As the Supreme Court ended its term at the end of June, the Justices, on a 6-3 vote, invalidated an EPA rule designed to limit coal usage for electricity generation, a major component of the climate agenda. The Court's conservative majority invoked its "Major Questions" doctrine to limit the power of regulatory agencies. The doctrine is not new, but its application in the EPA case underscores the Court's greater willingness to put limits on the administrative state.
The Court is essentially saying that "major" policy initiatives should be enacted by Congress, not adopted by unelected regulators unless Congress clearly empowers an agency to make rules within appropriate, specified guidelines. The line between routine agency action and "major" policy initiatives, however, is not always clear. But the ruling has big implications for some key regulatory risks currently affecting the tech, telecom and health care industries. The FTC, for example, is now on notice that portions of its regulatory agenda against leading tech platforms -- Google, Amazon, Meta Platforms (Facebook) and Apple - may need to be dialed down or face ultimate invalidation by federal courts.
Health and Human Services has routinely relied on rulemaking to enact presidential policies since the Affordable Care Act (ACA) made health care a bipartisan issue. Most recently President Joe Biden declared he would fix the “family glitch” in the ACA, reversing a decade of IRS opinion. Progressives have been pressuring the White House to address drug prices in the absence of a bipartisan, bicameral agreement. Both of those things are now in doubt.
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