I. Introduction

“Springfield has become . . . the most polluted city in the history of the planet. . . . To prevent your poisons from spreading, your government has sealed you all in this dome.”[1] The ambitious Russ Cargill—head of the Environmental Protection Agency (EPA) in The Simpsons Movie and owner of “the company that makes the dome”—continued to explain that the federal agency had no choice but to trap the citizens of Springfield in a gigantic clear dome to preserve the health of the rest of the country.[2] When Cargill, and by extension the EPA, decided that the dome was “a terrible mistake,” his adjustment entailed blowing up the city.[3] At one point, one of Cargill’s federal employees expressed his concern that the bureaucrat had “gone mad with power,” to which Cargill shamelessly agreed.[4] Whereas others would prefer to handle the exercise of power through the court system, Homer Simpson eventually saved the day by riding a motorcycle at breakneck speed around the dome so that his son, Bart, could throw the bomb through a hole in the top and save the city.[5]

Some have been so startled by the recent attempts of federal agencies to exercise power that they could mistake The Simpsons Movie for a documentary. To these people, the major questions doctrine (MQD) is a shield of protection wielded by the U.S. court system, and, most recently, by the U.S. Supreme Court in West Virginia v. Environmental Protection Agency.[6] To others, the MQD has been improperly used in a way that “undercuts the capacity of the responsible federal officials, acting well within the scope of their authority, to protect American workers from grave danger.”[7]

This Note examines the MQD in depth. Part II examines the background and development of the doctrine and focuses on the two most recent cases that cited it: National Federation of Independent Business v. OSHA and West Virginia v. EPA. Part III attempts to use the existing caselaw to create a structured legal test that could be used to apply the doctrine. Part IV then considers some of the perceived challenges of utilizing the framework as well as some proposed solutions. Part V concludes with a brief prediction for how the MQD could be utilized by the court system in the future.

II. Background

A. The Doctrine Before the Trump Era and His “Conservative Supermajority”

The MQD was thrust into the public spotlight when the Supreme Court published West Virginia v. Environmental Protection Agency,[8] but the history of the doctrine goes back further. The essence of the MQD can be summarized in a single quote from the Supreme Court: “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”[9] In other words, if the Court decides that the regulation a federal agency pushes is one “of vast ‘economic and political significance,’” then the Court will only uphold the regulation if it is convinced that the organic statute gave the agency in question clear authority to act.[10] The doctrine has always been subject to debate, and “the Supreme Court has never explicitly announced such a doctrine in a majority opinion”[11] until recently.

The MQD has been seen in the past as another attempt to limit the legal rule from Chevron v. NRDC which created, to some, a “grave separation of powers conce[rn].”[12] Many believe that the Supreme Court first hinted at the doctrine in MCI Telecommunications Corp. v. AT&T when the Court “held that the Federal Communications Commission lacked authority to exempt certain carriers from regulation under its statutory authority to ‘modify’ filing requirements for carriers because . . . it was ‘highly unlikely that Congress would leave the determination of whether an industry will be entirely, or even substantially, rate-regulated to agency discretion.’”[13] The Court more directly addressed the issue in 2000 when it held that “it defied ‘common sense’ that Congress would ‘delegate a policy decision of such economic and political magnitude to an administrative agency.’”[14] The Supreme Court invoked the doctrine again in 2014 in Utility Air Regulatory Group v. EPA.[15] In Utility Air, the Supreme Court held that the “EPA exceeded its statutory authority when it interpreted the Clean Air Act to require PSD and Title V permitting for stationary sources based on their greenhouse-gas emissions.”[16]

B. The Major Questions Doctrine Blocks the CDC Eviction Moratorium

The first significant case to discuss, decided by “Donald Trump’s 6-3 conservative supermajority,” is Alabama Association of Realtors v. Department of Health and Human Services.[17] During the COVID-19 pandemic, the Center for Disease Control (CDC) attempted to extend the nationwide moratorium on evictions that expired when Congress declined to renew the original in July 2021.[18] In the case, “[r]ealtor associations and rental property managers in Alabama and Georgia sued to enjoin the CDC’s moratorium.”[19] The District Court for the District of Columbia held that the CDC did not have authority from Congress to extend the moratorium, but “stayed its order pending appeal.”[20] The plaintiffs petitioned the Supreme Court to vacate the stay, which the Court did in another nod to the MQD: “If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.”[21] In support of its reasoning, the Court noted that Congress authorized:

[M]easures that could be necessary: inspection, fumigation, sanitation, pest extermination, and destruction of contaminated animals and articles. These measures directly relate to preventing the interstate spread of disease by identifying, isolating, and destroying the disease itself. The CDC’s moratorium, on the other hand, relates to interstate infection far more indirectly: If evictions occur, some subset of tenants might move from one State to another, and some subset of that group might do so while infected with COVID-19.[22]

The Court divided down partisan lines, with Justices Breyer, Sotomayor, and Kagan dissenting.[23]

C. The Major Questions Doctrine Blocks a Vaccine Mandate

As if the doctrine were not controversial enough, the Supreme Court utilized the same logic twice more in 2022. In National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration, the Court had to decide whether the Occupational Safety and Health Act granted the Secretary of Labor the authority to impose a federal vaccine (or weekly test) mandate on any employers with 100 or more employees.[24] The controversy began when “[t]he Secretary of Labor, acting through the Occupational Safety and Health Administration . . . enacted a vaccine mandate for much of the Nation’s work force. The mandate . . . applie[d] to roughly 84 million workers.”[25] Under the mandate, covered workers had to receive a COVID-19 vaccine, and “[t]he only exception [was] for workers who obtain[ed] a medical test each week at their own expense and on their own time, and also [wore] a mask each workday.”[26] Almost immediately, parties across the United States began to challenge the rule.[27] The Fifth Circuit stayed the mandate, but the Sixth Circuit allowed the rule to take effect after the cases were consolidated before it.[28]

The Occupational Safety and Health Administration (OSHA) relied on the authority granted in the Occupational Safety and Health Act to promulgate the regulation.[29] “OSHA is tasked with ensuring occupational safety—that is, ‘safe and healthful working conditions,’” and, like many federal agencies, is required by its organic statute to develop rules “using a rigorous process that includes notice, comment, and an opportunity for a public hearing.”[30] The Court explained that OSHA could, however, use an exception for “emergency temporary standards” in the event that it was necessary to promulgate a rule effective immediately. However, these situations were only available if “the Secretary [could] show (1) ‘that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,’ and (2) that the ‘emergency standard is necessary to protect employees from such danger.’”[31] Before COVID-19, the Secretary had only utilized the power nine times, with six being challenged in court, and only one being fully upheld.[32]

The majority gave another nod to the MQD in considering “whether the [Occupational Safety and Health Act] plainly authorizes the Secretary’s mandate” before briefly concluding that “[i]t does not.”[33] Although the Court never actually referred to the doctrine by name, the logic still applied: the majority was careful to explain that narrowly tailored regulations for COVID-19 were acceptable, but OSHA could not set “broad public health measures.”[34] In support of its reasoning, the Court noted that:

It is telling that OSHA . . . has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace. This . . . coupled with the breadth of authority that the Secretary now claims, [indicates] that the mandate extends beyond the agency’s legitimate reach.[35]

The Court accordingly reinstated the stay on the mandate.[36]

Justice Gorsuch would have taken the holding a step further and completely done away with the mandate.[37] In his concurrence, Gorsuch stated that “[t]he [MQD] serves a similar function by guarding against unintentional, oblique, or otherwise unlikely delegations of the legislative power . . . . The [MQD] guards against [agencies seeking to exploit ambiguity in a statute] by recognizing that Congress does not usually ‘hide elephants in mouseholes.’”[38] Regardless of the final result, it is clear that both the majority and Justice Gorsuch in his concurrence believed that OSHA should not exercise such broad authority, even during an emergency, without explicit authorization from Congress.[39]

D. The Major Questions Doctrine Blocks an Environmental Regulation

For the first time, a majority discussed the MQD in a Supreme Court decision in West Virginia v. Environmental Protection Agency when the Court had to decide whether the Clean Air Act granted the administrative agency the authority to promulgate a regulation that would effectively transform the energy industry.[40]

Historically, the EPA utilized three regulatory programs to control air pollution production from power plants.[41] The first program allows the EPA to set an acceptable standard for National Ambient Air Quality Standards (NAAQS) and then delegates the responsibility to the states to meet those standards.[42] The second program targets Hazardous Air Pollutants (HAP) and delegates the responsibility to EPA to determine “the ‘maximum degree of reduction’ it considers ‘achievable’ in practice by using the best existing technologies and methods.”[43] The third program mandates that EPA “list ‘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.’”[44] The Court noted that “[g]enerally speaking, a source may achieve that emissions cap any way it chooses; the key is that its pollution be no more than the amount ‘achievable through the application of the best system of emission reduction . . . adequately demonstrated,’ or the BSER.”[45]

In October 2015, the EPA promulgated two new rules meant to address carbon dioxide emissions from power plants.[46] Together, the rules regulated the allowable levels of pollution from both old and new coal fire plants.[47] For existing plants, a series of allowable emissions standards were promulgated through “building blocks” that would ultimately “implement a sector-wide shift in electricity production from coal to natural gas and renewables.”[48] The EPA explicitly predicted that “[b]ased on these changes . . . it would be feasible to have coal provide 27% of national electricity generation, down from 38% in 2014.”[49] The administration also acknowledged that “the rule would entail billions of dollars in compliance costs (to be paid in the form of higher energy prices), require the retirement of dozens of coal-fired plants, and eliminate tens of thousands of jobs across various sectors.”[50]

Before the regulations ever went into effect, dozens of petitioners sought a stay of the rule in the D.C. Circuit.[51] While the D.C. Circuit did not stay the rule, the Supreme Court did so upon review.[52] After the Trump administration took office, the EPA “repealed the rule in 2019, concluding that the Clean Power Plan had been ‘in excess of its statutory authority’ under Section 111(d).”[53] In deciding to repeal the rule, “[t]he Agency determined that ‘the interpretative question raised’ by the Clean Power Plan—‘i.e., whether a “system of emission reduction” can consist of generation-shifting measures’—fell under the ‘major questions doctrine.’”[54] The EPA determined that under the doctrine, “a clear statement was necessary to conclude that Congress intended to delegate authority ‘of this breadth to regulate a fundamental sector of the economy,’” of which “[i]t found none.”[55]

Several states and private parties immediately petitioned the D.C. Circuit to review the repeal of the Clean Power Plan, while others (including the petitioners in the case) intervened to defend the repeal.[56] The D.C. Circuit “concluded that the [MQD] did not apply, and thus rejected the need for a clear statement of congressional intent to delegate such power to [the] EPA.”[57] Accordingly, the D.C. Circuit vacated the repeal and remanded to the Agency.[58] After a shift to the Biden administration, “[the] EPA moved the Court of Appeals to partially stay the issuance of its mandate as it pertained to the Clean Power Plan . . . to ensure that the [plan] would not immediately go back into effect” while it considered promulgating a new Section 111(d).[59] The Supreme Court granted the petitions for certiorari from the states that defended the repeal of the regulation.[60]

After concluding that the petitioners had standing to challenge the repeal, the Court considered whether the Clean Air Act granted the EPA the authority to mandate such a massive shift in the energy industry.[61] Consistent with its opinion in National Federation of Independent Business v. OSHA, the Court held that “it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d).”[62] In support, the Court offered the justification that under the circumstances, “precedent counsels skepticism toward EPA’s claims that Section 111 empowers it to devise carbon emissions caps based on a generation shifting approach. To overcome that skepticism, the Government must—under the [MQD]—point to ‘clear congressional authorization’ to regulate in that manner.”[63] The dissent, on the other hand, enthusiastically disagreed, stating that “the Court strip[ped] the Environmental Protection Agency (EPA) of the power Congress gave it to respond to ‘the most pressing environmental challenge of our time.’”[64] Notably, the dissent balked at the idea that the majority was simply following precedent, and pointed out the fact that this case was the first time that a majority had explicitly cited to the doctrine.[65]

III. Making Sense of the Precedent

There has been a great deal of controversy over the application of the MQD. Some have even questioned whether such a doctrine exists in any practical sense.[66] Still, there is no detailed explanation of what the MQD process entails other than an opinion detailing the intuitive process that the Supreme Court is following.[67] Since it appears that the doctrine is here to stay, this Section attempts to provide some structure to the apparent two-step test; the first step determines whether the question is a “major question,” and the second considers whether Congress has already granted the agency in question the authority to act in the way it is attempting to. Because some clarity has been brought to the doctrine in recent decisions, the focus will mainly be on developments made post Alabama Association of Realtors v. HHS.

This Note suggests a standard factors test for deciding whether a case is “extraordinary,” which will be referred to as “Major Questions Test Step 1.” A second factors test should assess the agency’s proximity to the area in which it seeks authority. If an agency is not considered closely situated to the area of authority it is trying to exercise, then the regulation will automatically be disqualified.[68] This will be referred to as “Major Questions Test: Step 2.” After finding that a case is “extraordinary” in Step 1 and that the agency in question shows close proximity to the area in which the power is being sought, the inquiry then finishes with basic cannons of statutory interpretation. By switching to this model, courts could provide some sort of objectivity in their decisions that should relieve anxiety and reduce apprehension towards the doctrine while simultaneously reducing the likelihood that it simply becomes a partisan tool.

A. Major Questions Test Step 1: How Extraordinary Is “Extraordinary?”

1. Is the Health of the Population at Risk?

The Court has repeatedly stated—in one form or another—that it “expect[s] Congress to speak clearly when authorizing an agency to exercise powers of 'vast “economic and political significance.””[69] The phrasing can be traced back to FDA v. Brown & Williamson Tobacco Corp., where the Court decided an issue regarding “one of the most troubling public health problems facing our Nation today: the thousands of premature deaths that occur each year because of tobacco use.”[70] Similarly, the Court considered an eviction moratorium intended to prevent the spread of disease to be an “extraordinary” case.[71] In that same category, utilizing employers to enforce a vaccine mandate was considered “extraordinary” as well.[72] Read together, these three cases suggest that any situation that implicates the immediate health of the population at the federal level is considered a major sign that the case is “extraordinary.” This makes sense because federal agencies can exercise their authority throughout the country, and judicial review takes place in the federal court system.[73] This leads to the first and most obvious factor: to what scale is the health of individuals across the country implicated?[74]

2. What Are the Federal Economic Implications at Stake?

In West Virginia v. EPA, the Supreme Court expressed concern that the EPA was “arguing that Section 111(d) empowers it to substantially restructure the American energy market.”[75] This was not the first time that the court considered a case from an economic standpoint. In MCI Telecomms. Corp. v. AT&T Co., the court explained:

To consider the latter point first: For the body of a law, as for the body of a person, whether a change is minor or major depends to some extent upon the importance of the item changed to the whole. Loss of an entire toenail is insignificant; loss of an entire arm tragic. The tariff-filing requirement is, to pursue this analogy, the heart of the common-carrier section of the Communications Act.[76]

Clearly, the Court recognizes that major shifts in certain industries can have a large trickledown effect to the greater economy. It seems, then, that when the Court expressed concern for issues of “vast ‘economic and political significance,’”[77] its concern was not limited to immediate impacts on the Nation’s economy at large. As such, the second factor that courts should consider is whether there is a large economic impact on an industry.

3. How Do You Quantify “Political Significance?”

In West Virginia v. EPA, the Court referenced Gonzales v. Oregon where it “confronted the Attorney General’s assertion that he could rescind the license of any physician who prescribed a controlled substance for assisted suicide, even in a State where such action was legal.”[78] Before Gonzales, “Oregon became the first State to legalize assisted suicide when voters approved a ballot measure enacting the Oregon Death With Dignity Act (ODWDA).”[79] In the end, the Court held that “[t]he text and structure of the CSA show that Congress did not have this far-reaching intent to alter the federal-state balance and the congressional role in maintaining it.”[80] This suggests that a third factor is needed to fully evaluate what an “extraordinary case” is: does the proposed action from the federal figure overturn a state or federal statute that was promulgated through the democratic process, or does it otherwise upset the balance between state and federal authority?

B. Major Questions Test Step 2: Did Congress Grant Statutory Authority?

If a court decides that the controversy is an “extraordinary case” through the preceding three factors, then the inquiry should proceed to consider what authority the statute in question grants to the federal agency. While traditional tools of statutory interpretation will eventually have to be used, the following framework will reduce the reliance on subjective interpretations.

1. What Is the Relationship Between the Agency and the Authority It Is Trying to Use?

In almost every recent case regarding the MQD, the Court expressed concern regarding the agency in question expanding into areas of regulation that seem loosely related to the goals implemented by the organic statute, for lack of a better descriptor.[81] In each case, the dissent has questioned this conclusion.[82] As such, this Subsection will attempt to bring some of the common threads undermining the majority decisions together into a coherent framework.[83]

a. Congressional Inaction Can Be as Significant as Congressional Action. In December 2020, Congress extended the CDC’s moratorium on evictions.[84] The dissent in Alabama Association of Realtors cited this as evidence that Congress clearly authorized the CDC to extend the eviction moratorium.[85] Indeed, the original moratorium was ordered through an executive order by the CDC,[86] which gives the impression that Congress did recognize the CDC’s statutory authority to impose a moratorium. Regardless, the Consolidations Appropriations Act went unchallenged in court, so the federal court system never ruled on the issue.[87] It could be that, before December 2020, the country was still dealing with the uncertainty, and it was no one’s priority to challenge the CDC’s executive order. In any case, the conservative majority thought that Congress’s decision to not renew the moratorium was as important as, if not more important than, extending it the first time.[88] Without the original order being challenged in court before Congress extended it, the now-binding precedent from the Supreme Court clearly establishes that Congress refusing to extend an agency order, even if it had extended it in the past, can hint at the authority the statute initially granted the executive agency.

b. Is There a Significant Departure from Prior Agency Actions? In West Virgina v. EPA, the majority noted that “[i]t is one thing for Congress to authorize regulated sources to use trading to comply with a preset cap, or a cap that must be based on some scientific, objective criterion . . . . [i]t is quite another to simply authorize EPA to set the cap itself wherever the Agency sees fit.”[89] This seemingly indicates that if there is a significant departure from past actions that either have gone unchallenged in court or been challenged and prevailed, the Court should consider that.[90]

Alabama Association of Realtors broadly demonstrates this type of reasoning as well. The Court lists some measures that the CDC would be authorized to take to stop the spread of infectious diseases.[91] However, in support of its holding to vacate the eviction moratorium, the Court asks: “Could the CDC, for example, mandate free grocery delivery to the homes of the sick or vulnerable? Require manufacturers to provide free computers to enable people to work from home? Order telecommunications companies to provide free high-speed Internet service to facilitate remote work?”[92] The Court is concerned with this hypothetical because:

[since § 361(a)'s] enactment in 1944, no regulation premised on it has even begun to approach the size or scope of the eviction moratorium. [The departure from precedent] is further amplified by the CDC’s decision to impose criminal penalties of up to a $250,000 fine and one year in jail on those who violate the moratorium.[93]

Though this is not the only criminal regulation promulgated by the CDC, it is still uncommon.[94] As such, it seems that the Court will consider whether the agency in question has taken similar actions in the past.[95]

2. Statutory Interpretation

If the proposed test is applied correctly, utilizing regular statutory interpretation tools should be the last step. Still, the Court seems to stress the importance of discerning congressional intent.[96] Because any MQD controversy most likely arises out of a statute with no clear plain meaning, any court considering this last step should give the most weight to whole act canons to ensure consistency among statutory interpretations.

For example, the Federal Communications Act of 1934 (FCA), which created the Federal Communications Commission (FCC), states that the purpose of the administration is to regulate “interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of United States . . . world-wide wire and radio communication service with adequate facilities at reasonable charges,” and to promote “safety of life and property through the use of wire and radio communication.”[97] In 47 U.S.C. § 276, the FCA states “the Commission shall determine whether public interest payphones, which are provided in the interest of public health, safety, and welfare, in locations where there would otherwise not be a payphone, should be maintained, and if so, ensure that public interest payphones are supported fairly and equitably.”[98] The Court should avoid reading “public interest” in 47 U.S.C. § 157(a) in a way that would prioritize maximizing GDP over data protection and the privacy of an individual.[99]

In any sort of case, the interpretation will unavoidably be influenced by the personal bias of each individual sitting Justice with a vote. However, by focusing on bringing consistency to each organic statute, the MQD will eventually become more predictable as judges create binding precedent. This stays true to the purpose of the entire proposed framework.

IV. Potential Concerns for the Framework

Judicial chaos is certainly on the horizon as “the doctrine will no doubt be urged in challenges to regulatory actions in federal courts across the nation[, a]nd the lower federal courts will have to flesh out the doctrine’s contours, especially given that the majority opinion in West Virginia v. EPA did little to establish an administrable framework.”[100] One of the issues that would keep the MQD from becoming a tool for courts to use is that it “seems to operate in only one direction: deregulatory.”[101] This is a fair concern; a purely deregulatory MQD would seem to create yet another frustrating illustration of political gridlock that an individual citizen feels powerless to address.[102] The goal of this Section is to consider a proposed solution that could make the MQD productive. Specifically, it examines the ideas of Christopher J. Walker’s article A Congressional Review Act for the Major Questions Doctrine from the Harvard Journal of Law and Public Policy.

A. The Congressional Review Act

Walker theorizes that “in responding to the new major questions doctrine, perhaps the most analogous legislative tool is the Congressional Review Act of 1996 (CRA).”[103] The CRA requires an agency to submit a report to Congress before any new rule takes effect.[104] If Congress decides that it is a “major rule,” then the rule will not take effect “for at least 60 days after its submission to Congress.”[105] The idea is to give Congress sufficient time to decide whether to permit a “major rule” to take effect.[106] During this time period, Congress can enact a “joint resolution of disapproval” which prevents the rule from taking effect and “prohibits the agency from promulgating ‘a new rule that is substantially the same’ as the rule at issue ‘unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.’”[107]

B. Using the CRA to Facilitate Inter-Branch Cooperation in Light of the Major Questions Doctrine

Walker’s solution would create a similar process once a federal court utilizes the MQD to halt an agency action. Hypothetically, once the court issues a decision, “Congress [would] have a window of time during which it could introduce a joint resolution.”[108] If the resolution passes, the statute in question would be amended in two ways: “[f]irst, [it] would provide clear authorization for the regulatory power the agency had claimed in the invalidated rule. Second, it would authorize additional regulatory power that is ‘substantially the same’ as the authority the reviewing court had precluded on major questions doctrine grounds.”[109] The result would be a process of governmental dialogue where the judicial system signals to the legislative branch that clarification is needed, and Congress responds in kind.

A potential challenge to this system is that there is always a possibility that a higher court overturns the ruling of the lower court, especially in the context of a lower court nullifying “an agency rule on major questions doctrine grounds. Allowing the first judicial decision to trigger the CRA-like process would no doubt incentivize litigants to engage in strategic forum-shopping in the lower courts.”[110] Still then, waiting for the Supreme Court to take part in the process could take far longer than could be reasonably expected.[111] With no simple solution to the dilemma, Walker proposes that the legislative process should be enacted once the first federal court “invoke[s]” the MQD.[112] Regardless of which federal court would trigger the process, the CRA-like window would close roughly thirty to sixty days after the opinion is issued.[113]

The process may not be perfect, and Walker makes no such claim.[114] However, the reality is that the MQD is already a part of the federal judicial system. While Walker’s proposed process “[a]dmittedly . . . would undercut—to some degree—compromise and consensus building by removing many of the procedures in the Senate that can help advance those goals,” the context in which this would happen is limited.[115] Further, Congress doing nothing is simply not an option.[116] Otherwise, there is a risk that the federal court system could engage in a wildly unchecked game of keep-away in a manner that could chill the administrative state well past what would be ideal.[117]

V. Conclusion

One could mistake the dissent in West Virginia v. Environmental Protection Agency as an apocalyptic prophecy leaving the federal government with no choice but to seal not only Springfield, but the entire United States within a dome to keep pollution from spreading.[118] But perhaps a glass-half-full perspective on the landscape would be to recognize that even though change on the Supreme Court happens slowly, it does happen. Further, changes in executive administrations happen much more rapidly. In the future, a progressive Supreme Court could surely use the doctrine as another tool in the system of checks-and-balances against a republican-headed executive agency that tries to assert too much power.

Concerns that the MQD is simply “based on Judicial Activism to hijack Congressional intent and Agency autonomy and transfer power to the Supreme Court” are premature.[119] It is incredibly unlikely that “the Supreme Court will just end the administrative state altogether.”[120] Such speculations seem to echo the near-constant panic that academia has found itself in since Trump’s presidency, which saw three conservative justices appointed. In reality, just like with any other opinion that has shaped American jurisprudence for centuries, the dust from the initial craze will settle and future conservative and progressive justices alike will learn to utilize the doctrine.

This is not to say that West Virgina v. EPA is not driven by political ideology—it probably is. Nor is it to say that the conservative majority has gotten it right most of the time. But this case in particular is certainly legally valid. For critics to adopt a “sky-is-falling” mindset gives way to a panic-induced groupthink that looks too much at the political makeup of the current Supreme Court and not enough at how all judicial figures, regardless of partisan affiliation, can utilize the MQD.

Nonetheless, for the time being, it seems that Russ Cargill might have to expand his influence[121] on other executive agencies, since Homer Simpson thwarted his plan to wipe Springfield off the face of the earth.[122] The federal court system has vigilantly defended against these efforts by utilizing its new shield. Judge Mark T. Pittman of the U.S. District Court for the Northern District of Texas utilized the MQD to strike down Biden’s student loan forgiveness program under the Higher Education Relief Opportunities for Students Act of 2003 (“HEROES”).[123] Judge Pittman noted that while it is uncertain what exactly courts mean by “vast economic significance,” Biden’s program “will cost more than $400 billion—over 100 times more than the amount in BST Holdings and 20 times more than the amount in Alabama Association of Realtors [and therefore] has vast economic significance.”[124] Accordingly, the judge concluded that “the Major Questions Doctrine [applied].”[125] Thus, with a few keystrokes, Biden’s student loan forgiveness program effectively met its demise when Pittman wrote that Congress did not grant such authority to the administrative state through the HEROES Act.[126]

Depending on who is asked, this is simply a sign of a functioning system of checks and balances.[127] It is unlikely that the student loan forgiveness plan will see the light of day any time soon.[128] But regardless of where an individual falls on the spectrum regarding whether the MQD was appropriately applied in Brown, or even whether it should have been applied at all, the time for mourning the loss of the pre-MQD era must end in favor of figuring out how to now promote judicial efficiency.

As Christopher Walker puts it, “The new major questions doctrine has arrived, and it is here to stay.”[129] Will we ever have another situation where the MQD is deployed to stop Russ Cargill after so easily influencing President Schwarzenegger?[130] Most likely not, but we can expect a government system that is susceptible to gridlock to become gridlocked. Properly applied, the test offered in this Note would allow the federal court system to signal to the sitting President that his executive agency has simply overstepped its boundaries. Then, the public would rely on the legislative branch to take the issue from there, repeating the cycle until a productive solution is found. Instead of regarding the MQD as an insurmountable challenge, it would be ideal for the federal courts to treat it as another judicial tool to be utilized in cooperation with the other branches of government.

Jayson Hatfield

  1. The Simpsons Movie (20th Century Fox Animation 2007).

  2. Id.

  3. Id.

  4. Id.

  5. Id.

  6. See generally West Virginia v. EPA, 142 S. Ct. 2587 (2022).

  7. See Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., Occupational Safety & Health Admin., 142 S. Ct. 661, 677 (2022).

  8. West Virginia, 142 S. Ct. at 2609.

  9. See Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014) (citing FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000)).

  10. Id.

  11. Daniel Hornung, Note, Agency Lawyers’ Answers to the Major Questions Doctrine, 37 Yale J. Reg. 759, 760 (2020).

  12. Id. at 764.

  13. Id. at 765 (quoting MCI Telecomms. Corp. v. AT&T, 512 U.S. 218, 231 (1994)).

  14. Id. (quoting Brown & Williamson, 529 U.S. at 133).

  15. Id.

  16. Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 333 (2014). Notably, the Court opined that “[i]t takes some cheek for EPA to insist that it cannot possibly give ‘air pollutant’ a reasonable, context-appropriate meaning in the PSD and Title V Contexts when it has been doing precisely that for decades.” Id. at 317. Such a tone could highlight the tension between the conservative majority and the federal government; a tension that arguably has existed since before the major questions doctrine, continues to exist today, and will always continue to exist.

  17. Laura Bronner & Elena Mejia, The Supreme Court’s Conservative Supermajority Is Just Beginning to Flex Its Muscles, FiveThirtyEight (July 21, 2021), https://fivethirtyeight.com/features/the-supreme-courts-conservative-supermajority-is-just-beginning-to-flex-its-muscles/ [https://perma.cc/U9FP-6YNK]; Ala. Ass’n of Realtors v. Dep’t of Health and Hum. Servs., 141 S. Ct. 2485, 2486 (2021).

  18. Ala. Ass’n of Realtors, 141 S. Ct. at 2486–87.

  19. Id. at 2487.

  20. Id.

  21. Id. at 2488, 2490.

  22. Id. at 2488.

  23. Id. at 2490 (Breyer, J., dissenting) (“[I]t is far from ‘demonstrably’ clear that the CDC lacks the power to issue its modified moratorium order.”).

  24. Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., Occupational Safety & Health Admin, 142 S. Ct. 661, 663, 665 (2022).

  25. Id. at 662.

  26. Id. There were also exceptions for employees who worked outdoors or remotely 100% of the time, however, they were extremely narrow as “[the Secretary estimated] that only nine percent of landscapers and groundskeepers qualify as working exclusively outside.” Id. at 663–64 (citing COVID-19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61402 (Nov. 5, 2021)).

  27. See id. at 664.

  28. Id.

  29. See Nat’l Fed’n Ind. Bus., 142 S. Ct. at 663.

  30. See id. at 663, 665 (quoting 29 U.S.C. § 651(b)).

  31. Id. at 663 (quoting § 655(c)(1)).

  32. Id.

  33. Id. at 665.

  34. Id. at 665–66.

  35. Id. (citing Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 505 (2010)).

  36. Id. at 666–67.

  37. See id. at 667, 669 (Gorsuch, J., concurring) (“OSHA’s mandate fails [the MQD’s] test.”).

  38. Id. at 669 (quoting Whitman v. Am. Trucking Ass’ns., Inc., 531 U.S. 457, 468 (2001)).

  39. Id. at 666 (majority opinion); id. at 667 (Gorsuch, J. concurring).

  40. West Virginia v. EPA, 142 S. Ct. 2587, 2634 (2022) (Kagan, J. dissenting).

  41. Id. at 2600 (majority opinion).

  42. Id.

  43. Id. (quoting 42 U.S.C. § 7412(d)(3)).

  44. Id. at 2601 (quoting § 7411(b)(1)(A)).

  45. Id. (quoting § 7411(a)(1)).

  46. Id. at 2602.

  47. Id.

  48. Id. at 2602–03 (quoting 80 Fed. Reg. 64530 (2015)).

  49. Id. at 2604.

  50. Id.

  51. Id.

  52. Id.

  53. Id. (quoting 84 Fed. Reg. 32523 (2019)).

  54. Id. at 2605 (quoting 84 Fed. Reg. 32529 (2019)).

  55. Id. (quoting 84 Fed. Reg. 32529 (2019)).

  56. Id.

  57. Id.

  58. Id. at 2605–06.

  59. Id. at 2606.

  60. Id.

  61. Id. at 2607, 2612 (“The case thus remains justiciable, and we may turn to the merits.”).

  62. Id. at 2616, 2620 (Gorsuch, J., concurring).

  63. Id. at 2614 (quoting Util. Air Regul. Grp v. EPA, 573 U.S. 302, 324 (2014)).

  64. Id. at 2626 (Kagan, J., dissenting) (quoting Massachusetts v. EPA, 549 U.S. 497, 505 (2007)).

  65. Id. at 2634 (“The majority claims it is just following precedent, but that is not so. The Court has never even used the term ‘major questions doctrine’ before. And in the relevant cases, the Court has done statutory construction of a familiar sort. It has looked to the text of a delegation. . . . In short, in assessing the scope of a delegation, the Court has considered—without multiple steps, triggers, or special presumptions—the fit between the power claimed, the agency claiming it, and the broader statutory design.”).

  66. Id.

  67. See id. (Kagan, J., dissenting) (“Apparently, there is now a two-step inquiry. First, a court must decide, by looking at some panoply of factors, whether agency action presents an ‘extraordinary case’ . . . If it does, the agency ‘must point to clear congressional authorization for the power it claims,’ someplace over and above the normal statutory basis we require.”); Hornung, supra note 11, at 791–92 (“The final ex ante concern with the major questions doctrine is that agency lawyers are left to guess what judges might think constitutes a major question. Speculation is necessary because the Supreme Court has not clearly defined the term, and some judges use the major questions doctrine as a means to express policy preferences, not legal ones. As discussed above, the judges of the D.C. Circuit announced widely divergent opinions on what constitutes a major question during the CPP oral argument.”).

  68. For example, the FCC attempting to prevent deforestation.

  69. Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2489 (2021) (quoting Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)).

  70. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 125, 147 (2000).

  71. See Ala. Ass’n of Realtors, 141 S. Ct. at 2487, 2489.

  72. See Nat’l Fed’n Indep. Bus. v. OSHA, 142 S. Ct. 661, 665–66 (2022).

  73. See 5 U.S.C. § 704.

  74. Here, some subjectivity will come into play. Some courts may consider a regulation that implicates the health of .001% of the population as “extraordinary,” whereas others may consider 1% or higher to be the floor. Over time, caselaw could develop and give courts guidance on how to measure this factor. Simultaneously, judges will continue to be appointed by elected representatives, which provides an incentive for the court system to reflect the views of the public; a presidential administration will be far less likely to appoint a federal judge if it loses power due to an unpopular choice.

  75. See West Virginia v. EPA, 142 S. Ct. 2587, 2610 (2022).

  76. MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 229 (1994).

  77. Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000)).

  78. West Virginia, 142 S. Ct. at 2608.

  79. Gonzales v. Oregon, 546 U.S. 243, 249 (2006); see also Or. Rev. Stat. Ann. §§ 127.800–.805 (West 2023). Notably, even under the statute, the decision to permit a patient to choose assisted suicide was not taken lightly. The statute requires that “[a]ttending physicians must also determine whether a patient has made a voluntary request, ensure a patient’s choice is informed, and refer patients to counseling if they might be suffering from a psychological disorder or depression causing impaired judgment.” Gonzales, 546 U.S. at 252. Additionally, “[a] second ‘consulting’ physician must examine the patient and the medical record and confirm the attending physician’s conclusions. Oregon physicians may dispense or issue a prescription for the requested drug, but may not administer it.” Id. (citing. §§ 127.800, 127.815(1)(L), 127.880). “The reviewing physicians must keep detailed medical records of the process leading to the final prescription . . . records that Oregon’s Department of Human Services reviews . . . .” Id. (citing § 127.855, .865). Typically, statutes of this type require that “healthcare professionals evaluate a patient’s ability to understand medical information and appreciate its significance, reason about the risks and benefits of various treatment options, and communicate a choice.” Megan S. Wright, Equality of Autonomy? Physician Aid in Dying and Supported Decision-Making, 63 Ariz. L. Rev. 157, 165 n.47, 166 (2021). This Note is not discussing the morality of such a statute; rather, this should simply be understood as background information on the process that suggests that this is not an issue that either the voters or state legislatures take lightly.

  80. Gonzales, 546 U.S. at 275. Notably, Justice Thomas, who concurred with his conservative colleagues in the recent MQD cases, dissented in Gonzales, writing that “[b]ecause the Regulation was promulgated by the Attorney General, and because the Directive purported to interpret the language of the Regulation . . . this case calls for the straightforward application of our rule that an agency’s interpretation of its own regulations is ‘controlling unless plainly erroneous or inconsistent with the regulation.’” Id. at 277 (Thomas, J., dissenting) (citation omitted); see Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., Occupational Safety & Health Admin., 142 S. Ct. 661, 667 (2022) (Thomas, J., concurring). At this time, the Attorney General was Alberto Gonzalez, who was appointed during the Bush Administration and had a multi-year history with President Bush. Alberto Gonzales: Former Attorney General, The White House, https://georgewbush-whitehouse.archives.gov/government/gonzales-bio.html [https://perma.cc/T2K2-WEAP] (last visited Aug. 17, 2022). This Note is not speculating on Justice Thomas’s motives, nor is it saying that Supreme Court Justices cannot change their minds over several years or legitimately distinguish between two cases. Rather, this Note simply highlights this to emphasize the importance of creating a framework to apply the doctrine to reduce the likelihood that it is arbitrarily applied at the whim of a political ideology.

  81. See, e.g., West Virginia, 142 S. Ct. at 2612 (“For one thing, as EPA itself admitted when requesting special funding, ‘Understand[ing] and project[ing] system-wide . . . trends in areas such as electricity transmission, distribution, and storage’ requires ‘technical and policy expertise not traditionally needed in EPA regulatory development.’” (quoting EPA, Fiscal Year 2016: Justification of Appropriation Estimates for the Committee on Appropriations 213 (2015) (emphasis added))); Nat’l Fed’n of Indep. Bus., 142 S. Ct. at 665 (“The dissent contends that OSHA’s mandate is comparable to a fire or sanitation regulation imposed by the agency . . . [b]ut a vaccine mandate is strikingly unlike the workplace regulations that OSHA has typically imposed. A vaccination, after all, ‘cannot be undone at the end of the workday.’” (quoting In re MCP No. 165, 20 F.4th 264, 274 (Sutton, C.J., dissenting)) (citation omitted)); Ala. Ass’n of Realtors v. Dep’t of Health and Hum. Servs., 141 S. Ct. 2485, 2488 (2021) (“The Government contends that the first sentence of § 361(a) gives the CDC broad authority to take whatever measures it deems necessary to control the spread of COVID-19, including issuing the moratorium. But the second sentence informs the grant of authority by illustrating the kinds of measures that could be necessary: inspection, fumigation, disinfection, sanitation, pest examination, and destruction of contaminated animals and articles. These measures directly relate to preventing the interstate spread of disease by identifying, isolating, and destroying the disease itself. The CDC’s moratorium, on the other hand, relates to interstate infection far more indirectly: If evictions occur, some subset of tenants might move from one state to another, and some subset of that group might do so while infected with COVID-19.”).

  82. West Virginia, 142 S. Ct. at 2642 (Kagan, J., dissenting) (“Why wouldn’t Congress instruct EPA to select ‘the best system of emission reduction,’ rather than try to choose that system itself? Congress knows that systems of emission reduction lie not in its own but in EPA’s ‘unique expertise.’” (quoting Martin v. Occupational Safety and Health Re. Comm’n, 499 U.S. 144, 151 (1991))); Nat’l Fed’n of Indep. Bus., 142 S. Ct. at 673 (Breyer, J., dissenting) (“Instead, the majority claims that the Act does not ‘plainly authorize[ ]’ the Standard because it gives OSHA the power to ‘set workplace safety standards’ and COVID-19 exists both inside and outside the workplace.” (quoting Nat’l Fed’n of Indep. Bus., 142 S. Ct. at 669-670)); Ala. Ass’n. of Realtors, 141 S. Ct. at 2492 (Breyer, J., dissenting) (“[I]t is undisputed that the statute permits the CDC to adopt significant measures such as quarantines, which arguably impose greater restrictions on individuals’ rights and state police powers than do limits on evictions.”).

  83. Because the following is a subset of factors within a larger factor test, none of the following considerations should be seen as disqualifying. Rather, these are meant for guidance to determine whether the agency is acting with goals of the organic statute in mind.

  84. Consolidated Appropriations Act of 2021, Pub. L. No. 116–260, § 502, 134 Stat. 1182, 2078–79 (2020).

  85. Ala. Ass’n. of Realtors, 141 S. Ct. at 2492 (Breyer, J., dissenting).

  86. Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19, 85 Fed. Reg. 55292, 55292–93 (Sep. 4, 2020).

  87. Sanford P. Shatz & Shaun Kevin Ramey, Supreme Court Strikes Down the CDC’s Second Eviction Moratorium, A.B.A (Sept. 14, 2021), https://americanbar.org/groups/business_law/resources/business-law-today/2021-september/supreme-court-strikes-down-the-cdc/ [https://perma.cc/546E-DKN7].

  88. See Ala. Ass’n. of Realtors, 141 S. Ct. at 2486, 2488.

  89. West Virginia v. EPA, 142 S. Ct. 2587, 2615 (2022).

  90. Different justices can have different perspectives on what “significant” means. However, this applies a framework for lawyers and courts to sort out what it means and create precedent moving forward within the context of a greater framework so that there is a point of reference. See, e.g, id. at 2620, 2628.

  91. Ala. Ass’n of Realtors, 141 S. Ct. at 2488.

  92. Id. at 2489–90.

  93. Id. at 2489.

  94. See, e.g., 42 C.F.R. § 70.18(a) (2022) (“Persons in violation of this part are subject to a fine of no more than $100,000 if the violation does not result in a death or one year in jail, or both, or a fine of no more than $250,000 if the violation results in a death or one year in jail, or both, or as otherwise provided by law.”).

  95. The Court will consider different agency actions within the context that agency’s purpose. For example, the Immigration and Customs Enforcement promulgating a new regulation relating to what plant products could be brought across the border would be viewed in the context of existing regulations.

  96. See, e.g., King v. Burwell, 576 U.S. 473, 498 (2015) (“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.”).

  97. 47 U.S.C. § 151.

  98. § 276(b)(2).

  99. § 157(a) (“It shall be the policy of the United States to encourage the provision of new technologies and services to the public. Any person or party (other than the Commission) who opposes a new technology or service proposed to be permitted under this Act shall have the burden to demonstrate that such proposal is inconsistent with the public interest.”).

  100. Christopher J. Walker, A Congressional Review Act for the Major Questions Doctrine, 45 Harv. J.L. & Pub. Pol’y 773, 774–75 (2022).

  101. Id. at 777.

  102. Sarah A. Binder, Going Nowhere: A Gridlocked Congress, Brookings (Dec. 1, 2000), https://brookings.edu/articles/going-nowhere-a-gridlocked-congress/ [https://perma.cc/77TH-STGZ] (“In many ways, gridlock is endemic to our national politics, the natural consequence of separated institutions sharing and competing for power. . . . Some argue that gridlock is simply a constant of American political life.”).

  103. Walker, supra note 100, at 779.

  104. Id. at 780.

  105. Id.

  106. Id.

  107. Id. at 780–81 (quoting 5 U.S.C. § 801(a)(3)(B), (b)(2)).

  108. Id. at 781.

  109. Id. But note that:

    [i]mportantly, the resolution would not codify the agency’s prior rule. Nor would it amend the agency’s governing statute in any other way. If the rule had been judicially vacated in a universal manner, the agency could reissue the rule ‘as is’ without, where applicable, the need to restart the notice-and-comment process.

    Id. at 782.

  110. Id. at 783.

  111. Id.

  112. Id.

  113. Id. at 783–84. There are other concerns that Walker discusses in his article. For example, another potential issue would be “federal courts [stylizing] their opinions to evade this fast-track legislative process.” Id. at 784. This risk could be particularly heightened by a regime of federal judges and justices that do not align with the current political climate. Id. at 783. The solution, according to Walker, is to “frame the CRA-like statute to sweep more broadly than an express citation to—or invocation of—the major questions doctrine.” Id. at 785. “Another concern is that this proposal may encourage the President and federal agencies to overclaim regulatory authority to take advantage of a filibuster-free legislative process.” Id. at 786. However, “[t]his pro-regulatory shift in behavior may just mitigate the constraining influence the Court’s new major questions doctrine no doubt already has had on administrative action.” Id. at 788.

  114. See id. at 776 (referencing the political debate that the recent Court decisions have ignited) (“Here, however, I do not wade into these doctrinal and theoretical debates. Instead, my goal is more modest and practical, focusing on how Congress can respond. I suggest that Congress could enact a Congressional Review Act (CRA) for the major questions doctrine.”). The Article seems to suggest that Walker’s primary goal is to trigger conversations of how to approach the new judicial-legislative dynamic in the wake of the new MQD. Id. at 775–76. (“This proposal would encourage Congress to decide the major policy question itself—helping to restore Congress’s legislative role in the modern administrative state—and would counteract the new major questions doctrine’s asymmetric deregulatory effects.”).

  115. Id. at 789 (“Here, the fast-track process would not extend to any major policy debate or any [sic] judicial decision constraining agency action—only to those circumstances in which a federal court has found that the agency statutory interpretation is textually plausible yet Congress has not clearly enough authorized the agency to regulate on the major question.”).

  116. See id. at 776, 788 (“The most obvious concern is whether Congress would enact this CRA-like process in the first place.”).

  117. For example, if the Court begins to simply volley too many attempts at passing ambitious regulations, administrative agencies may simply quit trying to play the game. With a conservative majority seemingly entrenched in the Supreme Court for years to come, this could lead to lead to an administrative state that does not accurately reflect the American public.

  118. See West Virginia v. EPA, 142 S. Ct. 2587, 2626–27 (2022) (Kagan, J., dissenting) (“The rise in temperatures brings with it ‘increases in heat-related deaths,’ ‘coastal inundation and erosion,’ ‘more frequent and intense hurricanes, floods, and other extreme weather events,’ ‘drought,’ ‘destruction of ecosystems,’ and ‘potentially significant disruptions of food production.’”).

  119. See Mark Glick & Darren Bush, The FTC’s Proposed Rule Banning Non-Competes Will Protect Workers: A Reply to Commissioner Wilson’s Dissent, Sling (Jan. 16, 2023), https://thesling.org/the-ftcs-proposed-rule-banning-non-competes-will-protect-workers-a-reply-to-commissioner-wilsons-dissent/ [https://perma.cc/R8NM-GXPW].

  120. Id.

  121. “I own the company that makes the dome, but that’s beside the point.” The Simpsons Movie, supra note 1 (quoting Russ Cargill addressing the trapped citizens of Springfield).

  122. See, e.g., Erin Webb, ANALYSIS: Is This the Calm Before 2023’s Major Questions Storm?, Bloomberg L. (Nov. 13, 2022), https://news.bloomberglaw.com/bloomberg-law-analysis/analysis-is-this-the-calm-before-2023s-major-questions-storm [https://perma.cc/5SEM-X4WD] (“Flashes of regulatory lightning at the SEC foretell the looming thunderclap of a major questions challenge. A forthcoming SEC regulation would require public companies to disclose the climate impacts of their businesses. Several commenters have already referenced the major questions doctrine, arguing that the disclosures go beyond the SEC’s authority,” “a federal district court recently granted a nationwide injunction against any student loan forgiveness, citing its belief that on the merits, the plaintiffs’ major questions arguments would prevail. This storm won’t let up until it reaches the high court on the merits. More appeals are sure to follow.”).

  123. Brown v. U.S. Dep’t of Educ., 640 F. Supp. 3d 644, 654, 667 (N.D. Tex. 2022), vacated, 143 S. Ct. 2323 (2023) (The Biden Administration concluded “that the HEROES Act allows the executive branch to create a loan-forgiveness program to address the financial harms of the COVID-19 pandemic.”).

  124. Id. at 664. (“An agency action is politically significant if Congress has been ‘engaged in robust debates’ over bills authorizing something like the agency’s action.”) (citing West Virginia v. EPA, 142 S. Ct. 2587, 2620–21 (2022) (Gorsuch, J., concurring)). The Author finished the proposed “political significan[ce]” prong of the test before Brown v. DOE was decided by the Northern District of Texas in November 2022. While Judge Pittman’s interpretation of “political significan[ce]” is slightly different from the Author’s, the Author recognizes Judge Pittman’s interpretation as a completely valid one. The Author does not intend to create a perfect test, merely a workable one that would provide consistency as the MQD is applied in the future. The very purpose of the test is to adapt to the various interpretations that federal judges could make of it as it settles into the judicial system through stare decisis.

  125. Id. at 665.

  126. Id. at 667. (“Thus, because the Department lacks ‘clear congressional authorization’ for the Program under the HEROES Act, the Court grants summary judgment in favor of Plaintiffs.”). Of course, the action could see new life if the higher courts disagree with the decision. However, seeing that the Fifth Circuit would hear the case, that seems unlikely.

  127. See id. at 668. (“In this country, we are not ruled by an all-powerful executive with a pen and a phone. Instead, we are ruled by a Constitution that provides for three distinct and independent branches of government.”); Ingrid Jacques, Hey Mr. President, You Can’t Rule This Country with ‘a Pen and a Phone,’ USA Today (Nov. 18, 2022), https://usatoday.com/story/opinion/columnist/2022/11/18/biden-student-loan-forgiveness-plan-sinking-federal-courts/10713506002/ [https://perma.cc/MN37-NP4V] (“The president’s excuse that cancellation is necessary because we’re still in a state of national emergency is hanging on the thin thread that he refuses to end the emergency–which he could do at any time. (Remember, he said in September the pandemic was ‘over.’)”).

  128. See Glick & Bush, supra note 119.

  129. See Walker, supra note 100, at 793.

  130. The Simpsons Movie, supra note 1 (Russ Cargill: “I’ve narrowed your choices down to five unthinkable options. Each will cause untold misery . . . .” Arnold Schwarzenegger: “I pick number three.” Russ Cargill: “You don’t wanna read them first?” Schwarzenegger: “I was elected to lead, not to read. Number three!”).