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Limitation on Chevron deference

When the Supreme Court started to invoke this principle, it was as a limitation another principle of statutory interpretation the Supreme Court had articulated around a decade earlier: Chevron deference. In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), the Supreme Court stated a two-step standard for when courts should defer to a federal regulatory agency's legal interpretation of a statute that Congress has directed the agency to enforce:

First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute . . . Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.

Chevron was among the most important decisions in administrative law. However, during its forty-year history there was not agreement on exactly how broadly it applies. During the Roberts Court, the conservative majority became increasingly skeptical of Chevron and eventually overruled it in Loper Bright Enterprises v. Raimondo (2024), leaving this aspect of the major questions doctrine extraneous.

When Chevron was still a recent decision, then-Judge Stephen Breyer, a former professor of administrative law and future justice of the Supreme Court, wrote a law review article about deference on questions of law and policy. He said that courts are more likely to defer on "interstitial matters" than on more significant questions. While Congress often delegate the details of a regulatory scheme to the agency, "Congress is more likely to have focused upon, and answered, major questions", Breyer said.

The Supreme Court likewise made this point in MCI Telecommunications Corp. v. AT&T Co. (1994). Justice Scalia wrote the decision of the Court rejecting an effort by the Federal Communications Commission to deregulate prices charged by common carriers. Even though the Communications Act required common carriers to file "tariffs" setting fixed prices for their service, the FCC relied on a provision allowing it to "modify any requirement" in order to make this requirement optional. The Court held that statutory authorization to "modify" refers only to smaller changes, and does not extend to setting aside entirely such a significant statutory mandate. The dissenting justices would have upheld the FCC's deregulatory interpretation under Chevron.

It is highly unlikely that Congress would leave the determination of whether an industry will be entirely, or even substantially, rate-regulated to agency discretion—and even more unlikely that it would achieve that through such a subtle device as permission to "modify" rate-filing requirements.<

This was the "first sign of"—or "laid the groundwork" for—the major questions doctrine, according to some scholars. However, others point to Industrial Union Department v. American Petroleum Institute (1980) (the Benzene Case) or even Interstate Commerce Commission v. Cincinnati, New Orleans & Texas Pacific Railway Co. (1897) (the Queen and Crescent Case).

The Supreme Court more clearly set forth majorness as an exception to Chevron in FDA v. Brown & Williamson Tobacco Corp. (2000).

Clear statement rule

Since 2021, the Supreme Court has shifted the major questions doctrine away from an exception to Chevron deference toward a broader limitation on unclear delegations by Congress. As part of a wider pattern in the eight years preceding the 2024 overruling of Chevron in Loper Bright Enterprises v. Raimondo, the Supreme Court did not rely on Chevron in these cases. Instead, it relied on language in its major questions cases that suggested a broader principle. (E.g., UARG)

Significant cases

Telecommunications price deregulation

In MCI Telecommunications Corp. v. AT&T Co. (1994), Justice Scalia wrote the decision of the Court rejecting an effort by the Federal Communications Commission to deregulate prices charged by common carriers. Even though the Communications Act required common carriers to file "tariffs" setting fixed prices for their service, the FCC relied on a provision allowing it to "modify any requirement" in order to make this requirement optional. The Court held that statutory authorization to "modify" refers only to smaller changes, and does not extend to setting aside entirely such a significant statutory mandate. The dissenting justices would have upheld the FCC's deregulatory interpretation under Chevron.

Tobacco and cigarettes

In FDA v. Brown & Williamson Tobacco Corp. (2000), Justice O'Connor wrote that the authority of the Food and Drug Administration to regulate "drugs" or "devices" did not extend to regulating cigarettes and tobacco, relying in part on "common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency" (citing MCI v. AT&T). The Court noted that if the FDA's interpretation were correct, then the FDA would have a duty to prohibit cigarettes entirely (because they are unsafe and non-therapeutic devices).

Air quality standards

In Whitman v. American Trucking Ass'ns, Inc. (2001), a decision holding that Congress unambiguously directed the Environmental Protection Agency to set NAAQS clean air standards without considering costs, Justice Scalia wrote for the Court that "Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes."

Assisted suicide

In Gonzales v. Oregon (2006), the Court held that the Attorney General did not have authority under the Controlled Substances Act to prohibit doctors from prescribing regulated drugs for use in physician-assisted suicide where allowed by state law. A.G. Alberto Gonzales had relied on a statutory provision allowing him to revoke a physician's prescription-drug registration when "inconsistent with the public interest." Writing for the majority, Justice Kennedy said that "[t]he importance of the issue of physician-assisted suicide, which has been the subject of an 'earnest and profound debate' across the country, [Washington v. Glucksberg], 521 U. S., at 735, makes the oblique form of the claimed delegation all the more suspect."

Small sources of carbon emissions

In Utility Air Regulatory Group v. EPA (2014), the Court held that, for purposes of a portion of the Clean Air Act regulating "small sources," the phrase "air pollutants" did not extend to carbon dioxide. Even though the Court had held in Massachusetts v. EPA (2007) that "air pollutants" as used in another section of the statute included carbon dioxide, a majority in UARG v. EPA rejected that same interpretation because it would allow EPA to regulate "the operation of millions[] of small sources nationwide" including "large office and residential buildings, hotels, large retail establishments, and similar facilities." Because of that, the Court said that it would first expect Congress to speak clearly before sweeping in such a broad swath of the American economy.

Affordable Care Act subsidies

In King v. Burwell (2015), a case interpreting the Affordable Care Act, the decision of Chief Justice Roberts declined to apply Chevron deference based on the major questions doctrine. The statute, which gives subsidies to insurance plans bought on exchanges "established by the State," was interpreted by the Department of Health and Human Services to also apply to an exchange established by the federal government. HHS relied in part on Chevron deference to support its interpretation, but the Court said that the agency was not entitled to deference. And even though the Court stated that "the most natural reading of the pertinent statutory phrase" went against HHS, nevertheless the Court agreed that HHS's reading was the correct one based on the larger statutory scheme.

COVID-19 eviction moratorium

In Alabama Ass'n of Realtors v. Department of Health and Human Services (2021) (per curiam), the Court concluded that the Centers for Disease Control and Prevention (CDC) could not institute a nationwide eviction moratorium under its authority to adopt measures "necessary to prevent the [...] spread of" disease. The decision also noted that "[t]he moratorium intrudes into an area that is the particular domain of state law: the landlord-tenant relationship" and that "'[o]ur precedents require Congress to enact exceedingly clear language if it wishes to significantly alter the balance between federal and state power and the power of the Government over private property'" (quoting U.S. Forest Service v. v. Cowpasture River Preservation Assn. (2020)).

COVID-19 vaccine mandate for healthcare workers

Biden v. Missouri (2022) (per curiam)

COVID-19 vaccine mandate for workplaces

National Federation of Independent Business v. Occupational Safety and Health Administration (2022) (per curiam)

Greenhouse gases

In West Virginia v. EPA (2022), the Supreme Court held, in a decision by Chief Justice Roberts that the phrase "best system of emission reduction [...] adequately demonstrated" (BSER) in section 111 of the Clean Air Act (42 U.S.C. § 7411) did not allow EPA to set emissions standards based on phasing out coal or natural gas, but rather only based on techniques to improve efficiency within each type of energy generation. The Court said that this "generation shifting" approach (rather than a "technology-based approach"), adopted for the first time in the 2015 Clean Power Plan, was an "unheralded power" and "transformative expansion" of the agency's "regulatory authority" found in an "ancillary provision" "that was designed to function as a gap filler and had rarely been used in the preceding decades" in order "to adopt a regulatory program that Congress had conspicuously and repeatedly declined to enact itself" that "essentially adopted a cap-and-trade scheme, or set of state cap-and-trade schemes, for carbon" and would allow "unprecedented power over American industry." Accordingly, the Court concluded that the EPA would have needed "clear congressional authorization" to overcome the Court's skepticism that Congress would have legislated in such a manner.

Student loan forgiveness

In Biden v. Nebraska (2023), the Court relied in part on the major questions doctrine in its holding that Congress did not authorize the Department of Education to institute a sweeping student loan forgiveness program under the HEROES Act of 2003. Justice Barrett also filed a concurring opinion specifically devoted to analyzing the doctrine and its origins. She argued that it is not a clear statement rule in tension with textualism but rather a contextual and intuitive linguistic canon for determining the plain meaning of a statute.

See also

• Nondelegation doctrine

Works cited

Legal scholarship

• Beau Baumann, The Major Questions Doctrine Reading List, Yale J. on Regul.: Notice & Comment (March 18, 2023).
• Stephen G. Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363 (1986).
• Josh Chafetz, The New Judicial Power Grab, 67 St. Louis U. L.J. 635 (2023).
• Daniel T. Deacon & Leah M. Litman, The New Major Questions Doctrine, 109 Va. L. Rev. 1009 (2023).
• Thomas B. Griffith & Haley N. Proctor, Deference, Delegation, and Divination: Justice Breyer and the Future of the Major Questions Doctrine, 132 Yale L.J. 693 (2022).
• Lisa Heinzerling, The Major Answers Doctrine, 16 N.Y.U. J.L. & Liberty 506 (2023).
• Mila Sohoni, The Major Questions Quartet, 136 Harv. L. Rev. 263 (2022).
• Todd Phillips & Beau J. Baumann, The Major Questions Doctrine's Domain, 89 Brook. L. Rev. 3 (2024).
• Vivienne Pismarov, The Elephant Named "Climate Change": Why the Major Questions Doctrine after Bostock Shouldn't Prohibit Extensive Climate Action under the Clean Air Act, 45 Environs: Env't L. & Pol'y J. 35 (2021).
• Cass Sunstein, There Are Two 'Major Question' Doctrines, 73 Admin. L. Rev. 475 (2021).
• Cass Sunstein, Two Justifications for the Major Questions Doctrine, 76 Fla. L. Rev. 251 (2024).
• Chad Squitieri, Who Determines Majorness?, 44 Harv. J.L. & Pub. Pol'y 465-67 (2021).
• Daniel Walters, The Major Questions Doctrine at the Boundaries of Interpretive Law, 109 Iowa L. Rev. 465 (2023).
• Wurman Ilan, Importance and Interpretive Questions, 110 Va. L. Rev. 909 (2024).

Cases

• MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U.S. 218 (1994).
• Food & Drug Administration v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).
• Whitman v. American Trucking Ass'ns, Inc., 531 U.S. 457 (2001).
• Gonzales v. Oregon, 546 U.S. 243 (2006).
• Utility Air Regulatory Group v. Environmental Protection Agency, 573 U.S. 302 (2014).
• King v. Burwell, 576 U.S. 473 (2015).
• United States Telecom Ass'n v. FCC, 855 F.3d 381, 422 (D.C. Cir. 2017) (en banc).
• Alabama Ass'n of Realtors v. Department of Health and Human Services, 141 S.Ct. 2485 (2022) (per curiam).
• Biden v. Missouri, 142 S.Ct. 647 (2022) (per curiam).
• National Federation of Independent Business v. Occupational Safety and Health Administration, 142 S.Ct. 661 (2022) (per curiam).
• West Virginia v. Environmental Protection Agency, 142 S.Ct. 2587 (2022).
• Biden v. Nebraska, 143 S.Ct. 2355 (2023).

Category:United States administrative law Category:Legal doctrines and principles