Three Doctrines, One Objective

How Federal Power Is Being Rewritten

Dr. Robert W. Malone

The effort to dismantle the administrative state is often described as a single project. It is not. It rests on three distinct legal doctrines, each operating in a different way. Together, they are reshaping the relationship between federal agencies, Congress, the courts, and the presidency.

In the span of a year, three major federal actions illustrated the shift.

The Environmental Protection Agency announced that it never possessed the authority to regulate greenhouse gas emissions from cars and trucks, despite exercising that power since 2009.¹

The Supreme Court blocked a federal vaccine mandate that would have applied to much of the American workforce.¹¹

A presidential order directed the Centers for Disease Control and Prevention to reduce the childhood vaccine schedule.¹⁴

Supporters of all three actions used similar language. Restore accountability. Rein in the administrative state. End government by unelected experts.

The concern is legitimate. Over the last century, the federal government developed a vast administrative apparatus that the Constitution never explicitly describes and voters never directly approved. Agencies increasingly write rules, enforce those rules, and adjudicate disputes arising from them. In practice, many exercise powers that look legislative, executive, and judicial at the same time.

For those influenced by the tradition of Friedrich Hayek and Ludwig von Mises, the criticism is straightforward. Bureaucracies cannot possess the knowledge they claim to command, and they operate without the feedback mechanisms that discipline markets, businesses, and elected officials.²³ ²⁵

But the legal revolution now underway is more complicated than many of its supporters realize.

The same doctrines being used to limit agency power can also strengthen presidential power. The same legal theories that constrain federal regulators can expand executive control over the bureaucracy. And one of the most important of these doctrines does not limit presidents at all. It empowers them.

To understand what is happening, it is necessary to separate three very different ideas that are often treated as one.

The Major Questions Doctrine

The major questions doctrine is the most frequently discussed of the three doctrines and, in many ways, the most consequential.

Its core principle is simple. When a federal agency claims the authority to decide an issue of major economic or political significance, courts will not assume Congress intended to grant that power. The agency must point to clear statutory language showing that Congress actually authorized it. Broad mandates, vague language, and decades-old statutes are not enough. If the power is significant, the authorization must be explicit.⁶

The Supreme Court’s formulation is memorable because it reflects common sense. Congress does not hide elephants in mouseholes. Lawmakers do not bury the authority to reshape entire industries, rewrite national policy, or regulate major sectors of the economy inside a few ambiguous words. If Congress intended to grant that authority, it should have said so clearly.

The doctrine did not emerge overnight. Its foundation can be traced to FDA v. Brown & Williamson in 2000, when the Court held that the Food and Drug Administration could not suddenly claim authority to regulate cigarettes as drugs or medical devices. For decades, the FDA itself had denied possessing that power, while Congress repeatedly enacted tobacco legislation without granting it. The Court concluded that an agency cannot discover sweeping authority in a statute that neither Congress nor the agency had previously understood to confer it.³

The doctrine became a central feature of administrative law in 2022 with West Virginia v. EPA. There, the Court struck down an Environmental Protection Agency plan that would have used an obscure provision of the Clean Air Act to reshape electricity generation across the United States.⁴

Its reach expanded further in 2024 when the Court decided Loper Bright Enterprises v. Raimondo and overturned Chevron deference, the forty-year rule requiring judges to defer to an agency’s interpretation of an ambiguous statute.⁵ After Loper Bright, ambiguity no longer works in the agency’s favor. Agencies must persuade courts that Congress actually granted the authority they claim.

The Court has never provided a precise definition of what qualifies as a “major question.” There is no formula, no dollar threshold, and no checklist.⁶ That uncertainty is not an oversight. It is the doctrine’s defining feature. The broader the claimed power and the greater its economic or political significance, the more likely a court is to demand clear authorization from Congress before allowing an agency to act.

Three Doctrines, Not One

The campaign against the administrative state draws on three separate legal ideas. They feel like allies because all three distrust unaccountable expert power. They are not the same, and they do not point the same way.

The first is executive accountability, grounded in the unitary executive theory and reinforced by the Federal Advisory Committee Act (FACA), the 1972 law governing federal advisory panels. The concern here is advisory bodies that have evolved into policymakers. The remedy is hierarchy. Committees advise. Agencies execute. Elected officials set policy. The President directs the executive branch and is accountable to voters for its actions. This is the framework behind the recent executive order on the childhood vaccine schedule and much of the current effort to reassert presidential control over federal agencies.²¹

The second is the major questions doctrine. Its target is an agency claiming authority to make decisions of enormous economic or political significance without a clear grant of power from Congress. The remedy is not greater presidential control. It is congressional responsibility. If a policy decision is important enough to affect the entire country, Congress must authorize it in plain language. In practice, the doctrine often operates as a deregulatory tool because it is easier to invalidate an agency action than to create a new one.⁸ More importantly, it limits presidents as much as bureaucrats. The authority it demands must come from Congress. Neither agencies nor presidents can supply it themselves.

The third is structural accountability, built on the Appointments Clause and the nondelegation doctrine. The Appointments Clause governs who may exercise federal power and how they must be appointed. The nondelegation doctrine asks whether Congress transferred too much of its legislative authority in the first place. The concern is not merely what a government body is doing, but whether it possesses constitutional authority to do it at all. This is the favored tool of the libertarian legal movement, the litigators at Cato, Pacific Legal Foundation, the Goldwater Institute, and the Association of American Physicians and Surgeons.²⁰

All three doctrines challenge the growth of the administrative state. All three seek greater accountability. But they are not interchangeable.

One strengthens presidential control over the executive branch.

One strengthens Congress at the expense of both agencies and presidents.

One asks whether the constitutional structure was violated from the beginning.

Three doctrines. Three targets. Three different answers to the same question: who gets to govern?

The differences become clear when we examine the three federal actions that opened this article. Each was driven by a different theory of accountability and emerged from a different understanding of where federal power should reside.

The Sword: EPA Discovers It Never Had the Power

In February 2026, the EPA rescinded the Obama administration's 2009 endangerment finding, the determination that greenhouse gases threaten public health and welfare. That finding was personally championed by Obama, and had served as the legal foundation for federal greenhouse gas regulations on cars and trucks for nearly two decades. Once the finding was withdrawn, the agency repealed the vehicle emissions standards that were based on it.¹

EPA Administrator Lee Zeldin described the action as the largest deregulatory measure in American history, claiming that it would deliver more than $1.3 trillion in economic benefits.² Those figures come from the agency itself and should be understood as EPA’s estimate rather than an established fact.

The more important story is actually the legal theory.

EPA did not simply argue that the regulations were misguided or ineffective. Under EPA Administrator Lee Zeldin’s leadership, it argued that the agency never possessed the authority to impose them in the first place. The foundation for that argument was the major questions doctrine.

This is the doctrine operating as a sword rather than a shield.

Traditionally, the major questions doctrine is invoked by challengers seeking to stop an agency from exercising power that Congress never clearly granted. Here, the agency itself invoked the doctrine to dismantle a regulatory regime that had existed for years by declaring that the underlying authority never existed.

That is a remarkable reversal.

In 2007, the Supreme Court ruled in Massachusetts v. EPA that the agency possessed authority under the Clean Air Act to regulate greenhouse gas emissions from motor vehicles.⁷ The EPA lost that case because it argued the opposite position. Nearly twenty years later, the same agency returned with the same statute and the same subject matter, but reached the opposite conclusion.

The tension is not merely political. It is doctrinal.

The major questions doctrine asks a straightforward question: did Congress clearly grant this power? If the answer is no, the agency cannot act. What the doctrine was never designed to answer is the reverse question: whether an agency is required to dismantle an existing regulatory framework after concluding that the original grant of authority was unclear.

What EPA has done is turn the major questions doctrine around and point it in the opposite direction. The doctrine was created to stop agencies from discovering powers Congress never clearly granted. EPA is using it to justify dismantling a regulatory system that already exists.

That may prove to be legally correct. But it is not the doctrine acting as a brake on administrative power. It is an administrative agency invoking the doctrine as authority for a major policy choice of its own. The outcome is less regulation. The mechanism is still executive action.

Whatever one thinks of the outcome, this is not the “major questions doctrine” functioning as a shield against administrative power. It is the doctrine being wielded as a sword.

The Shield: When the Doctrine Works as Designed

The OSHA vaccine mandate shows the major questions doctrine operating in its traditional form.

In January 2022, the Supreme Court blocked the Occupational Safety and Health Administration’s rule requiring vaccination or testing for employees at large businesses, a mandate that would have applied to roughly eighty million workers. The Court’s reasoning was straightforward. The policy carried enormous economic and political consequences, yet OSHA could point only to a broad and general statutory grant. Congress had never clearly authorized the agency to impose a public health mandate of that scale.¹¹

This is the doctrine functioning as intended.

An agency claimed authority to make a major national policy decision. The Court asked where Congress had clearly granted that authority. The agency could not provide an answer. The mandate fell.

The same week revealed the limits of the doctrine as well.

The Court allowed a different vaccine mandate to remain in effect, the Centers for Medicare and Medicaid Services requirement that workers at facilities receiving Medicare and Medicaid funds be vaccinated. The distinction was not the subject matter. Both cases involved vaccines. The distinction was the statute. CMS possessed longstanding authority to establish conditions for participation in federal healthcare programs. OSHA relied on a general workplace safety statute that was being stretched to cover something new.¹²

The doctrine treated the two cases differently because the statutes were different.

That same pattern appeared in the CDC eviction moratorium case a year earlier. The agency relied on broad public health language to justify a sweeping intervention into the national housing market. The Court concluded that Congress had never clearly authorized such a measure.¹³ The policy may (or may not) have been desirable. The agency may have believed it necessary. Neither was enough.

The major questions doctrine does not ask whether a policy is wise. It asks who has the authority to make it.

Where the statutory grant is specific, agency action can survive.

Where the statutory grant is broad, vague, or inferred, agency action is vulnerable.

That is the doctrine operating as a shield. It does not transfer power to the President. It does not create new authority for agencies. It simply blocks major exercises of power that Congress did not clearly authorize.

For that reason, a nationwide vaccine mandate imposed through agency action alone is now on exceptionally weak legal ground.

The Wrong Key: Why the Major Questions Doctrine Does Not Fit

The third action does not fit the pattern of the first two.

In May 2026, President Trump signed an executive order titled Realigning United States Core Childhood Vaccine Recommendations With Best Practices from Peer, Developed Countries. The order directs CDC and ACIP to review a January HHS assessment and revise the childhood schedule “to the extent permitted by law.”¹⁴ That assessment recommended reducing the routine childhood schedule from seventeen vaccines to eleven.¹⁵ At the same time, the order sought to preserve the existing coverage framework so that vaccines remaining on the schedule would continue to be covered without cost-sharing.¹⁶

Many observers immediately reached for the major questions doctrine.

It is the wrong doctrine.

Part of the confusion is understandable. The major questions doctrine has become the best-known legal weapon against the administrative state, so many commentators instinctively reach for it whenever a major federal policy is challenged.

But that is not where the real fight is. The central legal battles over this order involve FACA, the Administrative Procedure Act, the Appointments Clause, and the nondelegation doctrine.

The dispute is not whether CDC and ACIP possess authority to make vaccine recommendations. It is whether those institutions are structured and operating in a manner consistent with federal law and the Constitution.

The major questions doctrine is designed to stop agencies from claiming powers Congress never clearly granted. It is a doctrine of restraint. It asks whether an agency has discovered (or appropriated) authority that was never actually given to it.

That is not what is happening here.

The CDC and ACIP have long possessed authority to make vaccine recommendations. The childhood schedule itself was assembled through that process over many years. No statute requires seventeen vaccines rather than eleven. If these bodies possess authority to recommend a vaccine, they necessarily possess authority to stop recommending it. The power is the same.

Nor is an executive order itself the agency action a court reviews. The order simply directs executive branch officials. What a court ultimately reviews is whatever action CDC and ACIP take in response. And that action would involve those bodies exercising authority they have long exercised, not claiming some new and transformative power.

The real legal vulnerabilities lie elsewhere.

They lie in FACA, the Administrative Procedure Act, the Appointments Clause, and the nondelegation doctrine. In fact, the litigation has already begun. In March 2026, a federal judge halted an earlier schedule reduction and blocked the reconstituted ACIP, not because of the major questions doctrine, but because of alleged defects under FACA and the APA.¹⁷ The executive order’s careful phrase, “to the extent permitted by law,” reflects an awareness of exactly those challenges.²²

The irony is that the same statute appears on both sides of the fight. Supporters of reform invoke FACA to argue that ACIP should function as an advisory body rather than an independent policymaker. Opponents invoke FACA to challenge how the committee was restructured. The same law supplies arguments for both camps.

The deeper problem lies in the coverage system the order deliberately preserved.

For decades, Congress and the executive branch built a recommendation-to-mandate pipeline around ACIP. An ACIP recommendation triggers no-cost insurance coverage, obligations under Medicaid and CHIP, eligibility under the Vaccines for Children program, and protections under the National Childhood Vaccine Injury Act.¹⁸

The administration’s policy depends on that machinery continuing to exist.

But that machinery is also under constitutional attack. In Kennedy v. Braidwood, the Supreme Court upheld one advisory-body structure while leaving unresolved challenges to ACIP itself.¹⁹ Those challenges remain alive in the lower courts. If they ultimately succeed, they do not merely weaken mandates. They undermine the mechanism the administration needs to make its preferred vaccine schedule durable, funded, and enforceable.

That is the collision point between the three doctrines.

The executive order is defended in the language of executive accountability. Elected officials direct. Advisory committees advise. Agencies execute.

The major questions doctrine points somewhere else. It asks whether major national policies should rest on agency discretion at all.

And the structural-accountability doctrines go further still. They ask whether the institutions making these decisions were constitutionally constructed in the first place.

The result is a paradox. The same legal movement that seeks to reduce the power of administrative agencies is now relying on executive authority to reshape one of the most important administrative programs in the country.

An executive order can be reversed by the next president. It can be delayed by litigation. It can be narrowed by the courts.

The major questions doctrine can stop a policy. It cannot make one permanent.

For that, Congress still matters.

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The Austrian Question

The Austrian school of economics has spent more than a century examining exactly this kind of problem.

In his essay The Use of Knowledge in Society, Friedrich Hayek argued that the information needed to manage a complex society is never concentrated in one place. It exists in countless fragments dispersed among millions of individuals. No central planner can fully assemble it, much less act on it effectively. The error is not merely technical. It is the belief that experts possess a level of knowledge they cannot actually obtain. Hayek later gave the mistake its enduring name: the pretense of knowledge.²³ ²⁴

Ludwig von Mises identified a related problem. Bureaucracies do not operate under the discipline of profit and loss. They receive no market signal telling them when they have failed. A business that makes bad decisions eventually pays a price. An agency often does not. It expands, accumulates authority, and corrects course only when external forces compel it to do so.²⁵

Regulatory capture completes the picture. Over time, agencies, professional societies, regulated industries, and advocacy groups can form a closed policy ecosystem. The public remains formally represented but increasingly loses influence over decisions made in its name. Whether the subject is vaccines, emissions, energy, finance, or healthcare, the pattern is familiar.

By that measure, the impulse behind all three actions discussed in this article is understandable. Pulling decisions away from insulated expert networks and returning them to politically accountable institutions is a legitimate objective.

But the Austrian tradition is not fundamentally a deregulatory project.

It is a rule-of-law project.

Those are not the same thing.

Hayek did not argue for the absence of rules. He argued for the right kind of rules: general, predictable, stable, knowable in advance, and applied equally to citizens and governments alike. Such rules allow people to plan their lives because they can reasonably predict the legal environment in which they operate. The enemy is not regulation itself. The enemy is arbitrary power.²⁶

Viewed through that lens, the major questions doctrine produces a mixed verdict.

At its best, the doctrine strengthens the rule of law. It pushes major policy decisions back toward Congress and demands that lawmakers speak clearly when they authorize significant exercises of government power. Citizens can read the law. Legislators can be held accountable for it. That is a genuine improvement.

At its worst, the doctrine risks replacing one form of discretion with another.

A doctrine built around a term as undefined as “major” inevitably leaves substantial room for judicial judgment. If neither agencies nor citizens can predict when a court will deem a question sufficiently major to trigger heightened scrutiny, certainty is reduced rather than increased. Discretion has not disappeared. It has merely changed hands.

The same concern applies to executive action.

A regulatory regime created through one administration’s interpretation of an old statute and dismantled through the next administration’s reinterpretation of that same statute is not a system of stable law. Neither is a national vaccine policy established by executive order and destined to be reversed when political control changes. Such policies may be legal. They may even be wise. But they remain exercises of discretionary power rather than durable law.

The Austrian question is therefore different from the partisan question.

It is not: Which side benefits from this doctrine today?

It is: Does this produce a system governed by stable, predictable rules, or by the changing preferences of whoever currently holds power?

By that standard, the ultimate solution is neither regulation by agency nor deregulation by executive order.

It is Congress writing clear law.

That is the one outcome most consistent with the rule of law, the one outcome these doctrines increasingly demand, and the one outcome a deeply divided Congress appears least capable of delivering.

The Paradox of an Empowered Congress

The three doctrines examined here all promise the same thing: less power for agencies and greater accountability.

But power never disappears. It only moves.

When authority leaves the administrative state, it goes somewhere else. Some of it goes to the courts, which now decide what counts as a major question, what an old statute means, and whether an agency has crossed a constitutional line. Some of it is supposed to return to Congress, which is expected to write the clear laws the courts increasingly demand.

The courts will take their share.

Congress is the real question.

If there is one responsibility the Constitution assigns exclusively to Congress, it is the power of the purse. Article I gives spending authority to the legislature and to no one else. Before Congress regulates, investigates, or declares war, it must first decide what government will spend and what government will do.

Even that basic responsibility now strains the institution.

Since the modern budget process was adopted in the 1970s, Congress has completed all twelve annual appropriations bills on time only four times. The last was for fiscal year 1997.²⁷ In most years, Congress does not finish even one by the statutory deadline. Instead, it relies on continuing resolutions, temporary extensions that simply carry forward the previous year’s spending while lawmakers postpone difficult decisions. There have been more than two hundred continuing resolutions since 1977, and the federal government now spends much of its life operating under temporary funding measures rather than actual budgets.²⁸

The current fiscal year is not an exception. It is the pattern.

Fiscal year 2026 began with no completed appropriations bills and a government shutdown. Funding arrived through a series of temporary measures, partial appropriations, further delays, and additional stopgap extensions.²⁹ ³⁰ The year before was funded almost entirely through continuing resolutions.³¹

This is the institution that the major questions doctrine increasingly relies upon.

The doctrine assumes a Congress willing and able to write clear laws for major national questions. Yet Congress routinely struggles to perform the most fundamental legislative task it possesses. It cannot consistently decide what government will spend, much less provide detailed statutory guidance across the entire regulatory state.

The administrative state did not grow by conquest.

It grew by abdication.

Congress delegated authority because legislating is difficult. It requires compromise. It requires accepting responsibility for outcomes. It requires casting votes that can be used in the next election. Agencies offered a way around those costs. Difficult decisions could be transferred to experts. Political accountability could be diluted. Members could take positions without bearing full responsibility for results.

The continuing resolution is simply the same instinct turned inward. Rather than make a decision, Congress extends the last one. Rather than accept responsibility, it postpones it. Rather than legislate, it waits for deadlines, crises, shutdown threats, or last-minute omnibus bills to force action.

The major questions doctrine closes one escape route. It tells agencies they may no longer decide issues that Congress itself refused to decide.

What it cannot do is change the incentives that caused Congress to delegate those decisions in the first place.

No court can force a legislature to want its authority back.

The optimistic view is that removing power from agencies will force Congress to reclaim its constitutional role. Perhaps it will.

The evidence points the other way.

When authority is stripped from agencies, it does not automatically return to Congress. Instead, it accumulates in the institutions that remain capable of acting: the courts and the presidency. Judges decide what statutes mean. Presidents issue executive orders. One administration acts. The next reverses course. Litigation fills the gaps Congress leaves behind.

The great paradox is that the legal movement seeking to restore legislative authority depends on a legislature that has spent half a century proving how little interest it has in exercising it.

The doctrine is built on the idea that Congress should decide the nation’s most important questions. The difficulty is that Congress increasingly refuses to decide them.

The Activism of Restraint

Power does not disappear when it leaves the agencies.

It lands in the courts.

The legal movement that developed these doctrines did so in the name of judicial restraint. Originalism and textualism were designed to limit judicial discretion by tying judges to the words of a statute and the meaning those words carried when enacted. For decades, the movement’s central complaint was judicial activism: unelected judges imposing policy preferences under the guise of interpretation.

The major questions doctrine creates a complication.

Unlike a traditional rule of interpretation, it does not supply a clear boundary. Its central term, “major,” has no fixed definition. Courts decide case by case which questions are sufficiently significant to require an exceptionally clear statement from Congress. But significance is not a textual category. It is a judgment.

With Chevron deference gone, judges no longer defer to an agency’s interpretation of an ambiguous statute. They supply their own. Combine that development with the major questions doctrine, and the courts become the final arbiters of vast areas of public policy, from environmental regulation to healthcare to energy and beyond.

Not because Congress expressly assigned them that role.

Because the doctrine increasingly sends every difficult question there.

This is judicial power assembled in the language of restraint.

The tension has not gone unnoticed. Even some textualist and originalist scholars have argued that the doctrine sits uneasily with the principles it claims to advance. If a statute means what its text says, they argue, then the importance of the policy at issue should not change the method of interpretation. A doctrine that alters its approach when the stakes become sufficiently large begins to look less like a neutral rule of construction and more like a substantive preference.³²

The problem returns us to the same question raised by the Austrian critique.

The rule of law requires rules that are general, predictable, and knowable in advance. Citizens should not have to guess which statutes will be treated as ordinary and which will be deemed major. Agencies should not have to predict how a future court will measure significance. Congress should not have to legislate in the shadow of standards that no one can clearly define.

Otherwise, discretion has not been eliminated.

It has merely been relocated.

First from Congress to the agencies.

Then from the agencies back to the courts.

The label changes. The underlying problem does not.

The conservative legal project set out to reduce government by unaccountable experts. In a political system where Congress increasingly refuses to legislate, the practical effect may be to increase government by unaccountable judges.

That is not necessarily a contradiction. It may simply be what happens when the institutions that are supposed to make the law stop doing so.

What This Means

For Congress, the message is straightforward.

The courts are increasingly demanding clear legislative authorization for major national policies. Yet Congress has shown remarkably little ability to provide it. Durable policy now requires legislation, and recent decades suggest that legislation is precisely what Congress struggles to produce. The hard decisions are being returned to the branch that has spent half a century finding ways to avoid making them.

For agencies and presidents, the lesson is equally clear.

The soft instruments of government are becoming less durable. Guidance documents, advisory recommendations, agency interpretations, executive orders, and informal exercises of administrative power all stand on shakier ground than they did a decade ago. Policies created through those mechanisms can still be implemented. They are simply less likely to survive a challenge and less likely to outlast the administration that created them.

The March 2026 ruling against the vaccine schedule change illustrates the point as clearly as any reversal of a prior administration’s policy. Increasingly, if Congress wants a policy to endure, Congress must enact it. Broad delegations of authority and administrative workarounds are becoming less reliable substitutes for legislation.

For the courts, the difficult questions are only beginning.

What qualifies as a major question? Can the doctrine continue to be used offensively to dismantle existing regulatory structures? How far will courts push structural-accountability theories involving FACA, the Appointments Clause, and nondelegation? What happens if challenges to ACIP’s legal architecture ultimately succeed?

Those questions will shape the next phase of the administrative-state debate.

Beneath all of them lies a deeper problem.

If major policies can be created by one administration’s interpretation of an old statute and dismantled by the next administration’s reinterpretation of the same statute, stability becomes impossible. Every election becomes a struggle not merely over policy but over the meaning of the laws already on the books. One administration builds. The next tears down. The one after that builds again.

That is not a system governed by settled law.

It is government by oscillation.

A free society depends on rules that are durable enough for citizens, businesses, institutions, and states to plan around them. A legal regime that changes direction every four or eight years may expand liberty in one moment and restrict it in the next, but it cannot provide the predictability that liberty ultimately requires.

The greatest risk is not that one side wins.

It is that nothing ever stays settled long enough for self-government to work.

The Branch That Cannot Act

Three doctrines. One target. Three different destinations.

A doctrine worth having is one you would accept in the hands of your opponents.

A rule worth keeping is one that binds the people who created it.

A limit on power is only a limit if it still applies when your own side holds power.

The major questions doctrine revives a legitimate principle. It insists that major national decisions should rest on clear legislative authority rather than administrative improvisation. But it comes with costs: discretion shifted to judges, a persistent deregulatory bias, and a legal landscape in which major policies become increasingly provisional.

Its greatest virtue may be that it does not care who holds office.

The doctrine that restrains a Biden administration restrains a Trump administration. The doctrine that blocks one executive action can be used to block the next. That neutrality is the source of its legitimacy, even if it is often the feature its supporters are least eager to discuss.

In theory, the doctrine returns major questions to Congress, the branch closest to the voter and the institution the Constitution expects to make law.

In practice, Congress increasingly refuses the assignment.

The result is a transfer of power that looks different from the one many expected. Questions that agencies can no longer answer do not automatically return to the legislature. They flow instead to the courts, which must decide what statutes mean, what powers were delegated, and what questions are sufficiently major to require something more. And of course, it is the courts that have decided the structures resulting in the functional transfer of power to the courts.

The branch that will not act hands its work to the branch that cannot avoid acting.

A movement that set out to reduce the influence of unelected officials has, at least for now, increased the influence of the least elected officials in the American system.

That may be a flaw in the doctrine. Or it may be a hidden intention.

Or it may simply be what happens when a constitutional system built on legislation encounters a legislature that no longer legislates.

The next decade will tell us which.

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References

1. U.S. Environmental Protection Agency, “Rescission of the Greenhouse Gas Endangerment Finding and Motor Vehicle Greenhouse Gas Emission Standards Under the Clean Air Act,” final rule, Federal Register doc. 2026-03157 (Feb. 18, 2026), https://www.federalregister.gov/documents/2026/02/18/2026-03157/rescission-of-the-greenhouse-gas-endangerment-finding-and-motor-vehicle-greenhouse-gas-emission ; EPA fact sheet 420F26003 (Feb. 12, 2026), https://www.epa.gov/system/files/documents/2026-02/420f26003.pdf.

2. EPA statement attributing “the single largest act of deregulation” and the $1.3 trillion figure to the agency; see also World Resources Institute, “EPA’s Endangerment Finding Repeal, Explained” (Feb. 19, 2026), https://www.wri.org/insights/endangerment-finding-repeal-explained.

3. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).

4. West Virginia v. EPA, 597 U.S. 697 (2022).

5. Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).

6. Congressional Research Service, “The Major Questions Doctrine,” In Focus IF12077, https://www.congress.gov/crs-product/IF12077.

7. Massachusetts v. EPA, 549 U.S. 497 (2007).

8. Lisa Heinzerling and others on the deregulatory asymmetry of the doctrine; “The National Security Consequences of the Major Questions Doctrine,” Michigan Law Review (2025), https://michiganlawreview.org/journal/the-national-security-consequences-of-the-major-questions-doctrine/ ; Institute for Policy Integrity, “Statutory Interpretation and Deregulation,” https://policyintegrity.org/files/publications/Statutory_Interpretation_and_Deregulation_Issue_Brief_vF.pdf.

9. Executive Order, “Directing the Repeal of Unlawful Regulations” (Apr. 9, 2025); analysis in Arnold & Porter, “Deregulatory Executive Orders: Issues Under the Administrative Procedure Act” (Apr. 16, 2025), https://www.arnoldporter.com/en/perspectives/advisories/2025/04/deregulatory-eos-issues-under-the-apa.

10. HHS and FDA, “HHS, FDA Issue RFI on Deregulatory Plan to Lower Costs and Empower Providers” (May 13, 2025), https://www.fda.gov/news-events/press-announcements/hhs-fda-issue-rfi-deregulatory-plan-lower-costs-and-empower-providers ; Holland & Knight, “HHS, FDA Issue Request for Information to Support Administration’s Deregulatory Agenda” (May 14, 2025), https://www.hklaw.com/en/insights/publications/2025/05/hhs-fda-issue-request-for-information-to-support-administrations.

11. National Federation of Independent Business v. Department of Labor, OSHA, 595 U.S. 109 (2022) (per curiam).

12. Biden v. Missouri, 595 U.S. 87 (2022) (per curiam).

13. Alabama Association of Realtors v. Department of Health and Human Services, 594 U.S. 758 (2021) (per curiam).

14. The White House, Executive Order, “Realigning United States Core Childhood Vaccine Recommendations With Best Practices from Peer, Developed Countries” (May 29, 2026), https://www.whitehouse.gov/presidential-actions/2026/05/realigning-united-states-core-childhood-vaccine-recommendations-with-best-practices-from-peer-developed-countries/ ; CBS News, “Trump signs order directing CDC to align with assessment calling for fewer childhood vaccines” (May 29, 2026), https://www.cbsnews.com/news/trump-executive-order-cdc-childhood-vaccines/.

15. CDC, “CDC Acts on Presidential Memorandum to Update Childhood Immunization Schedule” (Jan. 5, 2026), https://www.cdc.gov/media/releases/2026/2026-cdc-acts-on-presidential-memorandum-to-update-childhood-immunization-schedule.html ; Fierce Healthcare, “Trump signs off on HHS overhaul of childhood vaccine schedule with new executive order” (Jun. 1, 2026), https://www.fiercehealthcare.com/regulatory/trump-signs-hhs-overhaul-childhood-vaccine-schedule-new-executive-order.

16. American Hospital Association, “President signs EO on childhood immunization schedule” (Jun. 1, 2026), https://www.aha.org/news/headline/2026-06-01-president-signs-eo-childhood-immunization-schedule.

17. American Academy of Pediatrics v. Kennedy, U.S. District Court for the District of Massachusetts (Mar. 16, 2026); NPR, “Federal judge halts RFK Jr.’s changes to children’s vaccine policies” (Mar. 16, 2026), https://www.npr.org/2026/03/16/nx-s1-5749530/judge-blocks-rfk-jr-vaccine-changes ; NBC News, “RFK Jr. rewrites rules on CDC panel after judge blocks vaccine changes” (Apr. 7, 2026), https://www.nbcnews.com/health/health-news/rfk-jr-rewrites-rules-cdc-panel-lawsuit-vaccine-changes-rcna267069.

18. Congressional Research Service, “Changes to CDC Vaccine Recommendations in 2025 and 2026,” Insight IN12684, https://www.congress.gov/crs-product/IN12684 ; KFF, “ACA Preventive Services Are Back at the Supreme Court: Kennedy v. Braidwood,” https://www.kff.org/womens-health-policy/issue-brief/aca-preventive-services-supreme-court-kennedy-braidwood/.

19. Kennedy v. Braidwood Management, Inc. (U.S. Jun. 27, 2025); KFF, “Kennedy v. Braidwood: The Supreme Court Upheld ACA Preventive Services but That’s Not the End of the Story,” https://www.kff.org/affordable-care-act/kennedy-v-braidwood-the-supreme-court-upheld-aca-preventive-services-but-thats-not-the-end-of-the-story/.

20. Georgetown Law, Health Care Litigation Tracker, “Braidwood Management, Inc. et al. v. Kennedy et al.” (amici including Cato Institute, Pacific Legal Foundation, Goldwater Institute, and the Association of American Physicians and Surgeons), https://litigationtracker.law.georgetown.edu/litigation/braidwood-management-inc-et-al-v-xavier-becerra-et-al-3/.

21. Robert W. Malone, “The Executive Order That May Change the Vaccine Debate Forever,” Malone News (May 30, 2026), https://www.malone.news/p/the-executive-order-that-may-change.

22. Medscape, “Executive Order on Vaccine Schedule ‘Flies in the Face’ of Federal Ruling” (Jun. 3, 2026), https://www.medscape.com/viewarticle/executive-order-vaccine-schedule-flies-face-federal-ruling-2026a1000iik.

23. F. A. Hayek, “The Use of Knowledge in Society,” American Economic Review 35, no. 4 (1945): 519-530.

24. F. A. Hayek, “The Pretence of Knowledge,” Nobel Memorial Lecture (Dec. 11, 1974).

25. Ludwig von Mises, Bureaucracy (New Haven: Yale University Press, 1944).

26. F. A. Hayek, The Constitution of Liberty (Chicago: University of Chicago Press, 1960); and The Road to Serfdom (Chicago: University of Chicago Press, 1944).

27. Pew Research Center, “Congress has long struggled to pass spending bills on time” (Oct. 1, 2025), https://www.pewresearch.org/short-reads/2025/10/01/congress-has-long-struggled-to-pass-spending-bills-on-time/.

28. Congressional Research Service, “Continuing Resolutions: Overview of Components and Practices,” R46595, https://www.congress.gov/crs-product/R46595 (all twelve regular appropriations bills enacted on time only four times since FY1977, and 207 continuing resolutions enacted from FY1977 through FY2025).

29. Congressional Research Service, “Overview of Continuing Appropriations for FY2026 (Division A of P.L. 119-37),” R48765, https://www.congress.gov/crs-product/R48765 ; H.R. 5371, 119th Congress, https://www.congress.gov/bill/119th-congress/house-bill/5371 (the funding lapse beginning October 1, 2025, and the continuing resolution through January 30, 2026).

30. Committee for a Responsible Federal Budget, “Appropriations Watch: FY 2026,” https://www.crfb.org/blogs/appropriations-watch-fy-2026 ; International Economic Development Council, “Federal Funding Update: FY 2026 Appropriations and January 30 Deadline” (Jan. 28, 2026), https://www.iedconline.org/news/2026/01/28/federal-policy-updates/federal-funding-update-fy-2026-appropriations-and-january-30-deadline/.

31. Bloomberg Government, “What a Continuing Resolution Means for Appropriations Strategy” (Aug. 7, 2025), https://about.bgov.com/insights/budget-appropriations/what-a-continuing-resolution-means-for-federal-contractors-agencies-and-appropriations-strategy/ (fiscal year 2025 funded entirely through continuing resolutions, including a full-year measure signed March 15, 2025).

32. On the doctrine’s tension with textualism and its lack of defined limits, see Cato Institute, “Responding to the New Major Questions Doctrine” (Summer 2023), https://www.cato.org/regulation/summer-2023/responding-new-major-questions-doctrine ; and Ballotpedia, “Major questions doctrine,” https://ballotpedia.org/Major_questions_doctrine.