The Major Questions Doctrine Applied: Evidence from the Lower Courts

The Supreme Court first named and relied on the major questions doctrine in its landmark decision in West Virginia v. EPA, 142 S. Ct. 2587 (2022). One year later, on the last day of the most recent Term, the Supreme Court handed down another decision applying the doctrine in Biden v. Nebraska, 143 S. Ct. 2355 (2023).

Before West Virginia, commentators rightly criticized the doctrine’s ambiguity and inconsistency. Although one could read West Virginia as an attempt to clarify the doctrine and provide a framework to guide lower courts, the opinion is admittedly far from a model of clarity, and it is unsurprising that lower courts have applied the doctrine inconsistently.

In a forthcoming article in the Administrative Law Review, I survey how lower federal courts have interpreted West Virginia and applied the major questions doctrine. My survey reveals that there are many major questions doctrines in the lower courts. Judges have taken vastly different approaches to interpreting West Virginia and applying the doctrine, both across and within circuits. These cases suggest that many judges view the doctrine as little more than a grab bag of factors at their disposal, and their applications of the doctrine appear to largely track partisan lines.

As of this writing, 88 lower federal court cases have cited West Virginia, 23 of which discuss the major questions doctrine. I discuss each of these cases in detail in my forthcoming article, but I offer some observations here concerning judges’ different approaches to defining and applying the doctrine within and across circuits.

D.C. Circuit

The D.C. Circuit has decided four cases discussing the major questions doctrine, and judges in the District for the District of Columbia have decided two cases discussing the doctrine.

In two opinions, judges defined the doctrine as a two-pronged framework involving “the ‘history and breadth of the authority that [the agency] has asserted,’ and the ‘economic and political significance’ of that assertion.” This was the framework articulated by Judge Judith Rogers in Loper Bright Enterprises, Inc. v. Raimondo, 45 F.4th 359, 364 (D.C. Cir. 2022) (quoting West Virginia, 142 S. Ct. at 2595), and Judge Rudolph Contreras in United States v. Rhine, No. CR 21-0687 (RC), 2023 WL 372044, at *9 n.5 (D.D.C. Jan. 24, 2023) (quoting West Virginia, 142 S. Ct. at 2595).

In two other opinions, judges defined the doctrine as a three-pronged framework involving the two prongs described above in addition to a third prong involving whether the agency relied on a vague or modest statutory provision. Judge Karen LeCraft Henderson advanced this framework in her dissent in Washington Alliance of Technology Workers v. DHS, 50 F.4th 164, 206 (D.C. Cir. 2022) (quoting West Virginia, 142 S. Ct. at 2609), in which she stated that “[e]xtraordinary grants of regulatory authority are rarely accomplished through ‘modest words,’ ‘vague terms,’ or ‘subtle device[s].’” And Judge Randolph Moss advanced this framework in Ready for Ron v. FEC, No. CV 22-3282 (RDM), 2023 WL 3539633, at *10 (D.D.C. May 17, 2023) (quoting West Virginia, 142 S. Ct. at 2608), in which he discussed the relevance of “ambiguous” and “cryptic” statutory language.

Finally, in two opinions, Judge Justin Walker seems to have offered two formulations of the doctrine, both of which differ from frameworks advanced by the other judges in the D.C. Circuit. Writing in dissent in Guedes v. ATF, 66 F.4th 1018, 1029 (D.C. Cir. 2023), Judge Walker cited West Virginia and other major questions doctrine precedents to argue that the rule at issue was an example in which “1. Congress considers a highly controversial solution to a modern problem that attracts great public attention. 2. Despite that attention, Congress does not pass legislation addressing it. 3. The executive then finds within an old statute the power to address the problem that Congress did not.” Insofar as this reflects Judge Walker’s formulation of the major questions doctrine, he appears to rely on factors that differ from other D.C. Circuit judges—namely, congressional and public attention regarding a controversial issue, rejected legislative proposals, and the age of the statute (although it is possible to read his first two factors as metrics of political significance). In Heating, Air Conditioning & Refrigeration v. EPA, 71 F.4th 59, 67 (D.C. Cir. 2023), however, Judge Walker defined the doctrine simply as applying to “decisions of vast economic and political significance,” and concluded that the rule at issue did not trigger the doctrine because it was not “important” or “expensive” enough.

The variation in how judges applied the doctrine is not just explained by their differing frameworks but also by the fact that judges seemed at times to deviate from their articulated frameworks. For example, Judge Henderson did not delve into the relevant regulatory history, despite the majority’s extensive treatment of that subject in the case. Judge Rogers similarly did not delve into regulatory history nor political significance.

Fifth Circuit

The Fifth Circuit has decided two cases discussing the major questions doctrine, and judges in district courts in the Fifth Circuit have decided five cases discussing the doctrine.

In at least four of the seven cases, judges defined the doctrine as applying to agency decisions of economic and political significance. These included both Fifth Circuit opinions—from Judge Priscilla Richman in Texas v. United States, 50 F.4th 498, 526 (5th Cir. 2022) and Judge Kurt Engelhardt in Louisiana v. Biden, 55 F.4th 1017, 1029 (5th Cir. 2022)—as well as two district court opinions—from Judge Terry Doughty in Louisiana v. Becerra, 629 F. Supp. 3d 477, 492 (W.D. La. 2022) and Judge Mark Pittman in Brown v. Department of Education., No. 4:22-CV-0908-P, 2022 WL 16858525, at *11 (N.D. Tex. Nov. 10, 2022). In a third district court opinion, Judge Brantley Starr initially defined the doctrine as the same two-pronged framework advanced in the D.C. Circuit by Judges Rogers and Contreras but then defined the doctrine as turning only on economic and political significance, for which he cited Judge Mark Pittman’s opinion. Kovac v. Wray, No. 3:18-CV-0110-X, 2023 WL 2430147, at *4 (N.D. Tex. Mar. 9, 2023). And in a fourth district court opinion, Judge Mary Ann Vial Lemmon in United States v. Empire Bulkers Ltd., No. CR 21-126, 2022 WL 3646069, at *1 (E.D. La. Aug. 24, 2022) defined the doctrine as applying to “issues of major national significance.”

Despite each of these judges defining the doctrine as applying to agency decisions of economic and political significance, their applications of the doctrine differed greatly. For example, Judge Richman’s analysis relied solely on metrics of economic and political significance. Her analysis was unique in finding that the agency program at issue triggered the doctrine not because of its costs but because of its benefits. Meanwhile, despite articulating the same framework, Judge Engelhardt focused on historical practice and whether the action constituted a transformative expansion in power.

In contrast to the other judges in the Fifth Circuit, Judge Robert Pitman in Restaurant Law Center v. Department of Labor, No. 1:21-CV-1106-RP, 2023 WL 4375518, at *12 (W.D. Tex. July 6, 2023) defined the doctrine as the same three-pronged framework advanced in the D.C. Circuit by Judges Henderson and Moss.

Three of the five district court opinions—all of which were from Republican appointees—seemingly relied on Justice Gorsuch’s concurrence in West Virginia, which differs from the majority opinion in important ways. Under the West Virginia majority’s framework, the first part of the test, which determines whether an agency action triggers the doctrine, focuses on whether the agency action was “unheralded” and represented a “transformative” change in the agency’s authority. In contrast, Justice Gorsuch shifts this analysis to the second part of the test, which determines whether there is clear congressional authorization.

Under Justice Gorsuch’s framework, an agency action triggers the doctrine when the agency (1) “claims the power to resolve a matter of great ‘political significance,’” (2) “seeks to regulate ‘a significant portion of the American economy,’” or (3) “seeks to ‘intrud[e] into an area that is the particular domain of state law.’” Once triggered, determining whether there is clear congressional authorization depends on: (1) “the legislative provisions on which the agency seeks to rely ‘with a view to their place in the overall statutory scheme,’” (2) “the age and focus of the statute the agency invokes in relation to the problem the agency seeks to address,” (3) “the agency’s past interpretations of the relevant statute,” and (4) “when there is a mismatch between an agency’s challenged action and its assigned mission and expertise.” West Virginia, 142 S. Ct. at 2620-23.

In seemingly relying on Justice Gorsuch’s framework, Judge Doughty, Judge Starr, and Judge Mark Pittman all shifted some of the analysis from the first part of the test to the second part. Their analyses thus differed markedly from other courts that applied the West Virginia majority opinion. And there was variation even among these judges. For example, Judge Doughty quoted Justice Gorsuch’s four factors for determining whether there is clear congressional authorization. Louisiana v. Becerra, 629 F. Supp. 3d at 492. Meanwhile, Judge Starr listed six factors to determine whether there is clear congressional authorization: whether the agency “(1) relies on a ‘cryptically delegated’ power, (2) ‘lack[s] the requisite expertise,’ (3) ‘relies on an unheralded power,’ (4) receives a ‘transformative [power] expansion,’ (5) ‘fundamental[ly] revis[es]’ the law, and (6) regulates subject matter ‘with a unique political history.’” Kovac, No. 3:18-CV-0110-X, at *10. Judge Mark Pittman took a different approach to determining clear congressional authorization: he used traditional tools of statutory construction and also took inspiration from Justice Gorsuch’s concurrence in finding relevant “‘the agency’s past interpretations of the relevant statute ….’” Brown, No. 4:22-CV-0908-P, at *13.

Ninth Circuit

The Ninth Circuit has decided one case discussing the major questions doctrine, and judges in the district courts in the Ninth Circuit have decided three cases discussing the doctrine. In the one Ninth Circuit opinion, Mayes v. Biden, 67 F.4th 921, 934 (9th Cir. 2023), Judge Mark Bennett advanced a framework of the doctrine focused on whether the agency action constituted a “transformative expansion of regulatory authority.”

Two district court opinions—from Judge William J. Alsup in Sweet v. Cardona, No. C 19-03674 WHA, 2022 WL 16966513, at *5 (N.D. Cal. Nov. 16, 2022) and Judge Consuelo Marshall in Kaweah Delta Health Care District v. Becerra, No. CV 20-6564-CBM-SP(X), 2022 WL 18278175, at *8 (C.D. Cal. Dec. 22, 2022)—defined the doctrine with the following excerpt from West Virginia: “[e]xtraordinary grants of regulatory authority are rarely accomplished through modest words, vague terms, or subtle devices. Nor does Congress typically use oblique or elliptical language to empower an agency to make a radical or fundamental change to a statutory scheme…. We presume that Congress intends to make major policy decisions itself, not leave those decisions to agencies.” 142 S. Ct. at 2609.

The final district court opinion came from Judge John Tuchi in Arizona v. Walsh, No. CV-22-00213-PHX-JJT, 2023 WL 120966, at *7 (D. Ariz. Jan. 6, 2023). He defined the doctrine as applying in cases involving “novel and ‘breathtaking’ authority” in which an “agency has relied on an ancillary statutory provision to exercise novel regulatory powers.”

In contrast to most of the Fifth Circuit frameworks, none of these four frameworks focused on economic and political significance. Judges Bennett and Alsup even went as far as to explicitly reject formulations of the doctrine that placed dispositive weight on economic and political significance.

Other Circuits

A couple of other cases are worth noting here for their different approaches. In a district court in the Eighth Circuit, Judge Daniel Hovland defined the doctrine as prohibiting agencies from “exercis[ing] regulatory power ‘over a significant portion of the American economy’ or ‘mak[ing] a radical or fundamental change to a statutory scheme.’” West Virginia v. EPA No. 3:23-CV-032, 2023 WL 2914389, at *15 (D.N.D. Apr. 12, 2023) (emphasis added). Judge Hovland’s formulation is unique in finding that regulating a “significant portion of the American economy” is an independent and sufficient trigger for the major questions doctrine and seems to be relying on Justice Gorsuch’s concurrence for this proposition.

In a district court in the Fourth Circuit, Judge Rossie Alston defined the doctrine as applying to “‘novel’ interpretations of ‘ancillary statutes.’” He then listed three factors that trigger the doctrine, also seemingly relying on Justice Gorsuch’s concurrence: “(1) whether the challenged action is outside the agency’s traditional field of expertise, (2) whether it intrudes on matters typically governed by state law, and (3) whether Congress has already expressly considered and rejected the measure.” Miller v. Garland, No. 123CV195RDAJFA, 2023 WL 3692841, at *9 (E.D. Va. May 26, 2023).

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Although one could read West Virginia as an attempt to provide guidance to lower courts, West Virginia was sufficiently unclear that lower courts have continued to be vastly inconsistent in defining and applying the major questions doctrine. The Court had the opportunity in Biden v. Nebraska to articulate a workable doctrine that more clearly constrains discretionary applications of the doctrine. Whether the Court was successful in doing so will become evident as lower courts begin to grapple with the decision.