Agency Enforcement Proceedings and the Major Questions Doctrine
In recent years, the Supreme Court has significantly checked the power of federal administrative agencies to change the law through the issuance of regulations. Footnote #1 content: See, e.g., Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2273 (2024) (repudiating Chevron deference). But in 2024, the Supreme Court turned its attention to the substantial power of agencies to enforce laws. In SEC v. Jarkesy, the Court held that the Constitution prohibited the Securities and Exchange Commission (SEC) from imposing civil monetary fines for securities fraud in an in-house enforcement proceeding. Footnote #2 content: 144 S. Ct. 2117, 2139 (2024). Especially in light of the Court’s expressed concerns about agencies abusing their enforcement powers, Footnote #3 content: See id. (refusing to “concentrate the roles of prosecutor, judge, and jury in the hands of the Executive Branch”); id. at 2140–41 (Gorsuch, J., concurring) (expressing skepticism about the fairness of agency adjudicative processes). the limits on those powers will likely receive renewed attention in the coming years.
This Article considers one important constraint on agency authority: the major questions doctrine. That doctrine ensures that agencies do not exercise major powers without clear congressional authorization. Footnote #4 content: See, e.g., West Virginia v. EPA, 597 U.S. 697, 723 (2022). By enforcing that rule, courts ensure that Congress—not agencies—plays the primary role in resolving pressing modern policy questions. Footnote #5 content: See id. at 735–42 (Gorsuch, J., concurring); Louis J. Capozzi III, In Defense of the Major Questions Doctrine, 100 NOTRE DAME L. REV. 509 (2025).
In the past few years, the Supreme Court has frequently applied the major questions doctrine to block agencies from changing the law by issuing regulations. But this raises a question: Does the doctrine apply when agencies attempt to change the law through enforcement proceedings?
The answer is yes. Although one recent article argued that the doctrine should be cabined to rulemaking, Footnote #6 content: See Todd Phillips & Beau J. Baumann, The Major Questions Doctrine’s Domain, 89 BROOK. L. REV. 747, 755–56 (2024) (arguing that the major questions doctrine should be cabined to rulemaking); see also Fred B. Jacob, The National Labor Relations Act, the Major Questions Doctrine, and Labor Peace in the Modern Workplace, 65 B.C. L. REV. 1381, 1437 (2024) (suggesting major questions doctrine should usually not apply to NLRB and focusing on its “reactive” regulatory approach in adjudications). Although no other article has focused on whether the major questions doctrine applies to agency enforcement actions, Chris Brummer, Yesha Yadav, and David Zaring recently suggested the doctrine would apply to agency efforts to regulate digital currencies through enforcement proceedings. See Chris Brummer et al., Regulation by Enforcement, 96 S. CAL. L. REV. 1297, 1328––29 (2024). the rationales behind the major questions doctrine apply with full force to agency enforcement proceedings—whether through in-house adjudications or enforcement actions in court. Although most cases featuring the major questions doctrine have featured rulemakings, the Supreme Court has also applied the major questions doctrine in the context of agency enforcement proceedings. Footnote #7 content: See Kent v. Dulles, 357 U.S. 116, 129–30 (1958) (applying the major questions doctrine to an agency in-house adjudication); ICC v. Cincinnati, New Orleans & Texas Pac. Ry. Co., 167 U.S. 479, 493, 511 (1897) (applying the major questions doctrine to an agency in-court enforcement proceeding); see also Gonzales v. Oregon, 546 U.S. 243, 248–49 (2006) (applying the major questions doctrine to an agency’s interpretive rule explaining how the agency would enforce statute). Whether analyzed using a formalist or functionalist approach to the separation of powers, Footnote #8 content: See generally Thomas A. Koenig & Benjamin R. Pontz, The Roberts Court’s Functionalist Turn in Administrative Law, 46 HARV. J.L. & PUB. POL’Y 221 (2023) (summarizing the formalist and functionalist approaches to administrative law). applying the major questions doctrine to enforcement proceedings is necessary to prevent agencies from exercising legislative power and unduly aggrandizing their authority at Congress’s expense.
This Article proceeds as follows. Part I briefly surveys the different modes of agency actions, focusing on how agencies change the law through the issuance of regulations, in-house adjudications, and in-court enforcement actions. Part II summarizes the major questions doctrine and its resurgence in recent years. Part III argues that the major questions doctrine should apply to enforcement proceedings. Part IV addresses counterarguments, including those offered in a recent article taking the contrary position. Footnote #9 content: Phillips & Baumann, supra note 6, at 755–56.
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