Perspectives from FSF Scholars July 15, 2022 Vol. 17, No. 36

But there is little doubt that the decision will be consequential for the administrative state and the interbranch relationships in the U. [...] Without even referring to the familiar Chevron inquiry, the Court in West Virginia relied entirely on the major questions doctrine by determining that the text and structure of the Clean Air Act did not clearly authorize EPA’s sweeping regulations. [...] Constitution, which reads: “All legislative Powers herein granted shall be vested in a Congress of the United States.” Given that the Constitution assigns all of the legislative power to Congress, it is proper for the Court to preserve the separation of powers by requiring a clear statement from Congress before executive branch officials exercise rulemaking powers—which constitute lawmaking—in ext. [...] If the courts were to apply the major questions doctrine to the long-running, bouncing-ball saga of the FCC’s authority to impose net neutrality regulation on internet service providers, this would constitute a good example of the salutary effect of further embedding the major questions doctrine in constitutional jurisprudence. [...] In that event, consistent with the Framers' intent in assigning Congress the lawmaking power, the people’s representatives will be accountable for their actions—or their inactions—at the ballot box and the Constitution’s separation of powers would be preserved.