Notice & Comment

Taking Stock of West Virginia on its One-Year Anniversary, by Natasha Brunstein

This month marks one year since the Supreme Court decided West Virginia v. EPA, in which the Court expressly named and relied on the major questions doctrine for the first time. It is thus an apt time to take stock of West Virginia’s impact, particularly as we may see yet another landmark major questions doctrine decision from the Court by the end of the month in Biden v. Nebraska or Department of Education v. Brown.

Before West Virginiacommentators rightly criticized the major questions doctrine’s ambiguity and inconsistency. In West Virginia, the Court had the opportunity to clarify the doctrine and articulate a framework to guide lower courts. Although one could read West Virginia as an attempt to provide such guidance to lower courts (as Don Goodson and I explained here), it is admittedly far from a model of clarity, which has unsurprisingly led to continued inconsistency in the lower courts.

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 over the last year. My survey reveals that there is no one major questions doctrine in the lower courts. Like the Supreme Court’s cases predating West Virginia, judges have taken vastly different approaches to defining and applying the doctrine—even within the same circuit—illustrating that many judges view the doctrine as little more than a grab bag of factors at their disposal. The cases reflect that lower courts do not feel constrained in how they apply the doctrine, and their applications of the doctrine appear to largely track partisan lines.

As of this writing, eighty-one lower federal court cases have cited West Virginia, twenty-one of which discuss the major questions doctrine. Of these twenty-one cases, eight were from circuit courts (the D.C., Fifth, Sixth, Ninth, and Eleventh Circuits) and thirteen were from district courts (in the D.C., Fourth, Fifth, Sixth, and Eighth Circuits). These cases covered a wide range of issues, including student visas, gun control, campaign contributions, the terrorist watchlist, and Covid-19 masking and vaccine requirements, just to name a few. I discuss each of these cases in detail in my forthcoming article but highlight a few important points here.

To begin with, in sixteen out of the twenty-one cases, judges ruled in line with their political party appointment. Nine cases involved Democratic appointees upholding Biden administration agency actions, and seven cases involved Republican appointees invalidating Biden administration agency actions. Of the remaining five cases, three of them are hard to categorize but arguably could go either way. In Kaweah Delta Health Care District v. Becerra, Judge Consuelo B. Marshall, a Democratic appointee in the Central District of California, invalidated a Trump-era rule that the Biden administration defended. To my knowledge, this is the only instance of a court relying on the major questions doctrine to invalidate a Trump-era policy that the Biden administration chose to defend. In Kovac v. Wray, Judge Brantley Starr, a Republican appointee in the Northern District of Texas, upheld the Biden administration’s maintenance of the terrorist watchlist, which is not strictly a Democratic policy. And in United States v. Sadrinia, Judge David L. Bunning, a Republican appointee in the Eastern District of Kentucky, upheld the Attorney General’s and Drug Enforcement Administration’s rule under the Controlled Substances Act in the context of a criminal prosecution, which also does not concern a strictly Democratic policy. The two remaining cases involved Republican appointees upholding Biden administration agency actions. 

Another somewhat related finding concerns which judges relied on Justice Gorsuch’s concurrence in West Virginia, which advances a major questions doctrine that differs materially from that of the majority opinion. Sixteen of the twenty-one decisions apply the West Virginia majority opinion, while five opinions rely partly or exclusively on Justice Gorsuch’s concurrence. All five of these opinions were from district courts in the Fourth, Fifth, and Eighth Circuits, and all five of these judges were appointed by Republican presidents.

A few other developments are worth noting. First, there is a circuit split over whether the major questions doctrine does not apply, as a categorical matter, to procurement actions of the president. Four of the twenty-one cases concerned President Biden’s vaccine mandate for federal contractors. The Ninth Circuit held that the major questions doctrine is categorically inapplicable to procurement actions of the president, while the FifthSixth, and Eleventh Circuits disagreed.

Second, there was one case in which the court found that the agency action triggered the major questions doctrine, but that the agency action had the requisite clear congressional authorization, are therefore survived: Kovac v. Wray. To my knowledge, this is the first and only case to come out this way. This case demonstrates that triggering the major questions doctrine is not necessarily fatal to an agency action.

Finally, in one case, Texas v. United States in the Fifth Circuit, the court found that the agency program at issue (DACA) triggered the major questions doctrine not because of the costs of the agency action, but because of its benefits. Here, the court wrote that “DACA is of enormous political and economic significance to supporters and opponents alike” and cited that “national GDP may contract by as much as $460 billion without DACA” and that “DACA contributes over $3.5 billion in net fiscal benefits to federal, state, and local entities.”

Although it is possible to read West Virginia as providing a framework to guide lower courts’ application of the major questions doctrine, West Virginia was sufficiently unclear that lower courts have not applied the doctrine in any consistent or disciplined way. To the contrary, in most cases, lower courts appear to read West Virginia (incorrectly, in my view) as providing vast discretion in applying the doctrine to reach outcomes that at least appear to align with the partisan preferences of the judge’s appointing president. If the Court reaches the major questions doctrine in Biden v. Nebraska or Department of Education v. Brown, it should use that opportunity to articulate a workable doctrine that more clearly constrains discretionary applications of the doctrine to avoid the appearance of purely partisan results.

Natasha Brunstein is a Legal Fellow at the Institute for Policy Integrity at NYU School of Law. 

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