mar-
ket” based on an “ancillary” statutory provision that had never
before been used for such a purpose.73 Whether the EPA could de-
fine the BSER as generation shifting was not treated as a routine
question of statutory interpretation for which a “plausible textual
basis for the agency action” would be sufficient.74 More would be
required to justify upholding the EPA’s authority to “restructur[e]
the Nation’s overall mix of electricity generation” under the guise
of setting performance standards for stationary sources of air
pollution.75"
"Under this approach, even if one might conclude that the EPA’s
preferred interpretation of Section 7411 were reasonable, the nature
of the power the EPA was asserting, and its lack of precedent, coun-
seled a narrower construction. That the EPA’s interpretation of its
authority to define BSER might be plausible “as a matter of ‘defi-
nitional possibilities’” was insufficient to justify the breadth of au-
thority the EPA sought to assert.81 That the word “system”—and the
phrase “best system of emission reduction”—could be interpreted
broadly when “shorn of all context” was “not close to the sort of clear authorization required by our precedents.”82
What Makes a Question Major?
Once Chief Justice Roberts declared West Virginia v. EPA a major
questions case, his task became easier. No longer did he need to find
that the EPA’s desired interpretation of the relevant statutory provi-
sions was out of bounds (with or without Chevron deference). Invok-
ing the doctrine enabled him to flip the presumption and demand
that those defending the D.C. Circuit’s interpretation of the CAA
find “clear congressional authorization” for that position.85 But what
made West Virginia v. EPA a “major questions case”?
Chief Justice Roberts identified several factors indicative of “major
questions” cases under the Court’s precedents. These include that
an agency is seeking to exercise broad regulatory power over a sub-
stantial portion of the economy, that this power is “unheralded” or
had not been previously discovered or utilized, and that Congress
has “conspicuously and repeatedly declined to enact” express au-
thorization for what the agency wants to do.86
[J]ust as established practice may shed light on the extent
of power conveyed by general statutory language, so the
want of assertion of power by those who presumably would
be alert to exercise it, is equally significant in determining
whether such power was actually conferred.91
91 FTC v. Bunte Bros., Inc., 312 U.S. 349, 352 (1941)."
"Further, suggesting that once litigants are able to convince a court that a
given case presents a “major question” they can discard traditional
methods of statutory interpretation ....
Justice Gorsuch wrote a separate concurrence, stressing his view
that the major questions doctrine is properly understood as a clear
statement rule that prevents Congress from delegating broad legisla-
tive power to agencies. "
"West Virginia v. EPA and the covid cases highlight the Court’s
concern that the executive branch sometimes seeks to expand and
repurpose existing statutory authority to address broader (and per-
haps worthwhile) policy goals beyond those with which Congress
was focused when the statute was enacted.
"What judicial review requires, Roberts explained,
is that agencies provide “genuine justifications for important deci-
sions,” and not “distractions” or subterfuge.115"
"the Roberts Court
is suspicious of agency attempts to use regulatory authority dele-
gated for one purpose to address another"
"As the chief justice noted, such questions
of extraordinary importance may arise from any corner of the ad-
ministrative state, and the opinion makes clear that courts are to
be suspicious when agencies engage in self-aggrandizing behavior
or otherwise seek to pour new wine from old bottles.
AI
