One of the key functions of the Supreme Court is to determine the scope of authority that Congress, through legislation, has granted to the agencies of the Executive Branch. This is necessary because, under the Constitution’s separation of powers, only Congress can make a law—that is, place binding restrictions on the public. Congress can authorize executive bodies such as administrative agencies to carry out congressional policies expressed in laws, but if an agency expands its authority beyond what Congress has authorized it is legislating—i.e., making a law itself—and thus breaching the constitutional separation of powers.

Clearly, the Court has a difficult task. Congressional enactments are often general in nature and subject to many interpretations. At the same time, agencies that have received authority from Congress are likely to overreach, making demands on the public that Congress had not directly approved.

A recent example is the Environmental Protection Agency’s effort to limit greenhouse gases, a problem Congress gave the agency the authority to address. However, the EPA did this by essentially requiring coal-burning power companies to close down their operations over time. In 2022, in West Va. v. EPA, the Court struck down this rule because it went further in the Court’s view than anything Congress had approved.

In its West. Va. decision, the Court invoked a new rule—called the Major Questions Doctrine (or MQD)—for dealing with cases where agencies have exceeded their authority from Congress, and constitutional lawyers have been wondering whether the Court intends to use this new doctrine to supplant the so-called Chevron doctrine which had been in effect since 1984. In Chevron, the Court held that when lower US courts were considering challenges to agencies’ interpretations of their statutory authority, the lower courts should defer to an agency’s interpretation of a statute if that interpretation is “reasonable.”

Many observers have noticed that, since the advent of Chevron, the lower federal courts in particular have been reluctant to overturn the positions of administrative agencies on the scope of their statutory authority. For one thing, the agencies were more expert than the lower courts on what their statutory authority provides. In addition, how agencies described the rule that was under challenge often seemed “reasonable” to lower courts, which were not familiar with the details of the legislative history or the agency’s past activities. Indeed, Chevron was widely described as “Chevron deference” because the courts were expected to defer to an agency’s interpretation of its statutory authority. In effect, of course, this put a thumb on the scale in favor of an agency’s view and thus led to substantial growth in the power of administrative agencies generally.

Nevertheless, the Administrative Procedure Act, enacted by Congress in 1946, says clearly that the courts—and not the agency—are to decide the meaning of the law under which the agency is acting, and that means a court must decide what Congress meant by the language of the agency’s legal authority as prescribed by Congress—and not whether the agency’s position on the meaning of the statute is “reasonable.” In addition, by 2022, it probably seemed clear to the members of the Supreme Court that, over time, Chevron deference was allowing much more latitude for agencies’ actions than the separation of powers would permit. The MQD in the West Va. case was the likely result.

That was the Court’s disposition when President Biden’s decision on forgiveness of student debt finally reached the Court in 2023 in Biden v. Nebraska. Although the decision was made by President Biden, it was implemented by the Department of Education, which had authority under an existing statute—the Higher Education Relief Opportunities for Students Act (the “HEROES Act”)—to provide debt relief to students who incurred military or other obligations as a result of the September 11 attacks. That authority was then extended to the Covid emergency. Under the Act, the Secretary of Education could “waive” or “modify” the Act’s requirements in connection with “a war or other military operation or national emergency.”

When the case was analyzed by the Supreme Court, however, it became clear that the wholesale cancellation of student debt of about $430 billion was not authorized by the Act. It seemed obvious to a majority of the Justices that while the Covid emergency could qualify under that statutory language, what was missing was the blanket authority to cancel the debt of so many borrowers who could not be shown to have suffered individually because of Covid. The statute’s words “waive” or “modify” were just not able—in the view of six Justices—to carry the weight of wholesale debt forgiveness of $430 billion.

Thus, the majority opinion noted:

The Secretary’s comprehensive debt cancellation plan cannot fairly be called a waiver—it not only nullifies existing provisions, but augments and expands them dramatically. It cannot be mere modification, because it constitutes “effectively the introduction of a whole new regime” … and it cannot be some combination of the two, because when the Secretary seeks to add to existing law, the fact that he has “waived” certain provisions does not give him a free pass to avoid the limits inherent in the power to “modify.” However broad the meaning of “waive or modify” that language cannot authorize the kind of exhaustive rewriting of the statute that has taken place here.

What is interesting about this case is that while it was not necessary or relevant to invoke the MQD—the majority could not find anything in the Education Department’s decision that involved a “major question”—it ultimately throws light on what a major question isn’t. It isn’t applicable where the language of the statute is adequate to cover the issue, even where there is dispute among the justices about what the statutory language actually means. 

Nor is the MQD a reformulation of Chevron. Chevron was applicable in cases of ambiguity, where it was not clear whether statutory language gave the agency the authority to act as it has proposed. Here there was a difference between the majority and the dissenters on the Court about whether the statutory language—which allowed the Secretary to “modify” or “waive” elements of the act—gave the Secretary of Education the authority to forgive, wholesale, $430 billion of student debt.

Here is Justice Kagan’s formulation of what the statutory language permitted: [the Secretary could] “waive or modify any statutory or regulatory provision applying to federal student-loan programs, including provisions relating to loan repayment and forgiveness. And in so doing, he could replace the old provisions with new ‘terms and conditions.’”

This is a far different description of the Secretary’s authority than what the Court majority found in the language. Under Chevron, as originally devised in 1984, ambiguities in statutory language would be resolved in favor of the agency if the agency’s interpretation was “reasonable.” That, after all, was “Chevron deference.” Under the MQD, however, there is no deference to the agency’s view. Instead, the Court has the option to accept the agency’s interpretation or to decide—as it did in West Va. v. EPA—that the agency was not given the authority it asserts. That, indeed, is the “major question.”

The Court has now agreed in its next term to hear a case, Loper Bright Enterprises v. Raimondo, that directly raises the question of whether Chevron deference has any future applicability. If, as many expect, the Supreme Court limits or eliminates Chevron’s applicability, it will mark the end of an era where the expansion of administrative power was assisted by the policies of the Supreme Court.