The Major Questions Doctrine

I recently spoke to an audience of individuals who are about to begin clerkships with federal judges and I told them that three of the most important words for their work will be “major questions doctrine.” My sense is that until recently relatively few judges or even law professors had heard of it. Now it is being used to challenge countless federal regulations. Based on the recent oral arguments, it appears that it will be the basis for the Supreme Court’s invalidating President Biden’s student loan forgiveness plan.

The major questions doctrine says that a federal agency may act on a major question of economic or political significance only if there is clear direction from Congress. As best I can tell, it originated in FDA v. Brown & Williamson Tobacco Corp. (2000). The Court ruled that the Food and Drug Administration lacked the authority to regulate, and even ban, tobacco products. The Court said there are “extraordinary cases” where the “history and the breadth of the authority that [the agency] has asserted,” and the “economic and political significance” of that assertion, provide a “reason to hesitate before concluding that Congress” meant to confer such authority.

But still rarely did the Court invoke the major questions doctrine until last year. In National Federation of Independent Business v. Occupational Safety and Health Administration, (2022), the Court, by a 6-3 decision, struck down a Biden administration regulation that mandated that employers with over 100 workers require that the employees be vaccinated against COVID or regularly tested. Although the Court’s opinion did not mention the “major questions doctrine,” Justice Neil Gorsuch explicitly invoked it in his concurring opinion and said that it was the basis for the Court’s decision.

In June 2022, in West Virginia v. Environmental Protection Agency, the Court handed down its most important major questions doctrine case. The Court held that the EPA lacked the authority to regulate greenhouse gas emissions from coal-fired power plants. These utilities are a major source of the pollution that significantly contributes to climate change. Chief Justice Roberts, writing for the majority in a 6-3 decision, said: “Under our precedents, this is a major questions case.” He said that “in certain extraordinary cases … The agency instead must point to ‘clear congressional authorization’ for the power it claims.”

The problem is that the Court gave little guidance as to what are “extraordinary cases,” or what is a “major question,” or what is sufficient congressional guidance to allow the agency to act in such circumstances. As a result, the Court has created a basis for challenging federal agency regulations of all sorts.

The major questions doctrine appears likely to be the basis for the Court’s decision in two recently argued important cases concerning the Biden administration’s attempt to relieve student loan burdens. On Feb. 28, the Court heard oral arguments in Biden v. Nebraska and Department of Education v. Brown concerning a Biden administration program where up to 40 million borrowers could receive up to $20,000 in cancellation of government-owned federal student loans. Over 26 million borrowers had applied for debt relief, and over 16 million were approved, before federal courts halted the initiative in the cases now before the Supreme Court. It was actually the Trump administration, in the midst of the pandemic, that began this debt relief. Now, though, it is conservative states and activists who are challenging the Biden administration’s actions.

The Biden administration claimed the authority to provide this debt relief under a federal law, the Health and Economic Recovery Omnibus Emergency Solutions Act, also known as the HEROES Act, which was adopted in 2003, after 9/11. It gives to the Secretary of Education the statutory authority to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs” in response to a “national emergency.” The Biden administration claims that the pandemic constitutes the national emergency.

At the oral argument, the conservative justices seemed poised to invalidate this on major question doctrine grounds. Chief Justice Roberts stressed that such a major effort, which could cost the federal government $400 billion, required more explicit congressional authorization.

What’s wrong with the major questions doctrine? First, “major question” never has been defined by the Court and likely is a concept that always will elude the precision required for a major legal doctrine. What is a major question of economic and political significance, and what is sufficient congressional authorization, are inherently ambiguous. The result is that the doctrine will be a license for courts to strike down federal regulations that they don’t like. It is so easy for the Court to label anything a major question and to say that Congress was not sufficiently specific.

Second, in invoking the major question doctrine, the Court is consistently ignoring the statutory language that empowers the federal agency. In West Virginia v. EPA, the Clean Air Act explicitly gave the EPA the authority to regulate pollution from stationary sources, which obviously includes coal fired power plants. Justice Elena Kagan in her dissent lamented this and declared: “Some years ago, I remarked that ‘[w]e’re all textualists now.’ It seems I was wrong. The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the “major questions doctrine” magically appear as get-out-of-text-free cards. Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed.”

In the student loan cases, the federal statute allows the government to “waive or modify” requirements. It is hard to think of clearer language than the power to “waive” loan obligations. Yet the Court is likely to say that this is not sufficiently specific to meet the major questions doctrine.

Finally, this is a huge shift in power from Congress and the Executive Branch to the federal courts. Agency actions that have been allowed for decades now are vulnerable to challenge. A conservative Court that has expressed hostility to the administrative state has created a weapon that can be used to invalidate regulations of all sorts that protect health and safety, that safeguard the environment, and that control business practices. It is stunning conservative judicial activism.