ANALYSIS: Major Questions’ Losing Record Since West Va. v. EPA

The US Supreme Court enshrined the major questions doctrine in West Virginia v. EPA in 2022, and since then, it has become a mainstay of many challenges to agency actions. In these cases, plaintiffs that disagree with the agency action will make the argument that the agency has, without clear authorization from Congress, regulated in the area of a “major question"—one of vast economic or political significance.

From criminal cases to workplace safety cases, if a regulation is being challenged, there’s a good chance a major questions argument will make an appearance.

But two years after West Virginia, the argument’s still not a consistent winner with judges in most circuits.

Most Courts Say No, but Forum Matters

A breakdown of major questions cases since the West Virginia decision shows that almost two-thirds of the cases rejected the argument based on the doctrine and that courts in half a dozen federal circuits have not once ruled in favor of the doctrine.

Major Questions Arguments Lose

Since 2022, in cases across all courts where the major questions doctrine was squarely raised and considered by the court, the argument failed to persuade the court 64% of the time.

Breakdown by Forum

Several circuits, including those that are traditionally home to a busy roster of administrative law questions, haven’t once ruled in favor of plaintiffs asserting major questions arguments since West Virginia. In the First, Second, Third, Seventh, Ninth, and DC circuits, courts have rejected the doctrine—either by ruling for the agency or finding that the action was clearly authorized by Congress—100% of the time since the 2022 ruling.

During the same time period, the Fifth (which agreed 59% of the time that a case presented a major question), Eighth (66%), and Tenth (75%) circuits, in contrast, have agreed more often than not that the challenged agency acted on a “major question” without clear congressional authorization. The Eleventh and Federal circuits agreed with major questions challenges 50% of the time.

One interesting finding that emerges from the data is that the number of decisions on agency challenges in the Fifth Circuit involving major questions arguments (29) far surpasses any other circuit, setting it up to join the D.C. and Ninth circuits as an administrative law hub.

Strong Showing in the Fifth

A clear majority of the cases where the major questions doctrine is substantively addressed disfavor the major questions doctrine. And that number jumps to 75% once the Fifth Circuit is removed from the analysis.

A whopping 34% of overall major questions decisions—29 of 86—come from courts in the Fifth Circuit. That’s one circuit making just over a third of the caselaw on this issue. Every other circuit has 10 or fewer decisions post-West Virginia so far. Clearly, location matters.

Not Everything Is Major

When courts reject major questions arguments, the “major” part of the equation carries more weight than expected. Of the 55 cases where courts have rejected major questions arguments since West Virginia, 25 of them found that the question presented wasn’t “major” at all. That’s almost 30% of the 86 total cases presenting major questions.

Since having a question that’s major is a prerequisite for a regulation to be subject to a higher statutory interpretive standard, it’s an important point. Parties who don’t argue it successfully do so at their peril.

And if a court finds that the question is a major one, it still has to find that the agency’s action wasn’t clearly authorized by the statutory language. If challengers lose on either or both of those points, it’s game over.

This is a straightforward argument to raise, but a hard one to win. At least in most courts.

Which Agencies Are the Primary Targets?

The departments and agencies that have seen the most major questions challenges to their actions since West Virginia are the Department of Education, the Department of Labor, the Department of Health & Human Services, and the Securities & Exchange Commission. Given some of the recent hot-button issues these agencies have been involved in, the list is—for the most part—unsurprising.

One interesting front-runner isn’t an agency, but the president himself. Executive orders have been the subject of a large number of major questions challenges—yet it’s not clear whether West Virginia’s analytical framework even really fits this type of challenge.

Courts are split on the issue of whether executive orders can be challenged via major questions, making the issue a likely contender for future Supreme Court review.

What Else Is Next for Major Questions?

There are several hot agency issues that will inevitably make their way to the high court—if not this term, then soon. And each probably involves an inescapably “major” question. The rules set for challenge include:

• the SEC’s climate disclosure rule;
• the Department of Education’s rule on what constitutes gender discrimination under Title IX;
• the Federal Trade Commission’s noncompete rule; and
• the Environmental Protection Agency’s rule on PFAS chemicals.

Major questions arguments have been and continue to be raised against each one of these agency actions. But as the case data show, parties shouldn’t expect the argument to be a slam-dunk win.

Other Supreme Court cases covered in the report are: Malwarebytes v. Enigma Software (2020); AMG Capital Management v. FTC (2021); and Coinbase v. Bielski (2023).

The full report is available for download here for nonsubscribers. Subscribers can directly access the report from our Bloomberg Law Reports page.

Bloomberg Law subscribers can find related content on our In Focus: Chevron, Loper & Agency Deference page, including our Practical Guidance on the major questions doctrine, and in our recorded webinar, Litigation After Loper: Effects on Agency Practice, which took place on August 15.

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