Since "major questions" has no concrete definition, this means each minor point can/will be litigated until the court determines whether that individual point is a "major question."
Quite arguably, Congress deemed the precipitating questions were not "major questions" and expressed as much by delegating to agencies.
> Quite arguably, Congress deemed the precipitating questions were not "major questions" and expressed as much by delegating to agencies.
That's a tremendous stretch because Congress can be very vague in its delegation of authority and decades later the agencies it delegated power to can interpret anything they want into that language and -because of the oft-repeated point about Congress' disfunction- the agencies can't be stopped.
> Since "major questions" has no concrete definition,
It's like obscenity: you know it when you see it. But it's simpler: if there's a controversy, there's a chance that the issue is a major powers issue, and then you have to look at whether the liberty/economic impact of the regulation is extreme enough that Congress must decide it.
I feel like this is a circular argument. On the one hand, Congress isn't allowed to delegate to the executive (agencies) because the agencies then act as delegates (by interpreting their mandates), so Congress must explicitly legislate everything.
But then on the other hand, Congress is dysfunctional and is incapable of legislating.
This feels like a recipe for the unelected branch (the courts) to run everything.
- Congress is allowed to delegate to the executive (agencies)
- but if an agency goes so far in beyond the original understanding of its delegation as to cause a major political controversy, then it has overstepped its mandate
For example, if Congress were to delegate to the EPA the power to ban internal combustion engines at the EPA's choice, then the EPA could absolutely do that. (Perhaps Congress couldn't if the court revisits Wickard, who knows, but if Congress could, then so could EPA). But if Congress were to pass a bill regarding clean air and decades later the EPA decides that a clean air mandate means the EPA can ban ICEs, then that would clearly be a major question (well, today it would be; maybe in another two decades it wouldn't be), the courts would not (today) allow such a regulation, and EPA would have to go ask Congress to ban ICEs or to delegate that authority to the EPA.
> This feels like a recipe for the unelected branch (the courts) to run everything.
If the courts were to decide that EPA can't ban ICEs under the Clean Air Act but that the courts can, that would be pretty insane. Perhaps before Chevron the courts sometimes did that sort of thing, but they wouldn't now if Chevron is reversed because this SCOTUS absolutely does not want that and will write an opinion that reflects that -- that much is clear. So I think this is hyperbole. Instead if Chevron is reversed, and together with W. Virginia vs. EPA, "major questions" will not be decided by the courts -- major questions would go undecided as long as Congress leaves them undecided, with the status quo preserved. That would not be a bad outcome!
> if an agency goes so far in beyond the original understanding of its delegation as to cause a major political controversy
Because "major political controversy" is very subjective and subject to manipulation (we had a "major political controversy" over the name of French fries in the 2002 era), the "then" part of your clause governs in most cases. That is "it has overstepped its mandate."
Congressional oversight of the executive agencies involves the two elected branches working together to govern. Delegating more power to the unelected branch is not a healthy way for a republic to operate.
The Chevron scheme essentially leads a disfunctional Congress to abdicate all its regulatory power slowly but surely and to never claw it back. Why even have a Congress? Reversing Chevron might or might not help Congress get its pants back on, but it's worth a try, and I hope the SCOTUS does it. If it doesn't work, then we'll have to confront the possibility that the Founders' design no longer works and some serious reform is needed (though what that would be I've no idea).
Congress does not abdicate power at all. Congress is not prevented from regulating when it feels like doing so.
Just because some people do not like the results of their delegation does not mean that Congress is similarly dissatisfied with those same results. Some parties want Congress to be dissatisfied and exercise its powers. Congress regulated a single app made by a single company this week; Congress can act when it wants to do so.
I think it's pretty certain that under Chevron and w/o W. Virginia vs. EPA the EPA could ban ICEs tomorrow and the courts would allow it, and Congress would be unable to stop it, but that would be a very drastic thing to do and it should require debate, and we wouldn't get it. If you don't think that scenario is likely, there are others somewhat less extreme and more likely ones one could conjure up.
You can't pitch a hypothetical and say that since Congress wouldn't act in your hypothetical that they have in the real world abdicated their responsibility. I can equally make a hypothetical that says the EPA won't ban ICEs, or a hypothetical that says that EPA bans ICEs and Congress passes a law 24 hours later undoing the ban.
If Congress is disfunctional then every vague delegation of power can be abused by the Executive because Congress will not be able to say no after the fact. That means Congress stays disfuncitonal. That's not a good recipe.
Congress is dysfunctional because there is a populist political movement that does not believe in governing. Eventually, that fever will break. (Or they will succeed and we will lose the republic, in which case discussions about the efficacy of Congress become moot.)
I don't think so. People have been complaining about Congress' dysfunction for decades, even when it was fully in the hands of one or the other party. I don't think Congress' dysfunction has anything to do with partisanship. And yes, "populists" get to have a voice -- that's what it means to have a representative democracy and republic. If "populists" (or whatever) need to be negotiated with, so be it, but it's not intransigence that makes Congress dysfunctional. I suspect the problem here is that you want activist agencies to ratchet-like interpret power delegations ever more broadly as long as you agree with those interpretations, but that is a very risky game.
> suspect the problem here is that you want activist agencies to ratchet-like interpret power delegations ever more broadly as long as you agree with those interpretations
You're reading a lot into my expressed desire to keep regulation in the hands of the two elected branches.
Quite arguably, Congress deemed the precipitating questions were not "major questions" and expressed as much by delegating to agencies.