The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In West Virginia v. EPA, the Supreme Court whole-heartedly embraced the major questions doctrine, under which agencies asserting broad regulatory powers implicating matters of exceptional economic or political significance must be able to identify a clear statement from Congress authorizing the exercise of such powers.
As a consequence of the West Virginia decision, litigants challenging governmental actions have found major questions lurking in all manner of regulatory disputes. In some cases, invocation of the major questions doctrine makes sense (see, e.g., concerns about the SEC climate disclosure rule or the student-debt forgiveness plan). In other cases, not so much.
One place one might not have expected to see the major questions doctrine pop up is in the proceedings concerning the D.C. Bar's ethics complaint against former Trump Administration Justice Department official Jeffrey Clark. In Clark's answer filed with the D.C. Court of Appeals Board on Professional Responsibility, however, the doctrine is invoked. Here is the relevant portion of the Clark's redacted filing:
22. EIGHTEENTH DEFENSE—D.C. BAR JURISDICTION WOULD VIOLATE THE MAJOR QUESTIONS DOCTRINE The D.C. Bar lacks jurisdiction over the conduct of the Respondent referred to in the Charges because 28 U.S.C. § 530B does not clearly delegate to the Department of Justice the power to confer on the District of Columbia authority to regulate lawyers serving in the Department of Justice, especially not those interacting with the President to deliberate and decide on questions that reach the President for resolution. See, e.g., West Virginia v. EPA, 142 S. Ct. 2587 (2022); Hickman v. Train, 426 U.S. 167 (1976); OLC Opinion. West Virginia establishes a clear statement rule known as the "major questions doctrine." Whether considered (1) as a class of questions (i.e., whether state and local bars can ever regulate internal Executive Branch deliberations on legal matters) or (2) an as-applied question of whether Respondent's legal advice and opinions on extant facts as rendered to the President and to his Department of Justice superiors concerning irregularities in the 2020 presidential election, major questions are presented. As such, any statute authorizing state, local, or D.C. regulation of such questions requires a clear statement from Congress delegating that power. These are major questions of both a political nature and implicate core features of federalism and/or the separation of powers. Id. at 2607-08; id. 2617, 2621 (Gorsuch, J., concurring) (doctrine protects both separation of powers and federalism).
[Edited] I have some major questions about this claim.