Notice & Comment

The Major Questions Doctrine and Legislative Experimentation, by Fred B. Jacob

The oral arguments this week in Biden v. Nebraska and Department of Education v. Brown on student debt cancellation gave the Supreme Court another opportunity to expand upon the major questions doctrine, which the Court formally gave life last term in West Virginia v. EPA142 S. Ct. 2587 (2022). Daniel Deacon and Leah Litman have criticized the “new” major questions doctrine’s reliance on political controversy as a sign of a major question, contending that it will empower political minorities to amend enacted legislation granting broad statutory authority de facto. This post goes one step further and contends that construing congressional inaction and political controversy as indicia of a major question will chill legislating itself. 

Deciding what is a major question, at this point, is a bit more art than science. But, in its recent trilogy of major questions cases, the Court focused on Congress’s deliberation of, or its failure to enact, legislation on the relevant subject matter as an indicator of political significance. In Alabama Association of Realtors v. Department of Health and Human Services, Congress twice enacted an eviction moratorium before the CDC issued one through regulatory action under its administrative authority to contain disease. 141 S. Ct. 2485, 2488-90 (2021). In National Federation of Independent Business v. OSHA, the Court relied, in part, on the Senate passage of a resolution of disapproval under the Congressional Review Act of OSHA’s emergency standard mandating Covid-19 vaccinations for large employers. 142 S. Ct. 661, 666 (2022). Finally, in West Virginia itself, the Court cited to the fact that Congress “consistently rejected proposals to amend the Clean Air Act to create” a program similar to that which the EPA promulgated via regulation. 142 S. Ct. at 2614. 

With the focus on congressional inaction as a sign of a major question, legislators who support a robust administrative state with the ability to address emerging and unforeseen problems now face a dilemma when considering whether to introduce legislation to confirm agency authority. Take the regulatory scheme at issue in West Virginia as an example. In 2007, the Supreme Court in Massachusetts v. EPA held that the Clean Air Act grants the EPA authority to regulate greenhouse gasses emitted from motor vehicles as an “air pollutant.” 549 U.S. 497, 505. Other provisions of the Clean Air Act give the EPA authority to issue “Federal standards of performance” for “‘categories of stationary sources’ that it determines ‘cause[], or contribute[ ] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.’” 142 S. Ct. at 2601 (quoting 42 U.S.C. § 7411(b)(1)(A), (B)). Under West Virginia’s major questions formulation, however, a legislator considering legislation to specifically empower the EPA to regulate stationary source emissions of greenhouse gasses would pause. We now know that introducing, debating, and voting on legislation to make that implicit power explicit might create a major question (or give a court ammunition to find a major question) requiring clear congressional authorization, raising the stakes of the legislative gamble if the bill fails to pass. Because current statutory language arguably permits such regulation, avoiding legislative action altogether could preserve the question as an interstitial gap-filling one for the agency, rather than inadvertently elevating the issue to a major question. Fear of unintentionally creating a major question that precludes administrative initiatives will stymie congressional action (and not build the field of legislative dreams that some predict).

Similarly, look at the student loan cancellation at issue in Biden v. Nebraska and Department of Education v. Brown. The HEROES Act grants the Secretary of Education authority to “modify” or “waive” student loan programs during times of national emergency. 20 U.S.C. § 1098bb. Based on that authority, at the beginning of the pandemic, then-Secretary of Education Betsy DeVos suspended loan repayments and interest accrual, and both the Trump and Biden Administrations extended that repayment pause. During this time, Congress debated whether to enact specific legislation cancelling student loan debt, but failed to enact it. Then, President Biden invoked the HEROES Act to cancel between $10,000 and $20,000 of student loan debts for many borrowers; he did so based on the broad modification and waiver power Congress granted in the HEROES Act to alleviate economic burdens on borrowers caused by a national emergency, here the pandemic. At oral argument, however, Justice Kavanagh raised the failed congressional effort to cancel student loan debt as justification for finding a major question (Transcript at 54), suggesting that the subsequent legislative actions curtailed nunc pro tunc the HEROES Act’s broad grant of emergency powers to the executive. The Administration would have been in a stronger position had Congress never debated student loan cancellation at all. 

In this way, the major questions doctrine disincentivizes legislative experimentation. Real legislation is not Schoolhouse RockLegislative initiatives are significant undertakings of personnel, resources, and strategy, involving elected representatives, external advocacy groups, technical and staff expertise, and grassroots lobbying. Laws can take years, often decades, to receive a vote, much less to pass, evolving as the process unfolds. The more legislators attempt to introduce bills to supplement or confirm agency authority in already regulated subject areas—even if a reasonable interpretation of extant statutory language would permit agency activity—the more likely it is that the courts will find a major question. Given the myriad of strategic considerations that go into enacting legislation, it may be more prudent for legislators to refrain from introducing bills to improve agency functions or clarify ambiguous laws if doing so will undermine current agency authority. The Supreme Court should not be inhibiting legislative exploration in this way; rather, it should be encouraging Congress to take a continuing interest in the statutory basis for administrative action. 

The major questions doctrine also discourages policy cooperation between the Executive and Legislative Branches. This author has worked for two federal agencies that began as creative experiments of executive authority. By executive order, President Roosevelt established the National Labor Board to implement Section 7(a) of the National Industrial Recovery Act, which protected labor activity but provided no mechanism or agency for doing so. Drawing from the National Labor Board’s experience, Congress spent two years debating whether to codify it, endorsing a temporary Presidential board in 1934 and then the independent National Labor Relations Board in 1935’s Wagner Act. The NLRB, as a permanent executive branch agency, was based in large part on the policy successes discovered by executive action. 

Thirty-four years later, President Nixon signed Executive Order 11491 pursuant to his general authority over the civil service in 5 U.S.C. §§ 3301 and 7301. Executive Order 11491 expanded federal employees’ right to organize and established the Federal Labor Relations Council to administer significant aspects of the federal sector labor relations program. As with the Wagner Act, after accruing experience and building precedent under Executive Order 11491, Congress then codified the labor relations program in the Federal Service Labor-Management Relations Statute, which it adopted as part of the Civil Service Reform Act of 1978.

As agencies borne from general statutory language, the National Labor Board and the Federal Labor Relations Council emerged from Executive Branch experiments in policy making. And they were successful experiments, demonstrating that labor relations agencies regulating the private and public sectors, respectively, could eliminate sources of workplace strife. The Wagner Act and the Civil Service Reform Act were undoubtedly major questions, mired in political drama, consuming hundreds of legislative hours, and drawing attention from stakeholders throughout the nation. The Court’s current jurisprudence would have endangered both agencies once Congress started considering codification. Under the Court’s new major questions doctrine, legislative attention that generates political controversy could convert a previously promulgated agency regulation from a general gap-filler to a major question. After all, significant congressional attention to the codification of an existing regulation suggests a shortcoming in current statutory language, raising the specter of the Supreme Court’s presumption that Congress only allows an agency to regulate a major question with clear authorization.

Because the major questions doctrine hinders lawmaking, legislators now must balance the continuing viability of successful executive branch programs against the possibility that a failed codification effort may make the executive program a major question for which clear congressional authorization does not exist. If they choose restraint, Congress is denied the benefit of executive branch experience to inform its legislative program and turn good policy into law. If the major questions doctrine proves so manipulable, it will create incentives that run counter its ostensibly majoritarian underpinnings—that we should let Congress do the legislating—because the safest route will be no legislation at all.

Fred B. Jacob is the Solicitor of the National Labor Relations Board and a Professorial Lecturer in Law at the George Washington University Law School. He thanks Aram Gavoor and David B. Schwartz for their insightful suggestions. The views expressed in this post are solely those of the author and not those of the National Labor Relations Board, the United States Government, or George Washington University.

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