Major Questions Doctrine Hands Power to Judges After Chevron

The major questions doctrine, which has been gaining momentum as the Chevron doctrine withers, could empower judges to invalidate almost any significant agency action that’s inconsistent with the governing philosophy of the president who appointed the judge.

The doctrine, in effect, directs courts to reject agencies’ interpretation of statutes on major questions—those of national political or economic significance—unless there’s a clear authorization from Congress to accept them.

The Supreme Court announced and applied this important new doctrine, known as MQD, in its 2021 opinion in Alabama Association of Realtors v. Department of Health & Human Services. The high court has since applied the MQD in three other cases, and lower courts have applied it in 38 cases.

Petitioners who challenge agency actions now routinely argue that the MQD applies to the action they are challenging. As the Supreme Court weakens and possibly overturns the Chevron doctrine, the rise of the MQD could make it impossible for any agency to take any significant regulatory action.

Alabama Case

In Alabama Association, the court upheld an injunction that prohibited the Centers for Disease Control and Prevention from enforcing a national moratorium on evictions from rental housing.

The agency had imposed the moratorium as a public health measure because the pandemic was likely to increase the number of evictions, and widespread evictions had potential to make the national pandemic worse by increasing the rate of spread of Covid-19.

The justices recognized that the statute the agency relied on as the basis for its action conferred power on the agency with statutory language so broad that it could be interpreted to authorize the agency to take the action.

Rather than attempt to interpret and apply that statute, however, they concluded that no broadly worded statute could support the challenged agency action. They declared Congress must “speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”

The court then applied the MQD as the basis to hold invalid an OSHA rule that required employers either to require their employees to be tested for Covid or to be vaccinated for Covid; the Clean Power Plan in which EPA required electricity-generating plants to switch to low-carbon or carbon-free sources of fuel to mitigate climate change; and the Department of Education’s attempt to forgive thousands of student loans.

The decision to apply the MQD almost always results in a decision that the agency action is invalid because most statutes that agencies apply are broadly worded.

Lower Courts

A 2023 New York University School of Law study of lower court opinions that invalidated executive branch actions between June 2022 and June 2023 found 38 cases had relied on the MQD. The study concluded “many judges view the doctrine as a little more than a grab bag of factors, which they seem to be choosing from at their discretion. Lower court judges do not appear to be constrained in how they apply the doctrine.”

All the courts used the economic significance of an action as at least one factor that a court should consider in deciding whether to apply the MQD. They differed, however, over the measures of economic significance that a court should use in deciding whether an action is economically significant.

Some concluded that the action had to impose billions of dollars in costs, while others thought it was enough if it imposed millions of dollars in costs. One court concluded that the MQD applied even when the costs of an action are modest—if the economic benefits are large.

The economic threshold for applying the MQD is important. To illustrate this, consider that the executive branch has long characterized an action as economically significant for purposes of deciding whether an action should be subjected to a cost-benefit-analysis if the action is expected to impose costs of $100 million.

The Office of Information and Regulatory Affairs in the Office of Management and Budget identifies between 100 and 200 agency actions per year that meet that threshold for determining economic significance. In the opinion of many judges, all those actions would be invalid through application of the MQD.

Many judges consider political significance as another factor that can support applying the MQD, but they differ in how to determine whether an action has political significance. Some judges refer to a wide variety of factors they believe to be important, but there’s no consistency across courts about the relevance and importance of any one factor over others.

The New York University study concluded that the MQD is being used primarily as a means through which judges can invalidate any action they disagree with for political reasons: “In a majority of cases concerning Biden Administration agency actions and executive orders, judges applied the doctrine to reach outcomes that aligned with the political party of the appointing president.”

It identified only three cases in which the outcome of the case didn’t correspond with the political philosophy of the president who appointed the judge who decided the case.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Richard J. Pierce Jr. is professor of law at George Washington University Law School, with focus on administrative law and regulatory practice.

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