Since its formal announcement as a constitutional “doctrine” in West Virginia v. EPA, administrative and environmental law practitioners have speculated that the major questions doctrine (MQD) would mark a major shift in how courts interpret statutes delegating authority to administrative agencies and that the MQD would become an important weapon to wield against agencies that overstep their bounds. These questions are far from settled, and it is difficult to discern any clear patterns from lower court opinions to date that have either applied the doctrine or declined to apply it.

Recent cases declining to apply the MQD

In many cases, the lower courts have rejected attempts to invoke the MQD on the grounds that the doctrine is limited, as the Supreme Court has described it, to a small class of “extraordinary cases” in which the “history and breadth” and “economic and political significance” of the action at issue gives the courts “reason to hesitate before concluding that Congress meant to confer such authority” to act on the agency. See West Virginia. This is true even in cases touching hot-button political issues like crime and abortion that, at first glance, seem to implicate questions of “political significance.” For example, in Bryant v. Stein, decided by the Middle District of North Carolina on April 30, 2024, the court found that a North Carolina law requiring a physician visit before the abortion drug mifepristone can be prescribed is preempted by the Food and Drug Administration’s (FDA) determination that mifepristone can safely be distributed by mail. Among its defenses, the state asserted that, relying on the MQD, FDA overstepped its authority under the Federal Food, Drug, and Cosmetic Act by setting “abortion policy.” The court rejected this argument, finding that the MQD does not apply because “[t]here is no ambiguous regulatory provision at issue,” and the FDA did not “offer any novel interpretation” of a federal statute that would “broaden the agency's authority.”

Similarly, in United States v. White, a Seventh Circuit case also decided in April 2024, involving the U.S. Sentencing Commission’s guidelines for repeat offenders, the court rejected an MQD challenge to the Sentencing Commission’s inclusion of inchoate offenses in the sentencing guidelines. The court of appeals found that “White’s case plainly lacks the hallmarks of the truly extraordinary cases that have triggered” the MQD because the Sentencing Commission neither claimed “to discover in a long-extant statute an unheralded power” to regulate in an unprecedented way nor did it “use vague language in the governing statute” to adopt a regulatory program Congress “conspicuously and repeatedly declined to enact itself.” And in Kovacs v. Wray, a U.S. District Court in March rejected an MQD challenge to the No Fly List maintained by the Federal Bureau of Investigation and the Transportation Security Administration on the grounds that the challenged action is well within the agencies’ statutory authority and does not depart from their traditional regulatory approach.

A number of cases have concluded that the MQD does not apply because the case does not raise issues of major economic significance. For example, in SEC v. Coinbase, Inc., which rejected challenges to the SEC’s enforcement actions against Coinbase on the grounds that SEC overstepped its authority by treating cryptocurrency as a “security,” the Southern District of New York rejected a MQD challenge, finding that “while certainly sizable and important, the cryptocurrency industry falls far short of being a portion of the American economy bearing vast economic and political significance.” See also, e.g., Dep't of Fish & Game v. Fed. Subsistence Bd. (decision to open an emergency subsistence hunt for rural Alaskans is not of “vast economic and political significance”); United States v. Stratics Networks Inc. (FCC regulation of ringless voicemail providers does not implicate MQD because “there are only a handful of ringless voicemail providers, and the total market for ringless voicemail is small.”)

Cases applying the MQD

One area where the MQD has been applied with some consistency is in challenges to the Biden administration’s COVID-19 vaccine mandates. The Fifth, Sixth, and Eleventh Circuits have each applied the doctrine in this context to strike down vaccine mandates, but the Ninth Circuit took a different route, finding that the MQD applies only to agency actions, not to actions of the president.

The Sixth Circuit first applied the MQD to vaccine mandates in Kentucky v. Biden, decided in 2023. That case involved Kentucky’s challenge to the administration’s assertion of authority to require vaccination of federal contractors under the Federal Procurement Act’s general statement of purpose and corresponding grant to the president of powers “necessary to carry out” the act. The court applied the MQD based on its significant economic impact—the mandate would affect at least one-fifth of the U.S. workforce—and because it departed significantly from traditional property-and-services procurement and into the realm of public health. Later that year, in Georgia v. President of the United States, the Eleventh Circuit followed suit. The concurrence in that case argued that the MQD did not apply because the mandate did not involve delegation of power to an agency. The concurring judge reasoned that the MQD applies only to agencies that lack the immediate political accountability associated with direct presidential action.

Finally, in Louisiana v. Biden, the Fifth Circuit followed the precedents set by the Sixth and Eleventh Circuits. The dissent argued that the MQD did not apply because “it is only invoked when there are potential anti-delegation issues to agencies.” The majority rejected this view on the basis that the Supreme Court has not explicitly limited the doctrine to agency actions and that the Constitution “makes a single President responsible for the actions of the Executive Branch.” To leave the mandate in place, the court concluded, would amount to an “enormous and transformative expansion in” presidential power under the Procurement Act.

Departing from its sister circuits, the Ninth Circuit in Mayes v. Biden concluded that the MQD does not apply to direct presidential acts, pointing to the minority opinions in Louisiana and Georgia. The Ninth Circuit reasoned that the MQD is aimed at stemming agency actions that “would bring about an enormous and transformative expansion in . . . regulatory authority without clear congressional authorization,” but stressed that those concerns are rooted in agencies’ lack of political accountability that do not apply when the president acts through an executive order. Mayes was subsequently dismissed as moot, defusing the circuit conflict that might have otherwise justified Supreme Court review of this issue.

Application of MQD as an alternative grounds

Finally, several courts have recently invoked the MQD with little explanation as to how an agency action satisfies the tests laid down by the Supreme Court. In each of these cases, it is clear the court would have reached the same result without invoking the MQD. Hence, these cases shed little light either on how the MQD should be applied or whether it might change the result reached using ordinary methods of statutory interpretation. For example, in Arizona v. Garland, decided on April 16, 2024, the Western District of Louisiana invoked the MQD as part of its justification for rejecting the Biden administration’s attempts to revise the system for review of asylum applications by immigration judges. The decision asserts that “a fundamental change to established immigration procedures absent clear congressional intent implicates” the MQD but does not analyze whether the changes to the asylum system reach the threshold of a decision with major economic or political consequences.

Similarly, in Texas v. Nuclear Regulatory Commission, a panel of the Fifth Circuit concluded that the NRC lacks authority to license a private, away-from-reactor facility for storage of spent nuclear fuel. The decision reaches this conclusion based on the majority’s view of purportedly unambiguous statutory language. But it then adds an unnecessary and poorly explained feint toward the MQD, asserting that the MQD applies because the issue of nuclear waste disposal has been “hotly disputed” for decades. A closely divided Fifth Circuit denied a petition for rehearing en banc. The court’s plurality concluded that the panel had properly exercised jurisdiction based in part on the “ultra vires doctrine,” which allows a party, even if not aggrieved by the agency action, to challenge the action if it goes beyond the agency’s statutory or constitutional authority. The plurality opinion asserts that ultra vires “literally refers to being ‘outside’ the agency’s power, i.e., in defiance of the limits place by Congress in the agency’s governing statute. . .” Because the MQD addresses these same concerns, the ultra vires doctrine as construed by the Fifth Circuit may be another way to attack unjustified expansions of agency power.

Similarly, Kentucky v. Federal Highway Administration, a U.S. district court decision from April 2024, rejected, on ordinary statutory interpretation grounds, the administration’s attempt to require declining carbon dioxide emissions from tailpipes as a condition of states receiving federal highway funds. That case then adds a brief and largely unexplained nod to the MQD.

Based on the decisions that have been issued since West Virginia, it is difficult to draw any firm conclusions about whether the MQD is the major weapon against administrative action many foresaw or just another canon of statutory interpretation.

©2024. Published in Trends, Vol. 55, No. 6, July/August 2024, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.