Asking the Rights Questions: An Emgerency Action Exception to the Major Questions Doctrine

Congress delegates broad discretionary power to administrative agencies to respond to emergency situations, taking advantage of their extraordinary expertise and response speed. Yet these delegations are defined by a judicial rule known as the “Major Questions Doctrine.” The Major Questions Doctrine seeks to protect the separation of powers by preventing excessive use of executive power without clear delegation by Congress. Where a “major question” of vast economic or political significance is raised, it requires “clear” authorization in the delegating statute. During COVID-19, the Supreme Court used the doctrine to strike down several response programs, including: the Center for Disease Control’s eviction moratorium, the Occupational Safety and Health Administration’s vaccine mandate, and the Secretary of Education’s student loan forgiveness program. Applying the doctrine to emergency actions like these defeats congressional purpose and stifles critical relief policies. This Note argues that certain emergency actions by agencies should be exempt from the Major Questions Doctrine. Three main arguments support the need for an exception. First, the doctrine wrongly asks for clear language in statutory schemes which were meant to be flexible and discretionary. Second, the separation of powers motivations behind the doctrine are not implicated in temporary and conditional emergency provisions. Finally, emergency policy is better handled by specialized agencies with the technical expertise and speed necessary to address complex, time- sensitive issues. This Note concludes by proposing the framework for an exception which asks the right questions—noting relevant factors to define an emergency action, discussing the significance of prior congressional policy, and highlighting other checks and balances at play.