The word necessary may be defined as “absolutely needed.” The definition of the word standing alone invites no ambiguity. When the word is placed within the context of a sentence, however, the clarity of what is necessary, what is absolutely needed, becomes dependent on who is asked. For example, what measures are necessary to prevent the introduction, transmission, or spread of communicable diseases? Vaccines? Quarantines? Mask mandates? This question is undoubtedly ambiguous and is thus open to various reasonable answers. And if that is true, then which interpretation should be given priority?
These questions—while considerably simplified—are the exact questions courts around the country have spent decades asking when reviewing a federal agency’s interpretation of a Congressional statute. The source of law which guides this inquiry is familiar to anyone that has taken an administrative law class: Chevron, U.S.A, Inc. v. Natural Resource Defense Council. Arguably the most significant administrative law case of all time, the Chevron holding and colloquial “Chevron deference” have long provided agency interpretations of ambiguous statutes with a presumptive level of authority. This authority has enabled agencies like the Center for Disease Control (“CDC”) to implement forward-looking, robust policies that best protect the American public in the face of a health crisis. Importantly, agency authority under Chevron is not unlimited; there are necessary checks and balances in place to prevent overreach. However, the Chevron balancing act can sometimes cross the line into undue judicial and executive-level interference with agency authority.
When a global health crisis strikes, healthcare agencies have routinely relied upon their broad delegation of authority to implement forward-looking, combative policies. While agencies like the CDC are best positioned to handle the United States’ response to such a crisis, they are often hindered by executive-level interference. For example, in the infancy of the COVID-19 pandemic, then-President Donald Trump consistently contradicted the messaging of the CDC regarding the effectiveness of masks, the readiness of a vaccine, and the effects of the virus on children. President Trump and his advisors determined that his path to re-election would likely be more successful if the seriousness of the pandemic was downplayed. As a result, the administration effectively muzzled the voice of science by prohibiting the CDC from holding press briefings for the American public and questioning the credibility of career scientists at every turn.
Dr. Deborah Brix, one of Trump’s advisors, recognized that many deaths could have been prevented had President Trump not interfered so significantly with the work of scientific agencies. Unfortunately, the damage had already been done. The effects of undermining the knowledge of these agencies on a national stage are stark, and the American people suffered the direct consequences of executive-level interference with scientific and healthcare agency decision-making.
The U.S.’s handling of the COVID-19 pandemic was a categoric failure—largely in part due to this executive-level interference— which has created significant concerns among scientists and the public for the next major health crisis. However, with the Supreme Court’s recent decision in West Virginia v. Environmental Protection Agency, and the apparent rise of the “Major Questions Doctrine,” these agencies will potentially now have to contend with another significant interference: judicial.
The Major Questions Doctrine is a perplexingly complicated area of law. Five years ago, it may have been considered a “minor excrescence on administrative law,” but now there can be no doubts: major questions are here to stay. The Supreme Court’s invocation of this doctrine in West Virginia v. EPA has cemented its presence while providing little to no guidance of how it will be applied in the future.16 With that in mind, this Note enters the fray to argue the dangers of an unguided application of the Major Questions Doctrine in the lower courts—specifically concerning the review of the CDC’s statutory authority.
This Note casts a feverish eye towards a not-yet existent, but undoubtedly inevitable future health crisis. The COVID-19 pandemic saw excessive executive-level interference with federal agencies’ ability to perform their roles in protecting the American public, largely based on political posturing. As a result, scientists are politicized, standpoints on vaccines are polarizing, and views on masks are divisive. It has arguably become second nature for the American public to second guess the wisdom of scientific policy choices made by those with more expertise than themselves. This new attitude, coupled with the recent application of the Major Questions Doctrine, has created an environment for anti-regulation litigants to feel emboldened and unelected judges to question the authority of agencies more freely in the face of a national health crisis. Consequently, the Major Questions Doctrine needs serious clarification and restraint.
