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November/December 2023

The major questions doctrine’s shifting landscape: An exercise in identifying the factors that really matter

Jared Bos Fish


  • Addresses the major questions doctrine (MQD) as a powerful judicial tool that can dramatically limit federal executive agency authority.
  • Discusses how the MQD comprises several loosely defined factors that are not consistently applied.
  • Provides three examples of which types of agency actions might avoid MQD invalidation.
The major questions doctrine’s shifting landscape: An exercise in identifying the factors that really matter
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The major questions doctrine (MQD) is a powerful judicial tool that can dramatically limit federal executive agency authority, yet its parameters remain uncertain. Unlike most multifactor balancing tests, the Supreme Court has inconsistently invoked the MQD’s assorted criteria, lending it a chameleon‑like quality. As the Fourth Circuit recently observed in North Carolina Coastal Fisheries Reform Grp. v. Capt. Gaston LLC, the major questions “indicators are non‑exhaustive and need not be present in every major‑questions case,” rendering “[t]he doctrine’s boundaries * * * hazy.” Even so, the Supreme Court’s application of the MQD to date suggests—if mainly by negative implication—which types of agency actions might avoid MQD scrutiny. A case involving an agency’s consistent application of a statute, an agency’s sourcing of authority in a core statutory provision, and previous judicial decisions confirming an agency’s asserted power under a specific statutory provision may blunt attempts to apply the MQD.

The MQD analysis springs from an elusive concept: Common sense

Traditionally, the Supreme Court has focused on Congress’ enacted statutory language to determine the scope of an agency’s congressionally delegated power. As the Court recently elucidated in West Virginia v. EPA, however, the modern MQD asks an independent and oftentimes prefatory question: Irrespective of a “colorable textual basis” for an agency action, does “‘common sense’” indicate a “‘reason to hesitate before concluding that Congress meant to confer [the asserted agency] authority”? “Common sense,” the Court went on to explain, is a function of the “extravagant” nature of the agency action, measured primarily by its “‘economic and political significance.’” If the action triggers the MQD tripwire, then only “clear congressional authorization” will save it.

The MQD comprises several loosely defined factors that are not consistently applied

To the extent that the MQD purports to apply objective criteria, those criteria are ill‑defined. To be sure, while all the Court’s MQD cases have required a showing that an agency action has great “economic and political significance,” what triggers the “significance” threshold is not anchored to clear metrics—e.g., dollars spent on compliance, political discord over an issue, or the number of people affected. In Biden v. Nebraska, for example, where the Court voided the secretary of education’s student loan cancellation program, the program cost the government about $430 billion. But in National Federation of Independent Business v. Department of Labor, the Court did not even credit the cost of the COVID‑19 vaccine‑or‑test mandate. Instead, it summarily declared that “[t]here can be little doubt that [the agency’s] mandate qualifies as an exercise of [vast economic and political significance].”

Other extra‑textual factors also appear pertinent to the MQD analysis, if to a lesser degree. They include the novelty of the agency’s statutory interpretation, the agency’s expertise in the relevant area, the centrality of the governing provision to Congress’ statutory scheme, and the political valence of the disputed issue. But these factors’ relevance is uncertain given their inconsistent application. In Alabama Association of Realtors v. Department of Health and Human Services, the Court briefly referenced the novelty of the Centers for Disease Control and Prevention’s COVID‑19‑related eviction moratorium, but did not assess its political salience. Nor did the Court consider the governing statutory provision’s prominence in the statutory scheme—yet that was an important consideration in rejecting the Environmental Protection Agency’s (EPA) carbon regulation in West Virginia.

An agency’s expertise likewise may not be decisive. In West Virginia, the Court emphasized EPA’s relative lack of expertise in regulating the nation’s energy mix (the modus operandi of EPA’s regulation), yet it did not address this factor in Nebraska, where the education secretary plainly had expertise in the field of federal student loans. Nor did Nebraska consider the centrality of the pertinent statutory provision, which, unlike the Court’s description of the provision in West Virginia, was not some “backwater” of the statutory scheme: the law vested the Secretary with power to “‘waive or modify any statutory or regulatory provision[.]’” Whether intentionally or not, the Court has seemingly invoked only those MQD factors that favor applying the MQD in a given case.

The Court’s selective application of only some MQD factors in a given case means the MQD inquiry is unlike the typical judicial balancing test. Where a court is tasked with weighing competing factors—e.g., to decide a motion for a preliminary injunction or a procedural due process challenge—it generally applies all those factors across all cases. Such uniformity facilitates objective judicial inquiry irrespective of a judge’s subjective conceptions of equity. For example, factors cutting against the others—e.g., those that might favor granting a preliminary injunction even where others point toward denial—are weighed in the balance. By contrast, the MQD’s application to date suggests that its assorted criteria can be chosen à la carte rather than as part of a set menu.

Some big, important agency actions might avoid the MQD under the Supreme Court’s current precedents

The MQD currently appears to be an unpredictable doctrine. Even so, the Supreme Court’s decisions thus far suggest, if only by negative implication, which types of agency actions might avoid MQD invalidation. First, showing that an agency has advanced a statutory interpretation consistent with its historical practice could be persuasive. Indeed, roughly half of West Virginia’s MQD analysis focused on EPA’s prior, more limited interpretation of its powers under the Clean Air Act than its averred authority in that case.

Second, a showing that Congress granted the agency broad powers covering the disputed action, and in a provision core to the statutory scheme, is likely relevant. In West Virginia, the Court emphasized the “ancillary” nature of the relied‑upon language in the Clean Air Act. And in Nebraska, while the pertinent provision was central to the statute, the Court held that it did not, in fact, delegate broad powers to the education secretary. An agency action involving a statute unburdened by these limitations might avoid the MQD. Such was the case in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, where the Court upheld agency action based on a capacious grant of statutory authority, and refused to impose “a limitation not found in the statute.”

Third, a Court’s prior endorsement of a particular agency’s broad powers should undercut the case for applying the MQD. For example, in New York v. Federal Energy Regulatory Commission, the Court held that FERC’s “clear” and “unambiguous[]” power to regulate wholesale electric sales and interstate transmission under the 1935 Federal Power Act included discretion to issue novel regulations of significant impact. Thus, where the Court has previously endorsed broad agency powers in a particular subject area, it seems unlikely it would find a “reason to hesitate” before upholding similar exercises of authority going forward.

All that said, these are musings more than conclusions. Anticipating the outcomes in cases involving challenges to agency regulations will remain a perilous endeavor until the courts clarify the MQD’s scope and contours.