ANALYSIS: Biden v. Nebraska Leaves Major Questions Unanswered

The US Supreme Court’s June 30 decision placed the major questions doctrine front and center, by using the doctrine to strike down President Joe Biden’s student debt forgiveness program. The court found that the doctrine’s requirement for clear statutory authorization from Congress for agency actions of vast “economic and political significance” wasn’t met, ending this hotly-contested federal program.

The major questions doctrine continues to grow in popularity with this court and appears to be on track to supplant the Chevron doctrine as a means to evaluate agency actions.

The ruling in Biden v. Nebraska may have raised more questions than it answered, however, with respect to how lower courts are expected to apply the doctrine going forward.

When to Apply the Doctrine? Still Not Clear

The decision indicates that the Supreme Court, as it’s currently composed, is leaving the Chevron doctrine in the past.

Chevron U.S.A. Inc. v. NRDC has been the basis for court review of agency action for decades. It provides for much more deference to an agency’s reading of a statute than the major questions doctrine does, and is at odds with a major questions analysis, but the high court has yet to provide guidance on when one standard or the other should apply.

Chevron‘s agency-deference rule wasn’t mentioned in the court’s ruling on the student debt relief plan (or in its companion case that was decided on standing grounds). It wasn’t even mentioned in the dissents. And only amici argued it at the high court level in both the student loan cases. Does this mean that Chevron is history?

Perhaps. But this omission may indicate that the Supreme Court is saving a direct analysis of Chevron‘s continued application—if there is any—for Loper Bright Enterprises v. Raimondo. In Loper, which is on the court’s plate for next term, the petitioners are asking the court to overrule Chevron outright.

Whether the court overrules Chevron or not, the resulting decision will hopefully provide clearer guidance soon on what type of analysis should take its place, including how the major questions doctrine fits in.

Deference to Agency Expertise? Probably Not

Major questions doctrine proponents have, to retired Justice Stephen Breyer’s dismay, cited his 1986 article as one of the roots of the major questions doctrine. In the article, Breyer said that agencies ought to receive more deference from the courts for their actions if they have “special expertise” on the legal issue.

The Supreme Court used this idea of “special expertise” to nix agency actions in two per curiam rulings during its 2020 and 2021 terms. The court—citing the major questions doctrine, not Chevron—highlighted the lack of “special expertise” the CDC had on landlord-tenant issues and that OSHA had on a shot-or-test rule.

West Virginia v. EPA, which limited the EPA’s ability to regulate under the Clean Air Act by applying the major questions doctrine, left unclear the issue of deference to agency expertise. There was certainly no deferential Chevron standard applied to the EPA’s action, and yet the high court seemingly deferred to an EPA Administrator’s statement. This was likely a result of the complicated political back-and-forth in that case.

But in Nebraska, the Supreme Court didn’t even broach the issue of whether the Department of Education has expertise with respect to student loans. So it remains to be seen whether this analysis will fall by the wayside.

How to Apply the Doctrine? Still Not Clear

The major questions doctrine has received a lot of attention lately for its policy impacts, but the way courts will practically apply the doctrine remains an open question.

Justice Neil Gorsuch is convinced that the major questions doctrine is a clear-statement rule and ought to be applied as such, though his position has only been expressed in a concurrence.

In contexts outside the major questions doctrine, clear-statement rules require an agency to show that Congress anticipated not only the action the agency would take, but also the effect that action would have. It’s a very high standard, reserved for topics like statute retroactivity and sovereign immunity.

In West Virginia, Chief Justice John Roberts’ majority opinion declined to describe the major questions doctrine as a clear-statement rule. Instead, he used the phrase “clear congressional authorization.”

And Justice Amy Coney Barrett’s concurrence in Nebraska indicates that the court isn’t prepared to interpret the major questions doctrine as a clear-statement rule.

Barrett’s concurring opinion described the major questions doctrine as being a “substantive canon” but not a “strong-form substantive canon.” She reasoned that strong-form canons diverge from the most “natural” reading of the text of a statute for one that’s merely “bearable” in order to protect a specific judicial value.

Clear-statement rules, on the other hand, require Congress to “speak unequivocally” to obtain certain outcomes. According to her concurrence, a clear-statement interpretation “means that the better interpretation of a statute will not necessarily prevail,” placing it potentially at odds with textualism.

Barrett didn’t believe that the type of “strong-form canon” analysis she described had happened in any of the high court’s major questions cases. Instead, she found that the Supreme Court had taken the most reasonable reading of the statute at issue. Because of this fact, she clarified her view that the major questions doctrine is not a clear-statement rule.

It’s still unclear whether the high court’s remaining proponents of the major questions doctrine—Justices Brett Kavanaugh, Samuel Alito, and Clarence Thomas—agree with either Barrett or Gorsuch (though a DC Circuit dissent from Kavanaugh hints he could side with Gorsuch). But with the current court’s composition, Barrett’s concurrence shows the justices likely don’t have the votes to establish it as a clear-statement rule. And they may not want to, given her description of the tension between clear-statement rules and textualism.

Instead, the Supreme Court’s decisions to date only agree that a major questions analysis incorporates the concept of “clear Congressional authorization,” which hasn’t been quantified by the court. Justice Elena Kagan described the concept in her dissent in West Virginia as “someplace over and above the normal statutory basis we require.” It remains for lower courts to undertake this difficult navigation.

Use of Legislative History? Maybe

Can a court use legislative history to decide whether a question is a major one or whether an agency overstepped its authority? The majority opinion in Nebraska cited repeatedly bills Congress considered but didn’t pass—and at one point even quoted former Speaker of the House Nancy Pelosi—as support for the extent of the executive’s authority.

Yet attempts to cite legislative history as a basis for statutory interpretation are disfavored by the high court. Nebraska‘s reference to Congressional inaction may be an approach that parties can use to help convince both the Supreme Court and lower courts that their views on statutory interpretation using legislative history—at least in the context of a major questions analysis—are the right views.

How to Proceed Now

Federal district courts and courts of appeals will undoubtedly struggle with the student-loan relief decision because it makes a major questions analysis cloudier and more difficult to apply.

Until the Supreme Court provides more clarity on the major questions doctrine and its application—or Congress beats them to it—litigators will have to rely on the law of each individual federal circuit and the views of each judge within a given circuit for this complex analysis. No matter which side of the “V” the parties find themselves on, a firm understanding of applicable judges’ philosophies will be essential.

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