Bloomberg Law
Nov. 14, 2022, 2:00 AM

ANALYSIS: Is This the Calm Before 2023’s Major Questions Storm?

Erin Webb
Erin Webb
Legal Analyst

Citations to the major questions doctrine in federal court and US Supreme Court filings dipped overall in 2022. But the major questions doctrine isn’t going anywhere.

Controversial actions by the Securities and Exchange Commission and the Department of Education will lead a wave of new major questions challenges in 2023.

Major Questions Citations: A Lull

Before Chief Justice John Roberts formally adopted the major questions doctrine in his majority opinion in West Virginia v. EPA, there had been a noticeable uptick in cites to the doctrine in federal court filings over the past few years.

Surprisingly, the number of federal filings containing the phrase “major questions doctrine” so far this year (45) is on pace to drop from 2021 (93), according to Bloomberg Law dockets searches. The number is still well up from previous years, though.

Citations to the major questions doctrine are also particularly sparse in filings with the Supreme Court this term. Both drops may be explained by the lifting of Covid-related restrictions, which were a hotbed for major questions challenges to agency actions through 2021. Or potential litigants may be taking time to assess recent rulings to figure out how to best apply them to their case.

But don’t be fooled by the respite—the clouds are gathering.

Winds of Conflict

The major questions doctrine asks—as the first and most important inquiry—whether an agency’s action has a large impact. For that reason, the doctrine is particularly likely to be applied in cases about hotly contested policy issues.

Under the doctrine, it’s highly unlikely that a court will deem a question as being “major,” and then conclude that the agency had the power to act.

The doctrine is inextricably tied up with opposing political philosophies about how much government regulation is prudent: a perfect setup for more federal courts disagreeing with each other next year.

The Scope of Environmental Reporting

Flashes of regulatory lightning at the SEC foretell the looming thunderclap of a major questions challenge. A forthcoming SEC regulation would require public companies to disclose the climate impacts of their businesses. Several commenters have already referenced the major questions doctrine, arguing that the disclosures go beyond the SEC’s authority.

Other comments favor the new regulation, and one such commenter linked to his article discussing why the doctrine doesn’t apply to the SEC’s proposed rule.

This opens the door for the SEC—like the EPA in West Virginia—to address the doctrine in its final rule. The rule was recently pushed back, but the final language may give a preview of arguments in the inevitable litigation ahead, one of which will certainly be the major questions doctrine.

Student Loans: Too Major to Forgive?

Next year may see a flood of major questions cases in federal courts concerning student loans.

The Department of Education announced a student loan forgiveness program earlier this year, and it has already been challenged in federal court.

Among the grounds for the challenges is the idea that student loan forgiveness violates the major questions doctrine. Though the Supreme Court recently declined to accept one request for an injunction pending appeal, a federal district court recently granted a nationwide injunction against any student loan forgiveness, citing its belief that on the merits, the plaintiffs’ major questions arguments would prevail. This storm won’t let up until it reaches the high court on the merits. More appeals are sure to follow.

There are also pending major questions cases involving other agencies, like the Department of Justice, the Federal Trade Commission, and the Nuclear Regulatory Commission. Covid-related agency actions implicating the doctrine also continue to be litigated, though the Supreme Court declined review of a decision stating that the TSA had authority to require masks. More litigation—and the ensuing appeals—are sure to come.

Is Chevron Dead?

Under the Supreme Court’s 1984 ruling in Chevron USA, Inc. v. NRDC, courts must defer to an agency’s reasonable interpretation of an ambiguous federal statute—a different analysis altogether than the major questions inquiry. So has the major questions doctrine washed out Chevron?

Not yet, though the Supreme Court recently rejected a petition for certiorari asking to overrule Chevron. Justice Neil Gorsuch’s dissent, on the other hand, stated that the “whole project deserves a tombstone no one can miss.”

It remains to be seen whether the Supreme Court will take such an extraordinary step, but the Court demonstrated just this year its willingness to overturn a major precedent.

Chevron isn’t going down without a fight, though: Citations to the decision still outstrip citations to major questions cases on the Supreme Court’s docket so far this year, and on federal court dockets overall as well.

While West Virginia didn’t overrule Chevron, the major questions doctrine is clearly the new favorite of a majority of Supreme Court justices—and lower courts are bound to follow their lead.

Litigants can and should argue for Chevron deference when appropriate. But as clouds gather on the horizon for next year, attorneys in cases involving federal agencies need to understand that the major questions doctrine is here to stay.

The Bloomberg Law 2023 series previews the themes and topics that our legal analysts will be watching closely in 2023. Our Litigation analyses examine developments inside and outside the courtroom that will shape the course of law in the year ahead.

Bloomberg Law subscribers can find related content on our Supreme Court Today Tracker, US Law Week’s Supreme Court Today newsletter, our Advanced Dockets Search, and our Practical Guidance on Using Bloomberg Law Dockets page.

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