ANALYSIS: More Major Questions Doctrine Decisions Are Coming

The major questions doctrine is popping up more frequently in court decisions, but more often than not has been unsuccessful in consistently and successfully limiting federal agencies’ power to act. Win or lose, though, decisions considering the doctrine will continue to increase in the next year, as will some related case patterns that are beginning to emerge.

2024: More Decisions, More Wins

In 2024, look for the following:

• Court decisions addressing the major questions doctrine will continue to increase overall. This will happen regardless of the outcome in Loper Bright Enterprises v. Raimondo, in which the petitioner asks the US Supreme Court to overrule Chevron USA, Inc. v. NRDC. The court will likely hear arguments this term. Chevron is major questions’ main doctrinal competitor, but major questions decisions will continue to increase even if Chevron is still in the game for all of 2024.
• The success rate of the major questions doctrine as a limit on agencies will continue to surge in the Fifth Circuit.
• When the political winds shift, which agencies are called to defend against major questions arguments will change as well. But expect the EPA and the president to be consistent targets.

Major Questions, Major Impact

Unsurprisingly, mentions of the major questions doctrine have skyrocketed in decisions in the lower courts since it became favored by the Supreme Court.

But do judges find the doctrine worth considering when it comes time to write their final opinions? The answer is “yes": More judges are in fact using the major questions doctrine in their final written analysis each year.

A sharp increase in decisions overall followed the US Supreme Court’s decision in Biden v. Nebraska, the second Supreme Court case after West Virginia v. EPA to embrace the major questions doctrine. That decision solidified the doctrine’s legitimacy, and lower courts were ready to follow the high court’s lead in applying it, though it hasn’t always been a winner in the last quarter of this year so far.

The smaller bump after West Virginia may be attributed to those judges who were waiting until the high court’s decision in that case to write their opinions.

The earlier spike in Q3-Q4 2021 represents the resolution of challenges to a number of federal COVID-era regulations, an important major questions battleground.

Favored in the Fifth

The major questions doctrine is applied most often to limit agency action in courts in the Fifth Circuit. Agencies resisting the doctrine’s application next year will fare better in other circuits.

Courts in the Fifth Circuit will continue to attract major questions challenges in 2024.

More Success on Appeal

Appellate courts favor the major questions doctrine more than trial courts. Fourteen of 24 appellate cases handed the win to the major questions doctrine, while it lost in the trial courts two to one.

While not all cases are appealed, these numbers indicate that the “final word” on major questions could be slowly shifting toward “yes.” They also likely reflect the varied arguments parties can raise at the trial court level, while arguments usually get more streamlined on appeal.

Who’s Vulnerable?

The most common target of the major questions doctrine so far has been the US Department of Health and Human Services, which includes the CDC. This is mostly due to the large number of challenges to the CDC’s Covid-related agency actions. As those cases slowly get resolved, new defendants are likely to emerge in 2024.

One interesting target isn’t an agency at all: The doctrine is being used to challenge presidential actions, most commonly executive orders. Some courts have held that the doctrine doesn’t apply, because the executive branch isn’t an agency. Other courts have concluded that the president and agencies should both be held to the same interpretive standards when it comes to statutes.

The Supreme Court of Arizona took a creative angle with the major questions doctrine shortly after the West Virginia decision in 2022. In its ruling on the scope of a state statute for regulatory purposes, the state high court found that the law hadn’t incorporated a related federal standard.

So Who’s Winning?

Despite its success on appeal—in the Supreme Court in particular—in the “doctrine succeeded versus doctrine failed” battle, it’s not yet an overall winner.

In decisions applying the major questions doctrine (including two state cases), the score is 36–27 for rejecting the doctrine as an argument. Even controlling for the fact that there are two “repeats” (multiple decisions from the same docket), it’s still not a winner (35–26).

Is this because recent decisions embracing the major questions doctrine are still catching up with the pre-West Virginia-era cases, which largely rejected it? Most likely, even though the dissents in some of those cases laid the groundwork for the doctrine’s current popularity.

Criticism of the major questions doctrine, as well as the desire to insulate decisions from being overturned on appeal, will lead courts favoring the major questions doctrine to embrace other grounds for limiting agency power in tandem next year. These will include the still-active Administrative Procedure Act and the long-quiet non-delegation doctrine.

Access additional analyses from our Bloomberg Law 2024 series here, covering trends in Litigation, Transactions & Contracts, Artificial Intelligence, Regulatory & Compliance, and the Practice of Law.

Bloomberg Law subscribers can find related content on our Litigation Intelligence Center, our Supreme Court Today^SM Tracker, and US Law Week’s Supreme Court Today^SM newsletter.

If you’re reading this on the Bloomberg Terminal, please run BLAW OUT <GO> in order to access the hyperlinked content, or click here to view the web version of this article.