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In 2022, after years of hinting at the idea, the United States Supreme Court officially adopted the "major questions" doctrine in West Virginia v. EPA. 1 Commentators have already spilled plenty of ink trying to make sense of what this might portend,2 but so far seemingly everyone has accepted at face value the Court's framing of the issue that it confronted in that case. This essay offers a slightly different perspective on the decision and suggests that closer attention to the precise nature of the question posed therein might reveal a distinctive flaw at the heart of the majority's newfangled clear statement rule-as I will argue, it only sows confusion to conflate fundamental legal questions about jurisdiction (i.e., had Congress empowered an agency to act in a particular regulatory space?) and more policy-laden questions about the substantive merits of a rule (i.e., did the agency act in an arbitrary and capricious fashion?).3
Actually, a decision announced twenty-two years earlier often gets credit as the precursor for the major questions doctrine. In FDA v. Brown & Williamson Tobacco Corp., 4 the Supreme Court invalidated an agency effort to regulate the marketing of tobacco products as "restricted devices."5 The majority spoke with a single voice-in an opinion authored by Justice O'Connor-as did the four dissenters in an opinion authored by Justice Breyer. The conservative members of the Court seemingly set aside their usual commitment to textualism,6 while its liberal wing largely hewed to the statutory text in dissent.7 Even more striking than their contrasting approaches to the language appearing in various relevant statutes, both sides labored under serious misapprehensions about the operation of the federal Food, Drug & Cosmetic Act (FDCA).8
Previously, in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 9 the Supreme Court held that, unless Congress had spoken clearly to the precise issue presented, judges must defer to a reasonable agency interpretation of the latter's enabling statute.10 This position sprang in part from the view that Congress had intended to delegate interpretive authority to agencies rather than to the courts.11 What, however, about novel claims of jurisdiction that an agency had never before exercised, which begged the question of any congressional intent to delegate? The FDA's tobacco product regulations offered the Court a...