ANALYSIS: Major Question—Can Congress Predict the Future?

Oral arguments in Biden v. Nebraska and Dept. of Education v. Brown are set for tomorrow, and the debate over whether the federal student loan forgiveness program is a “major question” is heating up. If the US Supreme Court defines the major questions doctrine as a clear-statement rule in either case when it issues opinions later this term, agencies could face steep burdens to defend their statutory authority in the future.

Burden on the Government? It Is Decidedly So

No matter the outcome, the major questions doctrine will play a role in the opinions for the two cases. The doctrine was addressed by the parties on the merits, in both of the cases, and was mentioned by several of the amici opposing the Biden administration’s proposed action—and even a few supporting it.

The major questions doctrine has gained popularity in certain circles in recent years as an alternative to previous methods of statutory interpretation in cases challenging agency action, such as the Chevron doctrine. “Chevron deference” puts the burden on the challenger, and simply asks the federal agency to have a reasonable interpretation of a statute. As of now, it’s still one of the analysis options when a court considers whether an agency’s action was permissible under the statute.

The major questions doctrine, as explained in West Virginia, instead places the burden on the government—once a major question is found—to prove that it had congressional authority to act.

A clear-statement rule would go even further than West Virginia‘s declaration. In addition to requiring an agency to show that Congress gave it clear authority to regulate, a clear-statement rule could (as it has in contexts other than the major questions doctrine) require a showing that Congress must have specifically anticipated the outcome or result of the agency’s action when it passed the statute. That’s an even more exacting standard for an agency to meet.

But in West Virginia, the majority opinion stopped short of adding the explicit label of “clear-statement rule” to the major questions doctrine. Will it take this opportunity to do so now?

Is a Clear-Statement Rule Coming? Reply Hazy, Try Again

The question of whether the major questions doctrine is a clear-statement rule is placed squarely before the high court in the respondents’ brief in Biden v. Nebraska. (In Dept. of Education v. Brown, the adoption of a “clear-statement rule” wasn’t raised on the merits, but it was mentioned in some amicus briefs.) But whether there’s enough momentum for a ruling on the question is not clear.

The federal district court in Brown didn’t explicitly adopt a clear-statement rule, and instead echoed the “clear congressional authorization” language from West Virginia. And the other lower court opinions in the two cases addressed injunction issues, not the fine details of the major questions doctrine.

The Supreme Court seems open to adopting a clear-statement rule, at least in hints from West Virginia. Justice Neil Gorsuch’s concurrence in that case argued that the major questions doctrine ought to be—and in fact is, in his view—a clear-statement rule, not an ambiguity rule. The majority opinion in West Virginia also used language that hinted at such a standard, referencing “clear congressional authorization” for agency actions. Still, the high court declined to use the specific phrase “clear-statement rule” in that case.

It would be a seemingly small step from writing “clear congressional authorization” to writing “clear-statement rule,” but the impacts could be enormous. It’s anyone’s game at this point.

Is Congress a Crystal Ball? Cannot Predict Now

Trying to determine whether Congress anticipated the effect or outcome of a given piece of legislation—which is what a clear-statement rule would require—is a particularly interesting approach to statutory interpretation, given some of the justices’ distaste for arguments based on legislative history. Reading such intent into plain text without looking at the drafters’ statements at the time (which is what would be required if relying on legislative history is a no-go), would be asking the text to do a lot of work. That kind of congressional foresight could be difficult to capture in statutory text alone, creating tension in the way statutes are interpreted.

Practically, it’s also impossible for anyone—let alone a functional Congress—to anticipate future concerns in this fast-paced world, where societal change can come from the touch of a screen, and a tiny virus can have drastic impacts in mere weeks.

Nimble Agencies? Outlook Not So Good

Focusing on policy outcomes or results only anticipated by Congress at a statute’s enactment could remove a lot of agencies’ ability to work on emerging or developing issues.

The practical effect would be that federal agencies could only solve problems that existed when the relevant statute was enacted, and that any new problems must wait for Congress to act (which generally would mean those issues would languish, and other solutions, such as actions from state governments as well as private actors, might have to fill the gaps).

A Changed Litigation Landscape? Without a Doubt

What could an even stricter burden on challenged federal agency actions mean for litigators?

• Alternate Theories of Liability. In the absence of federal regulation, litigators might see more reliance on state law or common law theories of liability to solve problems that Congress didn’t or couldn’t foresee and about which it therefore couldn’t make a “clear statement.”
• More Settlements. Litigators with corporate clients may be in a stronger negotiating position. Federal agencies might be more amenable to a settlement as an alternative to bad precedent. But armed with this knowledge, it may be less likely that a corporate client would want to take such a settlement, knowing the alternative might be invalidation of the disputed regulation on appeal.
• Policy Prevails. Policy has always been important, but arguments about the wisdom of both an agency’s action and its effects would be even more critical with the burden so heavily on the government. Litigators would, and do, need to be prepared to work with the information in the public sphere about the success or failure of certain policies, and weave those into their arguments in court.

If the major questions doctrine is defined as a clear-statement rule, agencies can expect tougher battles when a court finds them to be acting on a major question. Look for a major questions discussion at oral arguments tomorrow.

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