CHAPTER FOUR
Judicial Review of Agency Action
C. Judicial Review of Legal Questions
In addition to making factual findings and policy choices, agencies also have to
interpret their governing statutes. This is something they do every day. To administer the
law, they have to know what the law requires of them. The APA provides that when courts
review agency actions, the courts “shall decide all relevant questions of law, interpret
constitutional and statutory provisions, and determine the meaning or applicability of the
terms of an agency action.” 5 U.S.C. § 706. What, however, is a court to do when a statute
is very much ambiguous? When it leaves a gap? Until very recently, the modern doctrine
was articulated in the 1984 case Chevron v. Natural Resources Defense Council, which
maintained that courts should defer to an agency’s reasonable interpretation of a statute
that it administered—even if it was not the best reading that a court would have reached.
The Supreme Court recently overturned that case in Loper Bright Enterprises v. Raimondo,
in which the Court held that the text of APA § 706 does not authorize such interpretive
deference to agencies.
The Court’s decision in Loper Bright marks a sea-change in administrative law.
Although the Supreme Court itself rarely applied the deferential standard that Chevron
seemingly required, the lower courts deferred to agencies frequently. Such deference was
not without its critics, however, even on policy grounds: it allowed agencies to flip flop on
important regulations every time a new administration came to power, and it also allowed
those agencies to engage in adventurous interpretations of their statutes. Still, many
statutes involve technical terms in complex areas of administration, and one wonders
whether judges have more expertise to interpret such terms than do agencies. And many
statutes seem to leave gaps, which may not be the same thing as interpretive ambiguities.
Consider all of these issues and questions as you read the materials in this section.
A few years before overturning Chevron, the Court also formalized what it described
as the “major questions doctrine.” According to this doctrine, Congress must use a “clear
statement”—it must speak exceptionally clearly—if it wants to delegate to an agency
authority over an issue of major economic and political significance. The upshot of these
developments is that administrative law looks a lot different than it did forty years ago.
1
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
The Court went from deferring to agencies when their statutes are ambiguous, to a
regime in which courts not only give no deference, but also demand exceptional clarity in
many cases. In other words, had the Court simply overturned Chevron, then courts would
have given statutes their best readings, even if the statutes were otherwise ambiguous.
That would have gone a long way to assuaging the majority’s concerns over adventurous
agency interpretations of their statutes. But the courts now will be demanding more than
just a “best reading,” they will often be demanding a clear statement from Congress.
The section begins with matters of fundamentals and framing and presents three
cases on deference and some related academic literature. It then presents a series of
cases in which the Supreme Court has had to interpret the text, structure, and purpose of
administrative statutes, through which the student will encounter many new tools of
statutory interpretation. It thirdly discusses the Supreme Court’s “major questions
doctrine,” and addresses whether that doctrine is best understood as a linguistic canon of
interpretation or as a substantive canon about the nondelegation doctrine. It concludes
with a case study on Net Neutrality, which remains a hot-button regulatory question
today. The case presented was decided under the Chevron framework. The case will raise
several questions, including how it would be decided today, whether it involves a major
question, and how the Court’s dictum in Loper Bright about “statutory stare decisis”
applies to cases decided when Chevron prevailed.
1.
From Skidmore to Chevron and back
Even before Chevron courts dealt with how much deference to give agency legal
interpretations. The following is a leading case that deployed an alternative approach,
which may apply today with renewed vigor after the Supreme Court’s Loper Bright
decision.
Skidmore v. Swift & Co.
323 U.S. 134 (1944)
MR. JUSTICE JACKSON delivered the opinion of the Court.
Seven employees of the Swift and Company packing plant at Fort Worth, Texas,
brought an action under the Fair Labor Standards Act to recover overtime . . . .
It is not denied that the daytime employment of these persons was working time
within the Act. Two were engaged in general fire hall duties and maintenance of fire2
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
fighting equipment of the Swift plant. The others operated elevators or acted as relief
men in fire duties. They worked from 7:00 a.m. to 3:30 p.m., with a half-hour lunch
period, five days a week. They were paid weekly salaries.
Under their oral agreement of employment, however, petitioners undertook to stay
in the fire hall on the Company premises, or within hailing distance, three and a half to
four nights a week. This involved no task except to answer alarms, either because of fire
or because the sprinkler was set off for some other reason. No fires occurred during the
period in issue, the alarms were rare, and the time required for their answer rarely
exceeded an hour. For each alarm answered the employees were paid in addition to their
fixed compensation an agreed amount, fifty cents at first, and later sixty-four cents. The
Company provided a brick fire hall equipped with steam heat and air-conditioned rooms.
It provided sleeping quarters, a pool table, a domino table, and a radio. The men used
their time in sleep or amusement as they saw fit, except that they were required to stay in
or close by the fire hall and be ready to respond to alarms. It is stipulated that ‘they
agreed to remain in the fire hall and stay in it or within hailing distance, subject to call, in
event of fire or other casualty, but were not required to perform any specific tasks during
these periods of time, except in answering alarms.’ The trial court found the evidentiary
facts as stipulated; it made no findings of fact as such as to whether under the
arrangement of the parties and the circumstances of this case, . . . the fire hall duty or any
part thereof constituted working time. It said, however, as a ‘conclusion of law’ that ‘the
time plaintiffs spent in the fire hall subject to call to answer fire alarms does not constitute
hours worked, for which overtime compensation is due them under the Fair Labor
Standards Act, as interpreted by the Administrator and the Courts,’ and in its opinion
observed, ‘of course we know pursuing such pleasurable occupations or performing such
personal chores does not constitute work.’ The Circuit Court of Appeals affirmed.
. . . [W]e hold that no principle of law found either in the statute or in Court decisions
precludes waiting time from also being working time. We have not attempted to, and we
cannot, lay down a legal formula to resolve cases so varied in their facts as are the many
situations in which employment involves waiting time. Whether in a concrete case such
time falls within or without the Act is a question of fact to be resolved by appropriate
findings of the trial court. This involves scrutiny and construction of the agreements
between the particular parties, appraisal of their practical construction of the working
agreement by conduct, consideration of the nature of the service, and its relation to the
waiting time, and all of the surrounding circumstances. Facts may show that the employee
was engaged to wait, or they may show that he waited to be engaged. His compensation
may cover both waiting and task, or only performance of the task itself. Living quarters
may in some situations be furnished as a facility of the task and in another as a part of its
3
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
compensation. The law does not impose an arrangement upon the parties. It imposes
upon the courts the task of finding what the arrangement was.
We do not minimize the difficulty of such an inquiry where the arrangements of the
parties have not contemplated the problem posed by the statute. But it does not differ in
nature or in the standards to guide judgment from that which frequently confronts courts
where they must find retrospectively the effect of contracts as to matters which the
parties failed to anticipate or explicitly to provide for.
Congress did not utilize the services of an administrative agency to find facts and to
determine in the first instance whether particular cases fall within or without the Act.
Instead, it put this responsibility on the courts. But it did create the office of
Administrator, impose upon him a variety of duties, endow him with powers to inform
himself of conditions in industries and employments subject to the Act, and put on him
the duties of bringing injunction actions to restrain violations. Pursuit of his duties has
accumulated a considerable experience in the problems of ascertaining working time in
employments involving periods of inactivity and a knowledge of the customs prevailing in
reference to their solution. From these he is obliged to reach conclusions as to conduct
without the law, so that he should seek injunctions to stop it, and that within the law, so
that he has no call to interfere. He has set forth his views of the application of the Act
under different circumstances in an interpretative bulletin and in informal rulings. They
provide a practical guide to employers and employees as to how the office representing
the public interest in its enforcement will seek to apply it. Wage and Hour Division,
Interpretative Bulletin No. 13.
The Administrator thinks the problems presented by inactive duty require a flexible
solution, rather than the all-in or all-out rules respectively urged by the parties in this
case, and his Bulletin endeavors to suggest standards and examples to guide in particular
situations. In some occupations, it says, periods of inactivity are not properly counted as
working time even though the employee is subject to call. Examples are an operator of a
small telephone exchange where the switchboard is in her home and she ordinarily gets
several hours of uninterrupted sleep each night; or a pumper of a stripper well or
watchman of a lumber camp during the off season, who may be on duty twenty-four
hours a day but ordinarily ‘has a normal night’s sleep, has ample time in which to eat his
meals, and has a certain amount of time for relaxation and entirely private pursuits.’
Exclusion of all such hours the Administrator thinks may be justified. In general, the
answer depends ‘upon the degree to which the employee is free to engage in personal
activities during periods of idleness when he is subject to call and the number of
consecutive hours that the employee is subject to call without being required to perform
4
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
active work.’ ‘Hours worked are not limited to the time spent in active labor but include
time given by the employee to the employer. * * *’
The facts of this case do not fall within any of the specific examples given, but the
conclusion of the Administrator, as expressed in the brief amicus curiae, is that the
general tests which he has suggested point to the exclusion of sleeping and eating time of
these employees from the work-week and the inclusion of all other on-call time: although
the employees were required to remain on the premises during the entire time, the
evidence shows that they were very rarely interrupted in their normal sleeping and eating
time, and these are pursuits of a purely private nature which would presumably occupy
the employees’ time whether they were on duty or not and which apparently could be
pursued adequately and comfortably in the required circumstances; the rest of the time is
different because there is nothing in the record to suggest that, even though pleasurably
spent, it was spent in the ways the men would have chosen had they been free to do so.
There is no statutory provision as to what, if any, deference courts should pay to the
Administrator’s conclusions. And, while we have given them notice, we have had no
occasion to try to prescribe their influence. The rulings of this Administrator are not
reached as a result of hearing adversary proceedings in which he finds facts from evidence
and reaches conclusions of law from findings of fact. They are not, of course, conclusive,
even in the cases with which they directly deal, much less in those to which they apply
only by analogy. They do not constitute an interpretation of the Act or a standard for
judging factual situations which binds a district court’s processes, as an authoritative
pronouncement of a higher court might do. But the Administrator’s policies are made in
pursuance of official duty, based upon more specialized experience and broader
investigations and information than is likely to come to a judge in a particular case. They
do determine the policy which will guide applications for enforcement by injunction on
behalf of the Government. . . . The fact that the Administrator’s policies and standards are
not reached by trial in adversary form does not mean that they are not entitled to respect.
This Court has long given considerable and in some cases decisive weight to Treasury
Decisions and to interpretative regulations of the Treasury and of other bodies that were
not of adversary origin.
We consider that the rulings, interpretations and opinions of the Administrator under
this Act, while not controlling upon the courts by reason of their authority, do constitute a
body of experience and informed judgment to which courts and litigants may properly
resort for guidance. The weight of such a judgment in a particular case will depend upon
the thoroughness evident in its consideration, the validity of its reasoning, its consistency
5
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
with earlier and later pronouncements, and all those factors which give it power to
persuade, if lacking power to control. . . .
. . . [I]n this case, although the District Court referred to the Administrator’s Bulletin,
its evaluation and inquiry were apparently restricted by its notion that waiting time may
not be work, an understanding of the law which we hold to be erroneous. Accordingly, the
judgment is reversed and the cause remanded for further proceedings consistent
herewith.
NOTES AND QUESTIONS
1. How much deference is this? Skidmore stands for the proposition that a
reviewing court should give an agency’s legal interpretation of its governing statute
“respect,” and while such interpretations are not “controlling,” they “constitute a body of
experience and informed judgment to which courts and litigants may properly resort for
guidance.” The weight given such judgments depends “upon the thoroughness evident in
its consideration, the validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to persuade, if lacking power
to control.” The theory behind such “deference” or “weight” or “respect” is that by virtue
of developing expertise in administering a particular statute, an agency may have
important insights into the meaning of the statute. How much “deference” is this? Is the
ultimate interpretive power with the courts? Is Skidmore deference a “thumb on the
scales” in favor of the agency, or something more? Is an agency pronouncement under
Skidmore entitled to more respect than a persuasive litigant’s brief?
2. Cases prior to Skidmore. Although Skidmore is by far the most famous of the
early deference cases, the Supreme Court confronted the question of deference in other
prominent cases. In NLRB v. Hearst Publications, 322 U.S. 111 (1944), the Court dealt with
the National Labor Relations Board’s interpretation of the term “employee” in the
National Labor Relations Act. Hearst Publications argued that newsboys were not
employees because at common law they would be considered independent contractors.
The Court first held—as a pure matter of statutory construction—that the term
“employee” in the Act does not necessarily incorporate the common-law distinction
between employee and independent contractor. The Court then held, “Undoubtedly
questions of statutory interpretation, especially when arising in the first instance in
judicial proceedings, are for the courts to resolve, giving appropriate weight to the
judgment of those whose special duty is to administer the questioned statute.” Id. at 130–
31. The Court went on to say, however, that “where the question is one of specific
6
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
application of a broad statutory term in a proceeding in which the agency administering
the statute must determine it initially, the reviewing court’s function is limited.” Id. at 131
(emphasis added).
Is the Court here distinguishing between two situations—those involving ordinary
statutory interpretation, and those involving “broad statutory terms,” perhaps like
“reasonable,” “practicable,” and “in the public interest”? Is the word “employee” a broad
statutory term? Is the word “work”? What about the word “family”? Note that these
words include a set of mandated or required applications; “family,” at a minimum, means
“nuclear” family. These words also include a set of excluded applications; “family,” no
matter how one cuts it, does not include individuals with no genetic or marriage ties. But
if the statute does not say anything else, what is the agency to do with in-laws? With first
cousins? Assuming the statute provides no further guidance, within the space between
those applications that are mandated and those that are prohibited, is it not a policy
question whether to include first cousins or in-laws? And if it’s a policy question and not
truly an interpretive one, doesn’t deference to agency judgments make sense? Is that
what happened in Hearst? See Peter L. Strauss, “Deference” Is Too Confusing—Let’s Call
Them “Chevron Space” and “Skidmore Weight,” 112 Colum. L. Rev. 1143 (2012).
In Gray v. Powell, 314 U.S. 402 (1941), the Bituminous Coal Act of 1937 exempted
from its requirements a “producer-consumer,” i.e. those who produced and consumed
their own coal. The question was whether a railroad company which had leased lands and
mining equipment and contracted with an operator to mine the land’s coal exclusively for
the railroad’s use counted as such a “producer-consumer.” The agency concluded that the
railroad was a consumer of coal, but not a producer. The Court observed that there were
clear examples of separation and clear examples of unity between producers and
consumers: “The separation of production and consumption is complete when a buyer
obtains supplies from a seller totally free from buyer connection. Their identity is
undoubted when the consumer extracts coal from its own land with its own employees.”
Id. at 413. “Between the two extremes,” however, “are the innumerable variations that
bring the arrangements closer to one pole or the other of the range between exemption
and inclusion. To determine upon which side of the median line the particular instance
falls calls for the expert experienced judgment of those familiar with the industry.” Id. Is
this another example of a court deciding for itself what is mandated by the statutory term
and what is prohibited, leaving everything between the two for the agency to decide? Was
the question of whether a certain factual arrangement made the railroad a consumer
merely, or rather a producer-consumer, a factual question? Was it a policy question? A
legal question? Does it matter?
7
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
How do you distinguish Hearst, Gray, and Skidmore from Packard Motor Car Co. v.
NLRB, 330 U.S. 485 (1947)? In that case, the Court evaluated the NLRB’s conclusion that
foremen were “employees” as opposed to “employers” under the National Labor
Relations Act such that they could engage in collective bargaining. The Court had to
interpret the same term—“employees”—as the Court did in Hearst, and yet the Court did
not give any deference to the NLRB’s interpretation. In fact, it did not even address the
question of how much deference an agency receives on such matters. Is the distinction
between employer and employee more amenable to judicial resolution than is the
distinction between employee and independent contractor? Or was the Court just being
inconsistent?
3. Judicial inconsistency. As the discussion of Packard Motor Car Co. might suggest,
the Supreme Court’s approach to deference seems to have varied considerably through
1983. Sometimes the Court deferred to an agency’s construction of its statute, see, e.g.,
Bonanno Linen Service v. NLRB, 454 U.S. 404 (1982); INS v. Wang, 450 U.S. 139 (1981);
Ford Motor Co. v. NLRB, 441 U.S. 488 (1979), and at other times the Court independently
construed the statute, see, e.g., Dirks v. SEC, 463 U.S. 646 (1983); NLRB v. Bell Aerospace
Co. Div. of Textron, Inc., 416 U.S. 267 (1974). That all changed, at least for forty years, with
the following opinion.
Chevron USA, Inc. v. Natural Resources
Defense Council, Inc.
467 U.S. 837 (1984)
JUSTICE STEVENS delivered the opinion of the Court.
In the Clean Air Act Amendments of 1977, Congress enacted certain requirements
applicable to States that had not achieved the national air quality standards established by
the Environmental Protection Agency (EPA) pursuant to earlier legislation. The amended
Clean Air Act required these “nonattainment” States to establish a permit program
regulating “new or modified major stationary sources” of air pollution. Generally, a permit
may not be issued for a new or modified major stationary source unless several stringent
conditions are met. The EPA regulation promulgated to implement this permit
requirement allows a State to adopt a plantwide definition of the term “stationary
source.” Under this definition, an existing plant that contains several pollution-emitting
devices may install or modify one piece of equipment without meeting the permit
conditions if the alteration will not increase the total emissions from the plant. The
8
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
question presented by these cases is whether EPA’s decision to allow States to treat all of
the pollution-emitting devices within the same industrial grouping as though they were
encased within a single “bubble” is based on a reasonable construction of the statutory
term “stationary source.”
I
The EPA regulations containing the plantwide definition of the term stationary source
were promulgated on October 14, 1981. . . . The Court of Appeals set aside the
regulations. Natural Resources Defense Council, Inc. v. Gorsuch, 685 F.2d 718 (D.C. Cir.
1982).
The court observed that the relevant part of the amended Clean Air Act “does not
explicitly define what Congress envisioned as a ‘stationary source, to which the permit
program . . . should apply,” and further stated that the precise issue was not “squarely
addressed in the legislative history.” In light of its conclusion that the legislative history
bearing on the question was “at best contradictory,” it reasoned that “the purposes of the
nonattainment program should guide our decision here.” Based on two of its precedents
concerning the applicability of the bubble concept to certain Clean Air Act programs, the
court stated that the bubble concept was “mandatory” in programs designed merely to
maintain existing air quality, but held that it was “inappropriate” in programs enacted to
improve air quality. Since the purpose of the permit program—its “raison d’être,” in the
court’s view—was to improve air quality, the court held that the bubble concept was
inapplicable in these cases under its prior precedents. It therefore set aside the
regulations embodying the bubble concept as contrary to law. We granted certiorari to
review that judgment, and we now reverse.
The basic legal error of the Court of Appeals was to adopt a static judicial definition
of the term “stationary source” when it had decided that Congress itself had not
commanded that definition. . . .
II
When a court reviews an agency’s construction of the statute which it administers, it
is confronted with two questions. 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.91
9 The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are
contrary to clear congressional intent. [Numerous citations omitted.—Ed.] If a court, employing traditional tools of statutory
9
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
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, as
would be necessary in the absence of an administrative interpretation. 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.11211
“The power of an administrative agency to administer a congressionally created . . .
program necessarily requires the formulation of policy and the making of rules to fill any
gap left, implicitly or explicitly, by Congress.” Morton v. Ruiz, 415 U.S. 199, 231 (1974). If
Congress has explicitly left a gap for the agency to fill, there is an express delegation of
authority to the agency to elucidate a specific provision of the statute by regulation. Such
legislative regulations are given controlling weight unless they are arbitrary, capricious, or
manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a
particular question is implicit rather than explicit. In such a case, a court may not
substitute its own construction of a statutory provision for a reasonable interpretation
made by the administrator of an agency.
We have long recognized that considerable weight should be accorded to an
executive department’s construction of a statutory scheme it is entrusted to administer,
and the principle of deference to administrative interpretations
has been consistently followed by this Court whenever decision as to the
meaning or reach of a statute has involved reconciling conflicting policies, and a
full understanding of the force of the statutory policy in the given situation has
depended upon more than ordinary knowledge respecting the matters
subjected to agency regulations.
. . . If this choice represents a reasonable accommodation of conflicting policies
that were committed to the agency’s care by the statute, we should not disturb
it unless it appears from the statute or its legislative history that the
accommodation is not one that Congress would have sanctioned.
In light of these well-settled principles it is clear that the Court of Appeals
misconceived the nature of its role in reviewing the regulations at issue. Once it
determined, after its own examination of the legislation, that Congress did not actually
construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given
effect.
11 The court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the
construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding. [Citations
omitted.—Ed.]
10
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
have an intent regarding the applicability of the bubble concept to the permit program,
the question before it was not whether in its view the concept is “inappropriate” in the
general context of a program designed to improve air quality, but whether the
Administrator’s view that it is appropriate in the context of this particular program is a
reasonable one. Based on the examination of the legislation and its history which follows,
we agree with the Court of Appeals that Congress did not have a specific intention on the
applicability of the bubble concept in these cases, and conclude that the EPA’s use of that
concept here is a reasonable policy choice for the agency to make.
III
In the 1950’s and the 1960’s Congress enacted a series of statutes designed to
encourage and to assist the States in curtailing air pollution. . . . Section 109 of the 1970
Amendments directed the EPA to promulgate National Ambient Air Quality Standards
(NAAQS’s) and § 110 directed the States to develop plans (SIP’s) to implement the
standards within specified deadlines. In addition, § 111 provided that major new sources
of pollution would be required to conform to technology-based performance standards;
the EPA was directed to publish a list of categories of sources of pollution and to establish
new source performance standards (NSPS) for each. Section 111(e) prohibited the
operation of any new source in violation of a performance standard.
Section 111(a) defined the terms that are to be used in setting and enforcing
standards of performance for new stationary sources. It provided: “For purposes of this
section: . . . . (3) The term ‘stationary source’ means any building, structure, facility, or
installation which emits or may emit any air pollutant.” . . .
IV
The Clean Air Act Amendments of 1977 are a lengthy, detailed, technical, complex,
and comprehensive response to a major social issue. A small portion of the statute . . .
expressly deals with nonattainment areas. . . .
Most significantly for our purposes, the statute provided that each [state
implementation] plan shall “(6) require permits for the construction and operation of new
or modified major stationary sources in accordance with section 173. . . .”
The 1977 Amendments contain no specific reference to the “bubble concept.” . . .
[The statute] defines the term “major stationary source” as . . . any stationary facility or
source of air pollutants which directly emits, or has the potential to emit, one hundred
tons per year or more of any air pollutant . . . .
V
11
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
The legislative history of the portion of the 1977 Amendments dealing with
nonattainment areas does not contain any specific comment on the “bubble concept” or
the question whether a plantwide definition of a stationary source is permissible under
the permit program. It does, however, plainly disclose that in the permit program
Congress sought to accommodate the conflict between the economic interest in
permitting capital improvements to continue and the environmental interest in improving
air quality. . . .
VI
. . . [P]rior to the 1977 Amendments, the EPA had adhered to a plantwide definition
of the term “source” under a NSPS program. After adoption of the 1977 Amendments,
proposals for a plantwide definition were considered in at least three formal
proceedings. . . .
***
In August 1980 . . . the EPA adopted a regulation that, in essence, applied the basic
reasoning of the Court of Appeals in these cases. The EPA took particular note of the two
then-recent Court of Appeals decisions, which had created the bright-line rule that the
“bubble concept” should be employed in a program designed to maintain air quality but
not in one designed to enhance air quality. Relying heavily on those cases, EPA adopted a
dual definition of “source” for nonattainment areas that required a permit whenever a
change in either the entire plant, or one of its components, would result in a significant
increase in emissions even if the increase was completely offset by reductions elsewhere
in the plant. The EPA expressed the opinion that this interpretation was “more consistent
with congressional intent” than the plantwide definition because it “would bring in more
sources or modifications for review,” but its primary legal analysis was predicated on the
two Court of Appeals decisions.
In 1981 a new administration took office and initiated a “Government-wide
reexamination of regulatory burdens and complexities.” 46 Fed. Reg. 16281. In the
context of that review, the EPA reevaluated the various arguments that had been
advanced in connection with the proper definition of the term “source” and concluded
that the term should be given the same definition in both nonattainment areas and PSD
[preventing significant deterioration] areas.
In explaining its conclusion, the EPA first noted that the definitional issue was not
squarely addressed in either the statute or its legislative history and therefore that the
issue involved an agency “judgment as how to best carry out the Act.” It then set forth
several reasons for concluding that the plantwide definition was more appropriate. It
12
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
pointed out that the dual definition “can act as a disincentive to new investment and
modernization by discouraging modifications to existing facilities” and “can actually retard
progress in air pollution control by discouraging replacement of older, dirtier processes or
pieces of equipment with new, cleaner ones.” Moreover, the new definition “would
simplify EPA’s rules by using the same definition of ‘source’ for PSD, nonattainment new
source review and the construction moratorium. This reduces confusion and
inconsistency.” Finally, the agency explained that additional requirements that remained
in place would accomplish the fundamental purposes of achieving attainment with
NAAQS’s as expeditiously as possible. These conclusions were expressed in a proposed
rulemaking in August 1981 that was formally promulgated in October.
VII
In this Court [the NRDC et al.] . . . contend that the text of the Act requires the EPA to
use a dual definition—if either a component of a plant, or the plant as a whole, emits over
100 tons of pollutant, it is a major stationary source. . . .
The definition of the term “stationary source” in § 111(a)(3) refers to “any building,
structure, facility, or installation” which emits air pollution. . . .
[U]se of the words “building, structure, facility, or installation,” as the definition of
source, could be read to impose the permit conditions on an individual building that is a
part of a plant. . . . The language may reasonably be interpreted to impose the
requirement on any discrete, but integrated, operation which pollutes. This gives meaning
to all of the terms—a single building, not part of a larger operation, would be covered if it
emits more than 100 tons of pollution, as would any facility, structure, or installation. . . .
Our review of the EPA’s varying interpretations of the word “source” . . . convinces us
that the agency primarily responsible for administering this important legislation has
consistently interpreted it flexibly—not in a sterile textual vacuum, but in the context of
implementing policy decisions in a technical and complex arena. The fact that the agency
has from time to time changed its interpretation of the term “source” does not, as [NRDC
et al.] argue, lead us to conclude that no deference should be accorded the agency’s
interpretation of the statute. An initial agency interpretation is not instantly carved in
stone. On the contrary, the agency, to engage in informed rulemaking, must consider
varying interpretations and the wisdom of its policy on a continuing basis. Moreover, the
fact that the agency has adopted different definitions in different contexts adds force to
the argument that the definition itself is flexible, particularly since Congress has never
indicated any disapproval of a flexible reading of the statute.
13
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
Significantly, it was not the agency in 1980, but rather the Court of Appeals that read
the statute inflexibly to command a plantwide definition for programs designed to
maintain clean air and to forbid such a definition for programs designed to improve air
quality. The distinction the court drew may well be a sensible one, but our labored review
of the problem has surely disclosed that it is not a distinction that Congress ever
articulated itself, or one that the EPA found in the statute before the courts began to
review the legislative work product. . . .
In these cases, the Administrator’s interpretation represents a reasonable
accommodation of manifestly competing interests and is entitled to deference: the
regulatory scheme is technical and complex, the agency considered the matter in a
detailed and reasoned fashion, and the decision involves reconciling conflicting policies.
Congress intended to accommodate both interests, but did not do so itself on the level of
specificity presented by these cases. Perhaps that body consciously desired the
Administrator to strike the balance at this level, thinking that those with great expertise
and charged with responsibility for administering the provision would be in a better
position to do so; perhaps it simply did not consider the question at this level; and
perhaps Congress was unable to forge a coalition on either side of the question, and those
on each side decided to take their chances with the scheme devised by the agency. For
judicial purposes, it matters not which of these things occurred.
Judges are not experts in the field, and are not part of either political branch of the
Government. Courts must, in some cases, reconcile competing political interests, but not
on the basis of the judges’ personal policy preferences. In contrast, an agency to which
Congress has delegated policy-making responsibilities may, within the limits of that
delegation, properly rely upon the incumbent administration’s views of wise policy to
inform its judgments. While agencies are not directly accountable to the people, the Chief
Executive is, and it is entirely appropriate for this political branch of the Government to
make such policy choices—resolving the competing interests which Congress itself either
inadvertently did not resolve, or intentionally left to be resolved by the agency charged
with the administration of the statute in light of everyday realities.
When a challenge to an agency construction of a statutory provision, fairly
conceptualized, really centers on the wisdom of the agency’s policy, . . . the challenge
must fail. In such a case, federal judges—who have no constituency—have a duty to
respect legitimate policy choices made by those who do. The responsibilities for assessing
the wisdom of such policy choices and resolving the struggle between competing views of
the public interest are not judicial ones . . . .
14
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
We hold that the EPA’s definition of the term “source” is a permissible construction
of the statute which seeks to accommodate progress in reducing air pollution with
economic growth. . . .
NOTES AND QUESTIONS
1. Summary. Chevron’s two-step formulation was once canonical: “When a court
reviews an agency’s construction of the statute which it administers, it is confronted with
two questions. 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
If you are representing
effect to the unambiguously expressed intent
an agency, it is in your interest to make
the standard of review as deferential as
of Congress. If, however, the court determines
possible. If you are challenging an
Congress has not directly addressed the
agency, you will want to convince the
courts not to be excessively deferential
precise question at issue, the court does not
to the agency.
simply impose its own construction on the
statute, as would be necessary in the absence
of an administrative interpretation. 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.” In “step one” of the Chevron analysis,
in other words, the court would determine if the statute was clear about the question at
hand—does it clearly preclude the agency’s choice, or perhaps require it? If the statute
was not clear on the matter—usually it was said if the statute was “ambiguous”—then
courts would defer to an agency’s reasonable interpretation. In “step two,” therefore, the
courts would decide if the agency’s interpretation was “reasonable.”
2. Chevron’s footnotes. Two important footnotes were included in the case excerpt.
In footnote 11, the Court made exceptionally clear the import of the Chevron framework:
even if the agency’s interpretation was not the best interpretation—even if it was not the
interpretation that the Court itself would have chosen as the best reading of the statute—
the agency interpretation was to be upheld anyway (so long as it was reasonable). Can
you square that with footnote 9, which said not only that the courts decide matters of
statutory interpretation, but that they must use all the traditional tools of statutory
interpretation?
3. Was Chevron deference constitutional? The Chevron framework had been
considered by some judges and scholars to be an abdication of the judicial duty to
15
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
interpret law. Can you square the decision with the text of the APA, which provides that
courts “shall decide all relevant questions of law, interpret constitutional and statutory
provisions, and determine the meaning or applicability of the terms of an agency action,”
5 U.S.C. § 706? And what about the requirements of Article III? Justice Thomas wrote in a
recent case that “[i]nterpreting federal statutes—including ambiguous ones administered
by an agency—‘calls for that exercise of independent judgment.’ ” Michigan v. EPA, 576
U.S. 743, 761 (2015) (Thomas, J., concurring) (citation omitted). According to Thomas,
Chevron deference “wrests from Courts the ultimate interpretative authority,” and that
“[s]uch a transfer is in tension with Article III’s Vesting Clause, which vests the judicial
power exclusively in Article III courts, not administrative agencies.” Id at 762. What do you
think? The constitutional debate was not resolved when the Court subsequently
overturned Chevron.
4. Precedents for judicial deference? One justification the Court offered in Chevron
in favor of its deference framework was prior precedent. The Court wrote, “We have long
recognized that considerable weight should be
accorded to an executive department’s
construction of a statutory scheme it is
Recall the
contemporaneous and longstanding
entrusted to administer.” Does that sound right
interpretation canons of construction.
to you? It’s not at all clear that many (if any)
What is the relation of those canons to
cases had previously held that an agency
the principle announced in Chevron? Are
these different principles?
interpretation stands even if it violates what
the courts understand to be the best reading of
the statute. Recall Skidmore, in which the Court gave the administrator’s interpretation
weight to the extent it was persuasive. Recall also one of our statutory interpretation
lessons: it was a traditional tool of statutory interpretation to give some weight to
executive interpretations contemporaneous with a law’s enactment, as well as
longstanding executive interpretations, because such interpretations were good evidence
of what the law actually was. See generally Aditya Bamzai, The Origins of Judicial
Deference to Executive Interpretation, 126 Yale L.J. 908 (2017). But in Chevron, the Court
openly acknowledged that the EPA had been shifting its position on the bubble concept,
and held, “An initial agency interpretation is not instantly carved in stone. On the
contrary, the agency, to engage in informed rulemaking, must consider varying
interpretations and the wisdom of its policy on a continuing basis.” Is that consistent, or
inconsistent, with the contemporaneous exposition and longstanding usage canons?
5. Mandamus justifications? Justice Scalia once sought to root Chevron deference
in old mandamus cases where the courts would refuse to compel the executive to
interpret the law in a particular way. United States v. Mead, 533 U.S. 218, 242 (2001)
16
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
(Scalia, J., dissenting). The mandamus
precedents don’t quite say what Chevron does,
however. As the reader might recall from
MANDAMUS: A
relatively rare judicial remedy whereby
Marbury v. Madison, mandamus is a rare remedy
courts compel executive or judicial
used to compel executive action where the task
officers to undertake duties where the law
at hand is “ministerial” and clearly required by
does not leave the officer any discretion in
the matter.
law. If the executive officer had discretion,
however, there could be no mandamus. Thus,
courts sometimes refused to grant writs of mandamus compelling the executive to adopt
particular interpretations of statutes because legal interpretation requires a lot of
discretion and judgment. But, in ordinary, non-mandamus lawsuits involving private
rights, the courts would nevertheless interpret the statutes for themselves.
A classic example of this is the case of Decatur v. Paulding, 39 U.S. (14 Pet.) 497
(1840). There, the Court was confronted with two statutes, one which granted a pension
to all widows of naval service members, and another which granted a pension specifically
to the widow of Commodore Stephen Decatur. Mrs. Decatur sought to collect both
pensions. The Court recognized that the interpretation of this law could leave room for
discretion and even disagreement, and thus the Court would not compel the executive to
adopt one interpretation over another through a writ of mandamus. But the Court also
noted that had a non-mandamus action been brought, then “the Court certainly would
not be bound to adopt the construction given by the head of a department” because in
such cases it is the judges’ “duty to interpret the act of Congress, in order to ascertain the
rights of the parties in the cause before them.” Id. at 515. In the very next year the
Supreme Court again held that notwithstanding “the uniform construction” given to an act
by the treasury department for two decades, “the judicial department has imposed upon
it by the constitution, the solemn duty to interpret the laws, . . . however disagreeable
that duty may be, in cases where its own judgment shall differ from that of other high
functionaries.” United States v. Dickson, 40 U.S. (15 Pet.) 141, 161–62 (1841).
6. Interpretation or policy? Perhaps defenses of the Chevron doctrine have to be
found elsewhere. The Court also said the following: “When a challenge to an agency
construction of a statutory provision, fairly conceptualized, really centers on the wisdom
of the agency’s policy, . . . the challenge must fail.” The Court here seemed to suggest that
some questions of interpretation are really questions of policy. This is a classic argument
of the legal realists. As Cass Sunstein has written, the Court’s rationales in Chevron
amount to “a candid recognition that assessments of policy are sometimes indispensable
to statutory interpretation.” Cass R. Sunstein, Beyond Marbury: The Executive’s Power to
Say What the Law Is, 115 Yale L.J. 2580, 2587 (2006). This recognition is rooted in the
17
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
arguments of the legal realists like Max Radin and Ernst Freund, who argued that “the
inevitable ambiguities of language” make the interpretation of law “a controlling factor in
the effect of legislative instruments,” and thus make courts a “rival organ with the
legislature in the development of the written law.” Id. Supposing that the legal realists
“were broadly right” to suggest that policymaking inheres in interpreting statutory
ambiguity, Sunstein writes, “then there seems to be little reason to think that courts,
rather than the executive, should be making the key judgments.” Id. at 2592.
Do you agree? Is it impossible to separate interpretation from policymaking? Are all
statutes so ambiguous or vague that one’s choice of interpretation is inherently a
legislative-type choice? Many scholars today argue that resolving “ambiguities” in statutes
calls for policymaking. See, e.g., Kenneth A. Bamberger & Peter L. Strauss, Chevron’s Two
Steps, 95 Va. L. Rev. 611, 617 (2009); Henry P. Monaghan, Marbury and the Administrative
State, 83 Colum. L. Rev. 1, 6–7, 26–28 (1983); Jonathan R. Siegel, The Constitutional Case
for Chevron Deference, 71 Vand. L. Rev. 937, 963–65 (2018).
Maybe we can distinguish between interpretation and policymaking, but what’s
often at issue in these cases is in fact policymaking and not interpretation. If what’s going
on is really some kind of policymaking, then indeed it’s hard to see why courts would be
uniquely suited to the task. Thus, one could defend Chevron on the ground that agencies
are more institutionally competent, as well as more politically accountable, than courts in
making such policy decisions. As the Court in Chevron itself said, “Judges are not experts in
the field, and are not part of either political branch of the Government.”
What do you think? Is it possible that what the agencies are really doing when they
are implementing broad statutory terms or filling gaps in statutes is not interpretation?
When a statute requires an agency to act “reasonably” or “in the public interest,” no one
doubts the meaning of these terms; the disagreement is over whether particular policies
are in fact reasonable or in the public interest. That is not an “interpretive” question, but
rather a legislative question. In other words, when there’s a broad statutory term, isn’t
the agency exercising a kind of legislative, or quasi-legislative, power? Go back to the
questions in Hearst and Gray: were those interpretive questions, or more questions of
policy? Keep this theme in mind as you read Loper Bright, the case overturning Chevron
deference.
7. Implicit delegations. Another rationale for deference was that statutory
ambiguities are implicit delegations from Congress to agencies. As the Court wrote, “If
Congress has explicitly left a gap for the agency to fill, there is an express delegation of
authority to the agency to elucidate a specific provision of the statute by regulation. . . .
Sometimes the legislative delegation to an agency on a particular question is implicit
18
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
rather than explicit.” Yet, if these were interpretive questions, can it really be said
Congress intended to delegate power to agencies to resolve such questions? In fact, didn’t
Congress say the opposite in the APA? Does this rationale depend on such questions truly
being policy questions, not interpretive ones?
8. Deference to agency interpretations of its own regulations. In the Chevron era
(and arguably before), the courts had to defer not only to an agency’s reasonable
interpretation of a statute that it administers, but also to an agency’s reasonable
interpretation of its own regulations. A leading case is Bowles v. Seminole Rock & Sand
Co., 325 U.S. 410 (1945). That case involved the interpretation of a World War II price
control regulation setting the ceiling price for certain commodities as the highest price
“charged” for those commodities in March of 1942. The question was whether such
commodities also had to be delivered in March of 1942. The administrator said no, and the
Court agreed, holding,
Since this involves an interpretation of an administrative regulation a court must
necessarily look to the administrative construction of the regulation if the
meaning of the words used is in doubt. The intention of Congress or the
principles of the Constitution in some situations may be relevant in the first
instance in choosing between various constructions. But the ultimate criterion is
the administrative interpretation, which becomes of controlling weight unless it
is plainly erroneous or inconsistent with the regulation.
Id. at 413–14. In that case, however, the Court reviewed the statutory language for
itself and concluded that it compelled the administrator’s interpretation. Was the Court’s
statement about deference merely dicta?
In Auer v. Robbins, 519 U.S. 452 (1997), the Department of Labor promulgated a
“salary-basis” test for determining whether an employee was exempt from overtime
requirements as an “executive, administrative, or professional” employee. The question in
the case was whether the Secretary of Labor reasonably interpreted that regulation to
deny salaried status when compensation could be adjusted for disciplinary infractions.
Justice Scalia wrote for the Court,
Because the salary-basis test is a creature of the Secretary’s own regulations, his
interpretation of it is, under our jurisprudence, controlling unless “‘plainly
erroneous or inconsistent with the regulation.’” Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 359 (1989) (quoting Bowles v. Seminole Rock &
Sand Co., 325 U.S. 410, 414 (1945)). That deferential standard is easily met here.
19
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
The critical phrase “subject to” comfortably bears the meaning the Secretary
assigns.
Id. at 461.
Justice Scalia further explained that although “the Secretary’s interpretation comes
to us in the form of a legal brief,” that did not “make it unworthy of deference” because it
was not merely a “post hoc rationalization,” but rather reflected “the agency’s fair and
considered judgment on the matter in question.” Id. at 462.
Some scholars argued that Auer deference raises distinct issues from Chevron.
Under the latter doctrine, courts deal with an executive (agency) interpretation of a
congressional statute; under the former, courts
deal with an executive interpretation of an
executive regulation. Does this raise more
Do you agree with
Professor Manning that Auer deference
serious separation of powers concerns? Given
is more problematic than Chevron
how broadly Congress delegates power to
deference?
agencies, does the Auer doctrine allow agencies
to write their own laws, enforce those laws in front of their own adjudicators, and
interpret those laws for themselves? Is that a problem? See John F. Manning,
Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules,
96 Colum. L. Rev. 612 (1996). The counter, of course, is that the agency, at least in theory,
is not exercising legislative power at all; when it promulgates rules implementing a
statutory standard it is exercising “executive” power. If it’s all executive power, where is
the violation of the separation of powers? If, as with Chevron, many of these questions are
really policy questions, then isn’t the agency more institutionally competent to fill the
regulatory gaps?
In 2019, many commentators thought that Auer deference was on its last legs given
the widespread criticism of Chevron and the unique separation of powers issues involved
with agency interpretations of agency regulations. In Kisor v. Wilkie, 588 U.S. 558 (2019),
however, the Supreme Court refused to overturn Auer, although it did limit the reach of
the doctrine significantly. Here are some highlights from Justice Kagan’s opinion for a
plurality of the Court, which will be relevant to the debate over the next principal case:
Begin with a familiar problem in administrative law: For various reasons,
regulations may be genuinely ambiguous. They may not directly or clearly
address every issue; when applied to some fact patterns, they may prove
susceptible to more than one reasonable reading. Sometimes, this sort of
ambiguity arises from careless drafting—the use of a dangling modifier, an
20
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
awkward word, an opaque construction. But often, ambiguity reflects the wellknown limits of expression or knowledge. . . .
We have explained Auer deference (as we now call it) as rooted in a
presumption about congressional intent—a presumption that Congress would
generally want the agency to play the primary role in resolving regulatory
ambiguities. . . .
[T]he presumption that Congress intended Auer deference stems from the
awareness that resolving genuine regulatory ambiguities often “entail[s] the
exercise of judgment grounded in policy concerns.” Return to our TSA example.
In most of their applications, terms like “liquids” and “gels” are clear enough.
(Traveler checklist: Pretzels OK; water not.) But resolving the uncertain issues—
the truffle pâtés or olive tapenades of the world—requires getting in the weeds
of the rule’s policy: Why does TSA ban liquids and gels in the first instance?
What makes them dangerous? Can a potential hijacker use pâté jars in the same
way as soda cans? Or take the less specialized-seeming ADA example. It is easy
enough to know what “comparable lines of sight” means in a movie theater—
but more complicated when, as in sports arenas, spectators sometimes stand
up. How costly is it to insist that the stadium owner take that sporadic behavior
into account, and is the viewing value received worth the added expense? That
cost-benefit calculation, too, sounds more in policy than in law. . . .
And Congress, we have thought, knows just that: It is attuned to the
comparative advantages of agencies over courts in making such policy
judgments. Agencies (unlike courts) have “unique expertise,” often of a
scientific or technical nature, relevant to applying a regulation “to complex or
changing circumstances.” Agencies (unlike courts) can conduct factual
investigations, can consult with affected parties, can consider how their experts
have handled similar issues over the long course of administering a regulatory
program. And agencies (again unlike courts) have political accountability,
because they are subject to the supervision of the President, who in turn
answers to the public. . . .
But all that said, Auer deference is not the answer to every question of
interpreting an agency’s rules. . . . [T]he possibility of deference can arise only if
a regulation is genuinely ambiguous. And when we use that term, we mean it—
genuinely ambiguous, even after a court has resorted to all the standard tools of
interpretation. . . .
21
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
If uncertainty does not exist, there is no plausible reason for deference.
The regulation then just means what it means—and the court must give it
effect, as the court would any law. Otherwise said, the core theory of Auer
deference is that sometimes the law runs out, and policy-laden choice is what is
left over. But if the law gives an answer—if there is only one reasonable
construction of a regulation—then a court has no business deferring to any
other reading, no matter how much the agency insists it would make more
sense. . . .
[N]ot every reasonable agency reading of a genuinely ambiguous rule
should receive Auer deference. . . . [I]t must be the agency’s “authoritative” or
“official position,” rather than any more ad hoc statement not reflecting the
agency’s views. . . .
And even when a court defers to a regulatory reading, it acts consistently
with Section 706. That provision does not specify the standard of review a court
should use in “determin[ing] the meaning” of an ambiguous rule. . . .
What does Justice Kagan mean “that sometimes the law runs out”? If the law has run
out, what is being interpreted? Would it be better to consider such matters interstitial
legislative policymaking questions? Filling in the details of a statutory scheme? In this
respect, consider what Justice Kavanaugh wrote in Kisor:
[S]ome cases involve regulations that employ broad and open-ended terms like
“reasonable,” “appropriate,” “feasible,” or “practicable.” Those kinds of terms
afford agencies broad policy discretion, and courts allow an agency to
reasonably exercise its discretion to choose among the options allowed by the
text of the rule. But that is more State Farm than Auer. See Motor Vehicle Mfrs.
Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29
(1983).
Consider these issues and arguments as you read Loper Bright, the case that formally
overturned Chevron. It is unclear, in light of that case, whether Auer/Seminole Rock
deference is still viable.
Loper Bright Enterprises v. Raimondo
144 S. Ct. 2244 (2024)
CHIEF JUSTICE ROBERTS delivered the opinion of the Court.
22
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
Since our decision in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984), we have sometimes required courts to defer to “permissible” agency
interpretations of the statutes those agencies administer—even when a reviewing court
reads the statute differently. In these cases we consider whether that doctrine should be
overruled.
I
Our Chevron doctrine requires courts to use a two-step framework to interpret
statutes administered by federal agencies. After determining that a case satisfies the
various preconditions we have set for Chevron to apply, a reviewing court must first assess
“whether Congress has directly spoken to the precise question at issue.” If, and only if,
congressional intent is “clear,” that is the end of the inquiry. But if the court determines
that “the statute is silent or ambiguous with respect to the specific issue” at hand, the
court must, at Chevron’s second step, defer to the agency’s interpretation if it “is based on
a permissible construction of the statute.” The reviewing courts in each of the cases
before us applied Chevron’s framework to resolve in favor of the Government challenges
to the same agency rule.
A
The National Marine Fisheries Service (NMFS) administers the MSA [MagnusonStevens Fishery Conservation and Management Act] under a delegation from the
Secretary of Commerce.
The MSA established eight regional fishery management councils composed of
representatives from the coastal States, fishery stakeholders, and NMFS. The councils
develop fishery management plans, which NMFS approves and promulgates as final
regulations. In service of the statute’s fishery conservation and management goals, the
MSA requires that certain provisions—such as “a mechanism for specifying annual catch
limits . . . at a level such that overfishing does not occur,” [16 U.S.C.] § 1853(a)(15)—be
included in these plans. The plans may also include additional discretionary provisions.
See § 1853(b). For example, plans may “prohibit, limit, condition, or require the use of
specified types and quantities of fishing gear, fishing vessels, or equipment,” § 1853(b)(4);
“reserve a portion of the allowable biological catch of the fishery for use in scientific
research,” § 1853(b)(11); and “prescribe such other measures, requirements, or
conditions and restrictions as are determined to be necessary and appropriate for the
conservation and management of the fishery,” § 1853(b)(14).
Relevant here, a plan may also require that “one or more observers be carried on
board” domestic vessels “for the purpose of collecting data necessary for the conservation
23
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
and management of the fishery.” § 1853(b)(8). The MSA specifies three groups that must
cover costs associated with observers: (1) foreign fishing vessels operating within the
exclusive economic zone (which must carry observers), see §§ 1821(h)(1)(A), (h)(4), (h)(6);
(2) vessels participating in certain limited access privilege programs, which impose quotas
permitting fishermen to harvest only specific quantities of a fishery’s total allowable catch,
see §§ 1802(26), 1853a(c)(1)(H), (e)(2), 1854(d)(2); and (3) vessels within the jurisdiction
of the North Pacific Council, where many of the largest and most successful commercial
fishing enterprises in the Nation operate, see § 1862(a). In the latter two cases, the MSA
expressly caps the relevant fees at two or three percent of the value of fish harvested on
the vessels. See §§ 1854(d)(2)(B), 1862(b)(2)(E). And in general, it authorizes the Secretary
to impose “sanctions” when “any payment required for observer services provided to or
contracted by an owner or operator . . . has not been paid.” § 1858(g)(1)(D).
The MSA does not contain similar terms addressing whether Atlantic herring
fishermen may be required to bear costs associated with any observers a plan may
mandate. And at one point, NMFS fully funded the observer coverage the New England
Fishery Management Council required in its plan for the Atlantic herring fishery. See 79
Fed. Reg. 8792 (2014). In 2013, however, the council proposed amending its fishery
management plans to empower it to require fishermen to pay for observers if federal
funding became unavailable. Several years later, NMFS promulgated a rule approving the
amendment.
With respect to the Atlantic herring fishery, the Rule created an industry funded
program that aims to ensure observer coverage on 50 percent of trips undertaken by
vessels with certain types of permits. Under that program, vessel representatives must
“declare into” a fishery before beginning a trip by notifying NMFS of the trip and
announcing the species the vessel intends to harvest. If NMFS determines that an
observer is required, but declines to assign a Government-paid one, the vessel must
contract with and pay for a Government-certified third-party observer. NMFS estimated
that the cost of such an observer would be up to $710 per day, reducing annual returns to
the vessel owner by up to 20 percent.
B
Petitioners . . . are family businesses that operate in the Atlantic herring fishery. In
February 2020, they challenged the Rule under the MSA, which incorporates the
Administrative Procedure Act (APA). In relevant part, they argued that the MSA does not
authorize NMFS to mandate that they pay for observers required by a fishery
management plan. The District Court granted summary judgment to the Government. It
concluded that the MSA authorized the Rule, but noted that even if these petitioners’
24
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
“arguments were enough to raise an ambiguity in the statutory text,” deference to the
agency’s interpretation would be warranted under Chevron.
A divided panel of the D. C. Circuit affirmed. The majority addressed various
provisions of the MSA and concluded that it was not “wholly unambiguous” whether
NMFS may require Atlantic herring fishermen to pay for observers. Because there
remained “some question” as to Congress’s intent, the court proceeded to Chevron’s
second step and deferred to the agency’s interpretation as a “reasonable” construction of
the MSA. In dissent, Judge Walker concluded that Congress’s silence on industry funded
observers for the Atlantic herring fishery—coupled with the express provision for such
observers in other fisheries and on foreign vessels—unambiguously indicated that NMFS
lacked the authority to “require [Atlantic herring] fishermen to pay the wages of at-sea
monitors.”
C
Petitioners [in the companion case] . . . generally declare into multiple fisheries per
trip so they can catch whatever the ocean offers up. If the vessels declare into the Atlantic
herring fishery for a particular trip, they must carry an observer for that trip if NMFS
selects the trip for coverage, even if they end up harvesting fewer herring than other
vessels—or no herring at all.
This set of petitioners, like those in the D. C. Circuit case, filed a suit challenging the
Rule as unauthorized by the MSA. The District Court, like the D. C. Circuit, deferred to
NMFS’s contrary interpretation under Chevron . . . .
The First Circuit . . . ultimately concluded that the “[a]gency’s interpretation of its
authority to require at-sea monitors who are paid for by owners of regulated vessels does
not ‘exceed[ ] the bounds of the permissible.’” In reaching that conclusion, the First Circuit
stated that it was applying Chevron’s two-step framework. . . .
II
A
Article III of the Constitution assigns to the Federal Judiciary the responsibility and
power to adjudicate “Cases” and “Controversies”—concrete disputes with consequences
for the parties involved. The Framers appreciated that the laws judges would necessarily
apply in resolving those disputes would not always be clear. Cognizant of the limits of
human language and foresight, they anticipated that “[a]ll new laws, though penned with
the greatest technical skill, and passed on the fullest and most mature deliberation,”
would be “more or less obscure and equivocal, until their meaning” was settled “by a
25
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
series of particular discussions and adjudications.” The Federalist No. 37, p. 236 (J. Cooke
ed. 1961) (J. Madison).
The Framers also envisioned that the final “interpretation of the laws” would be “the
proper and peculiar province of the courts.” Id., No. 78, at 525 (A. Hamilton). Unlike the
political branches, the courts would by design exercise “neither Force nor Will, but merely
judgment.” Id., at 523. To ensure the “steady, upright and impartial administration of the
laws,” the Framers structured the Constitution to allow judges to exercise that judgment
independent of influence from the political branches.
This Court embraced the Framers’ understanding of the judicial function early on. In
the foundational decision of Marbury v. Madison, Chief Justice Marshall famously
declared that “[i]t is emphatically the province and duty of the judicial department to say
what the law is.” 1 Cranch 137, 177 (1803). And in the following decades, the Court
understood “interpret[ing] the laws, in the last resort,” to be a “solemn duty” of the
Judiciary. United States v. Dickson, 15 Pet. 141, 162 (1841) (Story, J., for the Court). When
the meaning of a statute was at issue, the judicial role was to “interpret the act of
Congress, in order to ascertain the rights of the parties.” Decatur v. Paulding, 14 Pet. 497,
515 (1840).
The Court also recognized from the outset, though, that exercising independent
judgment often included according due respect to Executive Branch interpretations of
federal statutes. For example, in Edwards’ Lessee v. Darby, 12 Wheat. 206 (1827), the
Court explained that “[i]n the construction of a doubtful and ambiguous law, the
contemporaneous construction of those who were called upon to act under the law, and
were appointed to carry its provisions into effect, is entitled to very great respect.” Id., at
210; see also United States v. Vowell, 5 Cranch 368, 372 (1809) (Marshall, C. J., for the
Court).
Such respect was thought especially warranted when an Executive Branch
interpretation was issued roughly contemporaneously with enactment of the statute and
remained consistent over time. . . .
Whatever respect an Executive Branch interpretation was due, a judge “certainly
would not be bound to adopt the construction given by the head of a department.”
Decatur, 14 Pet. at 515; see also Burnet v. Chicago Portrait Co., 285 U.S. 1, 16 (1932).
Otherwise, judicial judgment would not be independent at all. As Justice Story put it, “in
cases where [a court's] own judgment ... differ[ed] from that of other high functionaries,”
the court was “not at liberty to surrender, or to waive it.” Dickson, 15 Pet. at 162.
B
26
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
The New Deal ushered in a “rapid expansion of the administrative process.” But as
new agencies with new powers proliferated, the Court continued to adhere to the
traditional understanding that questions of law were for courts to decide, exercising
independent judgment.
During this period, the Court often treated agency determinations of fact as binding
on the courts, provided that there was “evidence to support the findings.” . . .
But the Court did not extend similar deference to agency resolutions of questions of
law. It instead made clear, repeatedly, that “[t]he interpretation of the meaning of
statutes, as applied to justiciable controversies,” was “exclusively a judicial
function.” United States v. American Trucking Assns., Inc., 310 U.S. 534, 544, (1940). . . . It
also continued to note, as it long had, that the informed judgment of the Executive
Branch—especially in the form of an interpretation issued contemporaneously with the
enactment of the statute—could be entitled to “great weight.” [Id.] at 549.
Perhaps most notably along those lines, in Skidmore v. Swift & Co., 323 U.S. 134
(1944), the Court explained that the “interpretations and opinions” of the relevant
agency, “made in pursuance of official duty” and “based upon . . . specialized experience,”
“constitute[d] a body of experience and informed judgment to which courts and litigants
[could] properly resort for guidance,” even on legal questions. “The weight of such a
judgment in a particular case,” the Court observed, would “depend upon the
thoroughness evident in its consideration, the validity of its reasoning, its consistency with
earlier and later pronouncements, and all those factors which give it power to persuade, if
lacking power to control.”
On occasion, to be sure, the Court applied deferential review upon concluding that a
particular statute empowered an agency to decide how a broad statutory term applied to
specific facts found by the agency. For example, in Gray v. Powell, 314 U.S. 402 (1941), the
Court deferred to an administrative conclusion that a coal-burning railroad that had
arrangements with several coal mines was not a coal “producer” under the Bituminous
Coal Act of 1937. Congress had “specifically” granted the agency the authority to make
that determination. The Court thus reasoned that “[w]here, as here, a determination has
been left to an administrative body, this delegation will be respected and the
administrative conclusion left untouched” so long as the agency’s decision constituted “a
sensible exercise of judgment.” Similarly, in NLRB v. Hearst Publications, Inc., 322 U.S. 111
(1944), the Court deferred to the determination of the National Labor Relations Board
that newsboys were “employee[s]” within the meaning of the National Labor Relations
Act. The Act had, in the Court's judgment, “assigned primarily” to the Board the task of
marking a “definitive limitation around the term ‘employee.’” . . .
27
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
Such deferential review, though, was cabined to factbound determinations like those
at issue in Gray and Hearst. Neither Gray nor Hearst purported to refashion the
longstanding judicial approach to questions of law. In Gray, after deferring to the agency’s
determination that a particular entity was not a “producer” of coal, the Court went on to
discern, based on its own reading of the text, whether another statutory term—“other
disposal” of coal—encompassed a transaction lacking a transfer of title. The Court
evidently perceived no basis for deference to the agency with respect to that pure legal
question. . . .
In any event, the Court was far from consistent in reviewing deferentially even such
factbound statutory determinations. Often the Court simply interpreted and applied the
statute before it. See K. Davis, Administrative Law § 248, p. 893 (1951) (“The one
statement that can be made with confidence about applicability of the doctrine of Gray v.
Powell is that sometimes the Supreme Court applies it and sometimes it does not.”); B.
Schwartz, Gray vs. Powell and the Scope of Review, 54 Mich. L. Rev. 1, 68 (1955) (noting
an “embarrassingly large number of Supreme Court decisions that do not adhere to the
doctrine of Gray v. Powell”). In one illustrative example, the Court . . . declined to “accept
the Administrator's view in deference to administrative construction.” Davies Warehouse
Co. v. Bowles, 321 U.S. 144, 156 (1944). The Administrator’s view, the Court explained,
had “hardly seasoned or broadened into a settled administrative practice,” and thus did
not “overweigh the considerations” the Court had “set forth as to the proper construction
of the statute.”
Nothing in the New Deal era or before it thus resembled the deference rule the Court
would begin applying decades later to all varieties of agency interpretations of statutes.
Instead, just five years after Gray and two after Hearst, Congress codified the opposite
rule: the traditional understanding that courts must “decide all relevant questions of law.”
5 U.S.C. § 706.
C
Congress in 1946 enacted the APA “as a check upon administrators whose zeal might
otherwise have carried them to excesses not contemplated in legislation creating their
offices.” It was the culmination of a “comprehensive rethinking of the place of
administrative agencies in a regime of separate and divided powers.”
In addition to prescribing procedures for agency action, the APA delineates the basic
contours of judicial review of such action. As relevant here, Section 706 directs that “[t]o
the extent necessary to decision and when presented, the reviewing court shall decide all
relevant questions of law, interpret constitutional and statutory provisions, and determine
28
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
the meaning or applicability of the terms of an agency action.” 5 U.S.C. § 706. It further
requires courts to “hold unlawful and set aside agency action, findings, and conclusions
found to be . . . not in accordance with law.” § 706(2)(A).
The APA thus codifies for agency cases the unremarkable, yet elemental proposition
reflected by judicial practice dating back to Marbury: that courts decide legal questions by
applying their own judgment. . . . And it prescribes no deferential standard for courts to
employ in answering those legal questions. That omission is telling, because Section 706
does mandate that judicial review of agency policymaking and factfinding be deferential.
See § 706(2)(A) (agency action to be set aside if “arbitrary, capricious, [or] an abuse of
discretion”); § 706(2)(E) (agency factfinding in formal proceedings to be set aside if
“unsupported by substantial evidence”). . . .
According to both the House and Senate Reports on the legislation, Section
706 “provide[d] that questions of law are for courts rather than agencies to decide in the
last analysis.” H. R. Rep. No. 1980, 79th Cong., 2d Sess., 44 (1946) (emphasis added);
accord, S. Rep. No. 752, 79th Cong., 1st Sess., 28 (1945). . . .
The APA, in short, incorporates the traditional understanding of the judicial function,
under which courts must exercise independent judgment in determining the meaning of
statutory provisions. In exercising such judgment, though, courts may—as they have from
the start—seek aid from the interpretations of those responsible for implementing
particular statutes. Such interpretations “constitute a body of experience and informed
judgment to which courts and litigants may properly resort for guidance” consistent with
the APA. Skidmore, 323 U.S. at 140. And interpretations issued contemporaneously with
the statute at issue, and which have remained consistent over time, may be especially
useful in determining the statute’s meaning.
In a case involving an agency, of course, the statute’s meaning may well be that the
agency is authorized to exercise a degree of discretion. Congress has often enacted such
statutes. For example, some statutes “expressly delegate[ ]” to an agency the authority to
give meaning to a particular statutory term. Others empower an agency to prescribe rules
to “fill up the details” of a statutory scheme, or to regulate subject to the limits imposed
by a term or phrase that “leaves agencies with flexibility,” such as “appropriate” or
“reasonable.”
When the best reading of a statute is that it delegates discretionary authority to an
agency, the role of the reviewing court under the APA is . .. ensuring the agency has
engaged in “‘reasoned decisionmaking’” within those boundaries. . . .
III
29
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
The deference that Chevron requires of courts reviewing agency action cannot be
squared with the APA. . . .
[A]lthough exercising independent judgment is consistent with the “respect”
historically given to Executive Branch interpretations, Chevron insists on much more. It
demands that courts mechanically afford binding deference to agency interpretations,
including those that have been inconsistent over time. Still worse, it forces courts to do so
even when a pre-existing judicial precedent holds that the statute means something
else—unless the prior court happened to also say that the statute is “unambiguous.” . . .
Courts . . . routinely confront statutory ambiguities in cases having nothing to do with
Chevron—cases that do not involve agency interpretations or delegations of authority. Of
course, when faced with a statutory ambiguity in such a case, the ambiguity is not a
delegation to anybody, and a court is not somehow relieved of its obligation to
independently interpret the statute. Courts in that situation do not throw up their hands
because “Congress’s instructions have” supposedly “run out,” leaving a statutory “gap.”
Courts instead understand that such statutes, no matter how impenetrable, do—in fact,
must—have a single, best meaning. . . .
In an agency case as in any other, though, even if some judges might (or might not)
consider the statute ambiguous, there is a best reading all the same—“the reading the
court would have reached” if no agency were involved. It therefore makes no sense to
speak of a “permissible” interpretation that is not the one the court, after applying all
relevant interpretive tools, concludes is best. In the business of statutory interpretation, if
it is not the best, it is not permissible. . . .
Perhaps most fundamentally, Chevron’s presumption is misguided because agencies
have no special competence in resolving statutory ambiguities. Courts do. . . .
[E]ven when an ambiguity happens to implicate a technical matter, it does not follow
that Congress has taken the power to authoritatively interpret the statute from the courts
and given it to the agency. Congress expects courts to handle technical statutory
questions. . . . In an agency case in particular, the court will go about its task with the
agency’s “body of experience and informed judgment,” among other information, at its
disposal. Skidmore, 323 U.S. at 140. And although an agency’s interpretation of a statute
“cannot bind a court,” it may be especially informative “to the extent it rests on factual
premises within [the agency’s] expertise.” Bureau of Alcohol, Tobacco and Firearms v.
FLRA, 464 U.S. 89, 98, n. 8 (1983). . . .
The view that interpretation of ambiguous statutory provisions amounts to
policymaking suited for political actors rather than courts is especially mistaken, for it
30
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
rests on a profound misconception of the judicial role. It is reasonable to assume that
Congress intends to leave policymaking to political actors. But resolution of statutory
ambiguities involves legal interpretation. . . .
That is not to say that Congress cannot or does not confer discretionary authority on
agencies. Congress may do so, subject to constitutional limits, and it often has. But to stay
out of discretionary policymaking left to the political branches, judges need only fulfill
their obligations under the APA to independently identify and respect such delegations of
authority, police the outer statutory boundaries of those delegations, and ensure that
agencies exercise their discretion consistent with the APA. By forcing courts to instead
pretend that ambiguities are necessarily delegations, Chevron does not prevent judges
from making policy. It prevents them from judging. . . .
IV
The only question left is whether stare decisis, the doctrine governing judicial
adherence to precedent, requires us to persist in the Chevron project. It does not. . . .
Experience has also shown that Chevron is unworkable. The defining feature of its
framework is the identification of statutory ambiguity, which requires deference at the
doctrine’s second step. But the concept of ambiguity has always evaded meaningful
definition. As Justice Scalia put the dilemma just five years after Chevron was decided:
“How clear is clear?” 1989 Duke L. J., at 521.
We are no closer to an answer to that question than we were four decades ago. . . .
One judge might see ambiguity everywhere; another might never encounter it. A rule of
law that is so wholly “in the eye of the beholder,” invites different results in like cases and
is therefore “arbitrary in practice.” . . .
Rather than safeguarding reliance interests, Chevron affirmatively destroys them.
Under Chevron, a statutory ambiguity, no matter why it is there, becomes a license
authorizing an agency to change positions as much as it likes . . . .
Chevron was a judicial invention that required judges to disregard their statutory
duties. And the only way to “ensure that the law will not merely change erratically, but
will develop in a principled and intelligible fashion,” is for us to leave Chevron behind.
By doing so, however, we do not call into question prior cases that relied on the
Chevron framework. The holdings of those cases that specific agency actions are lawful—
including the Clean Air Act holding of Chevron itself—are still subject to statutory stare
decisis despite our change in interpretive methodology. Mere reliance on Chevron cannot
constitute a “ ‘special justification’ ” for overruling such a holding, because to say a
31
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
precedent relied on Chevron is, at best, “just an argument that the precedent was wrongly
decided.” That is not enough to justify overruling a statutory precedent.
***
The dissent ends by quoting Chevron: “‘Judges are not experts in the field.’” That
depends, of course, on what the “field” is. If it is legal interpretation, that has been,
“emphatically,” “the province and duty of the judicial department” for at least 221 years.
The rest of the dissent’s selected epigraph is that judges “‘are not part of either political
branch.’” Indeed. Judges have always been expected to apply their “judgment”
independent of the political branches when interpreting the laws those branches enact.
And one of those laws, the APA, bars judges from disregarding that responsibility just
because an Executive Branch agency views a statute differently.
Chevron is overruled. Courts must exercise their independent judgment in deciding
whether an agency has acted within its statutory authority, as the APA requires. Careful
attention to the judgment of the Executive Branch may help inform that inquiry. And
when a particular statute delegates authority to an agency consistent with constitutional
limits, courts must respect the delegation, while ensuring that the agency acts within it.
But courts need not and under the APA may not defer to an agency interpretation of the
law simply because a statute is ambiguous. . . .
Justice THOMAS, concurring.
. . . . I write separately to underscore a more fundamental problem: Chevron
deference also violates our Constitution’s separation of powers, as I have previously
explained at length. See [omitted]; Michigan v. EPA, 576 U.S. 743, 761–763 (2015)
(concurring opinion); see also Perez v. Mortgage Bankers Assn., 575 U.S. 92, 115–118,
(2015) (opinion concurring in judgment). . . . Chevron deference . . . curbs the judicial
power afforded to courts, and simultaneously expands agencies’ executive power beyond
constitutional limits. . . .
Because the Constitution gives the Executive Branch only “[t]he executive Power,”
executive agencies may constitutionally exercise only that power. Art. II, § 1, cl. 1. But,
Chevron gives agencies license to exercise judicial power. By allowing agencies to
definitively interpret laws so long as they are ambiguous, Chevron “transfer[s]” the
Judiciary’s “interpretive judgment to the agency.” . . .
Chevron deference “cannot be salvaged” by recasting it as deference to an agency’s
“formulation of policy.” If that were true, Chevron would mean that “agencies are
32
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
unconstitutionally exercising ‘legislative Powers’ vested in Congress.” By “giv[ing] the
force of law to agency pronouncements on matters of private conduct as to which
Congress did not actually have an intent,” Chevron “permit[s] a body other than Congress
to perform a function that requires an exercise of legislative power.” . . .
Justice GORSUCH, concurring.
In disputes between individuals and the government about the meaning of a federal
law, federal courts have traditionally sought to offer independent judgments about “what
the law is” without favor to either side. . . . Rather than insulate adjudication from power
and politics to ensure a fair hearing “without respect to persons” as the federal judicial
oath demands, Chevron deference requires courts to “place a finger on the scales of
justice in favor of the most powerful of litigants, the federal government.” . . . [U]nder the
Chevron regime, . . . executive agencies may effectively judge the scope of their own
lawful powers.
. . . . [T]extualism serves as an essential guardian of the due process promise of fair
notice. If a judge could discard an old meaning and assign a new one to a law’s terms, all
without any legislative revision, how could people ever be sure of the rules that bind
them? Were the rules otherwise, Blackstone warned, the people would be rendered
“slaves to their magistrates.” 4 Blackstone 371. Yet, replace “magistrates” with
“bureaucrats,” and Blackstone’s fear becomes reality when courts employ Chevron
deference. . . .
Finally, consider workability and reliance. . . .
Throughout its short life, this Court has been forced to supplement and revise
Chevron so many times that no one can agree on how many “steps” it requires, nor even
what each of those “steps” entails. Some suggest that the analysis begins with “step zero”
(perhaps itself a tell), an innovation that traces to United States v. Mead Corp., 533 U.S.
218. Mead held that, before even considering whether Chevron applies, a court must
determine whether Congress meant to delegate to the agency authority to interpret the
law in a given field. . . . Mead fashioned a multifactor test for judges to use. But that test
has proved as indeterminate in application as it was contrived in origin. . . .
Things do not improve as we move up the Chevron ladder. At “step one,” a judge
must defer to an executive official’s interpretation when the statute at hand is
“ambiguous.” . . . [T]he search for ambiguity has devolved into a sort of Snark hunt: Some
33
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
judges claim to spot it almost everywhere, while other equally fine judges claim never to
have seen it. . . .
Nor do courts agree when it comes to “step two.” There, a judge must assess
whether an executive agency’s interpretation of an ambiguous statute is “reasonable.”
But what does that inquiry demand? Some courts engage in a comparatively searching
review; others almost reflexively defer to an agency’s views. Here again, courts have
pursued “wildly different” approaches and reached wildly different conclusions in similar
cases.
Today’s cases exemplify some of these problems. We have before us two circuit
decisions, three opinions, and at least as many interpretive options on the Chevron menu.
On the one hand, we have the D. C. Circuit majority, which deemed the MagnusonStevens Act “ambiguous” and upheld the agency’s regulation as “‘permissible.’” On the
other hand, we have the D. C. Circuit dissent, which argues the statute is “unambiguou[s]”
and that it plainly forecloses the agency’s new rule. And on yet a third hand, we have the
First Circuit, which claimed to have identified “clear textual support” for the regulation,
yet refused to say whether it would “classify [its] conclusion as a product of Chevron step
one or step two.” . . .
Turn now from workability to reliance. . . . Under Chevron, executive officials can
replace one “reasonable” interpretation with another at any time, all without any change
in the law itself. . . .
Take just one example. Brand X concerned a law regulating broadband internet
services. There, the Court upheld an agency rule adopted by the administration of
President George W. Bush because it was premised on a “reasonable” interpretation of
the statute. Later, President Barack Obama’s administration rescinded the rule and
replaced it with another. Later still, during President Donald J. Trump’s administration,
officials replaced that rule with a different one, all before President Joseph R. Biden, Jr.’s
administration declared its intention to reverse course for yet a fourth time. . . . Rather
than promoting reliance by fixing the meaning of the law, Chevron deference engenders
constant uncertainty and convulsive change even when the statute at issue itself remains
unchanged. . . .
Justice KAGAN, with whom Justice SOTOMAYOR and Justice JACKSON join, dissenting.
For 40 years, Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837 (1984), has served as a cornerstone of administrative law, allocating responsibility for
34
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
statutory construction between courts and agencies. Under Chevron, a court uses all its
normal interpretive tools to determine whether Congress has spoken to an issue. If the
court finds Congress has done so, that is the end of the matter; the agency’s views make
no difference. But if the court finds, at the end of its interpretive work, that Congress has
left an ambiguity or gap, then a choice must be made. Who should give content to a
statute when Congress’s instructions have run out? Should it be a court? Or should it be
the agency Congress has charged with administering the statute? The answer Chevron
gives is that it should usually be the agency, within the bounds of reasonableness. . . .
This Court has long understood Chevron deference to reflect what Congress would
want, and so to be rooted in a presumption of legislative intent. Congress knows that it
does not—in fact cannot—write perfectly complete regulatory statutes. . . . Some
interpretive issues arising in the regulatory context involve scientific or technical subject
matter. Agencies have expertise in those areas; courts do not. Some demand a detailed
understanding of complex and interdependent regulatory programs. Agencies know those
programs inside-out; again, courts do not. And some present policy choices, including
trade-offs between competing goods. Agencies report to a President, who in turn answers
to the public for his policy calls; courts have no such accountability and no proper basis for
making policy. And of course Congress has conferred on that expert, experienced, and
politically accountable agency the authority to administer—to make rules about and
otherwise implement—the statute giving rise to the ambiguity or gap. . . . We defer, the
Court has explained, “because of a presumption that Congress” would have “desired the
agency (rather than the courts)” to exercise “whatever degree of discretion” the statute
allows. Smiley v. Citibank (South Dakota), N. A., 517 U.S. 735, 740–741 (1996).
Today, the Court flips the script: It is now “the courts (rather than the agency)” that
will wield power when Congress has left an area of interpretive discretion. A rule of
judicial humility gives way to a rule of judicial hubris. . . .
I
Begin with the problem that gave rise to Chevron (and also to its older precursors):
The regulatory statutes Congress passes often contain ambiguities and gaps. Sometimes
they are intentional. Perhaps Congress “consciously desired” the administering agency to
fill in aspects of the legislative scheme, believing that regulatory experts would be “in a
better position” than legislators to do so. Chevron, 467 U.S. at 865. Or “perhaps Congress
was unable to forge a coalition on either side” of a question, and the contending parties
“decided to take their chances with” the agency’s resolution. Sometimes, though, the gaps
or ambiguities are what might be thought of as predictable accidents. They may be the
result of sloppy drafting, a not infrequent legislative occurrence. Or they may arise from
35
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
the well-known limits of language or foresight. “The subject matter” of a statutory
provision may be too “specialized and varying” to “capture in its every detail.” Kisor, 588
U.S. at 566. Or the provision may give rise, years or decades down the road, to an issue
the enacting Congress could not have anticipated. Whichever the case—whatever the
reason—the result is to create uncertainty about some aspect of a provision’s meaning.
Consider a few examples from the caselaw. They will help show what a typical
Chevron question looks like—or really, what a typical Chevron question is. Because when
choosing whether to send some class of questions mainly to a court, or mainly to an
agency, abstract analysis can only go so far; indeed, it may obscure what matters most. So
I begin with the concrete:
• Under the Public Health Service Act, the Food and Drug Administration (FDA)
regulates “biological product[s],” including “protein[s].” 42 U.S.C. § 262(i)(1). When does
an alpha amino acid polymer qualify as such a “protein”? Must it have a specific, defined
sequence of amino acids? See Teva Pharmaceuticals USA, Inc. v. FDA, 514 F.Supp.3d 66,
79–80, 93–106 (D.C.C. 2020).
• Under the Endangered Species Act, the Fish and Wildlife Service must designate
endangered “vertebrate fish or wildlife” species, including “distinct population
segment[s]” of those species. 16 U.S.C. § 1532(16); see § 1533. What makes one
population segment “distinct” from another? Must the Service treat the Washington State
population of western gray squirrels as “distinct” because it is geographically separated
from other western gray squirrels? Or can the Service take into account that the genetic
makeup of the Washington population does not differ markedly from the rest? See
Northwest Ecosystem Alliance v. United States Fish and Wildlife Serv., 475 F.3d 1136,
1140–1145, 1149 (CA9 2007).
• Under the Medicare program, reimbursements to hospitals are adjusted to reflect
“differences in hospital wage levels” across “geographic area[s].” 42 U.S.C.
§ 1395ww(d)(3)(E)(i). How should the Department of Health and Human Services measure
a “geographic area”? By city? By county? By metropolitan area? See Bellevue Hospital
Center v. Leavitt, 443 F.3d 163, 174–176 (CA2 2006).
• Congress directed the Department of the Interior and the Federal Aviation
Administration to reduce noise from aircraft flying over Grand Canyon National Park—
specifically, to “provide for substantial restoration of the natural quiet.” § 3(b)(1), 101
Stat. 676; see § 3(b)(2). How much noise is consistent with “the natural quiet”? And how
much of the park, for how many hours a day, must be that quiet for the “substantial
36
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
restoration” requirement to be met? See Grand Canyon Air Tour Coalition v. FAA, 154 F.3d
455, 466–467, 474–475 (CADC 1998).
• Or take Chevron itself. In amendments to the Clean Air Act, Congress told States to
require permits for modifying or constructing “stationary sources” of air pollution. 42
U.S.C. § 7502(c)(5). Does the term “stationary source[ ]” refer to each pollution-emitting
piece of equipment within a plant? Or does it refer to the entire plant, and thus allow
escape from the permitting requirement when increased emissions from one piece of
equipment are offset by reductions from another?
In each case, a statutory phrase has more than one reasonable reading. And Congress
has not chosen among them: It has not, in any real-world sense, “fixed” the “single, best
meaning” at “the time of enactment” (to use the majority’s phrase). A question thus
arises: Who decides which of the possible readings should govern?
This Court has long thought that the choice should usually fall to agencies, with
courts broadly deferring to their judgments. For the last 40 years, that doctrine has gone
by the name of Chevron deference, after the 1984 decision that formalized and canonized
it. In Chevron, the Court set out a simple two-part framework for reviewing an agency’s
interpretation of a statute that it administers. First, the reviewing court must determine
whether Congress has “directly spoken to the precise question at issue.” That inquiry is
rigorous: A court must exhaust all the “traditional tools of statutory construction” to
divine statutory meaning. And when it can find that meaning—a “single right answer”—
that is “the end of the matter”: The court cannot defer because it “must give effect to the
unambiguously expressed intent of Congress.” Kisor, 588 U.S. at 575; Chevron, 467 U.S. at
842–843. But if the court, after using its whole legal toolkit, concludes that “the statute is
silent or ambiguous with respect to the specific issue” in dispute—for any of the notuncommon reasons discussed above—then the court must cede the primary interpretive
role. . . .
Congress can always refute that presumptive choice—can say that, really, it would
prefer courts to wield that discretionary power. But until then, the presumption cuts in
the agency’s favor. The next question is why.
For one, because agencies often know things about a statute’s subject matter that
courts could not hope to. The point is especially stark when the statute is of a “scientific or
technical nature.” Agencies are staffed with “experts in the field” who can bring their
training and knowledge to bear on open statutory questions. Consider, for example, the
first bulleted case above. When does an alpha amino acid polymer qualify as a “protein”? I
don’t know many judges who would feel confident resolving that issue. (First question:
37
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
What even is an alpha amino acid polymer?) But the FDA likely has scores of scientists on
staff who can think intelligently about it, maybe collaborate with each other on its finer
points, and arrive at a sensible answer. . . .
A second idea is that Congress would value the agency’s experience with how a
complex regulatory regime functions, and with what is needed to make it effective. . . . In
construing a term like “distinct” in a case about squirrels, the Service likely would benefit
from its “historical familiarity” with how the term has covered the population segments of
other species. . . .
Still more, Chevron’s presumption reflects that resolving statutory ambiguities, as
Congress well knows, is “often more a question of policy than of law.” The task is less one
of construing a text than of balancing competing goals and values. Consider the statutory
directive to achieve “substantial restoration of the [Grand Canyon’s] natural quiet.”
Someone is going to have to decide exactly what that statute means for air traffic over the
canyon. How many flights, in what places and at what times, are consistent with restoring
enough natural quiet on the ground? That is a policy trade-off of a kind familiar to
agencies . . . . Agencies are “subject to the supervision of the President, who in turn
answers to the public.” . . .
None of this is to say that deference to agencies is always appropriate. The Court
over time has fine-tuned the Chevron regime to deny deference in classes of cases in
which Congress has no reason to prefer an agency to a court. . . . Taken together, they
give interpretive primacy to the agency when—but only when—it is acting, as Congress
specified, in the heartland of its delegated authority. . . .
II
. . . . The APA’s Section 706, the majority says, “makes clear” that agency
interpretations of statutes “are not entitled to deference.” . . . That text, contra the
majority, “does not resolve the Chevron question.” C. Sunstein, Chevron As Law, 107 Geo.
L. J. 1613, 1642 (2019) (Sunstein). Or said a bit differently, Section 706 is “generally
indeterminate” on the matter of deference. A. Vermeule, Judging Under Uncertainty 207
(2006) (Vermeule). The majority highlights the phrase “decide all relevant questions of
law” (italicizing the “all”), and notes that the provision “prescribes no deferential
standard” for answering those questions. But just as the provision does not prescribe a
deferential standard of review, so too it does not prescribe a de novo standard of review
. . . . Section 706 does not specify any standard of review for construing statutes. And
when a court uses a deferential standard—here, by deciding whether an agency reading is
reasonable—it just as much “decide[s]” a “relevant question[ ] of law” as when it uses a
38
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
de novo standard. The deferring court then conforms to Section 706 “by determining
whether the agency has stayed within the bounds of its assigned discretion—that is,
whether the agency has construed [the statute it administers] reasonably.” J.
Manning, Chevron and the Reasonable Legislator, 128 Harv. L. Rev. 457, 459 (2014).
Section 706’s references to standards of review in other contexts only further
undercut the majority’s argument. The majority notes that Section 706 requires
deferential review for agency fact-finding and policy-making (under, respectively, a
substantial-evidence standard and an arbitrary-and-capricious standard). . . . In another
part of Section 706, Congress explicitly referred to de novo review. § 706(2)(F). With all
those references to standards of review—both deferential and not—running around
Section 706, what is “telling” is the absence of any standard for reviewing an agency’s
statutory constructions. That silence left the matter, as noted above, “generally
indeterminate”: Section 706 neither mandates nor forbids Chevron-style deference. . . .
An influential study of administrative practice, published five years before the APA’s
enactment, described the state of play: Judicial “review may, in some instances at least,
be limited to the inquiry whether the administrative construction is a permissible one.”
Final Report of Attorney General’s Committee on Administrative Procedure (1941),
reprinted in Administrative Procedure in Government Agencies, S. Doc. No. 8, 77th Cong.,
1st Sess., 78 (1941). Or again: “[W]here the statute is reasonably susceptible of more than
one interpretation, the court may accept that of the administrative body.” Id., at 90–91.
Two prominent Supreme Court decisions of the 1940s put those principles into
action. Gray v. Powell, 314 U.S. 402 (1941), was then widely understood as “the leading
case” on review of agency interpretations. There, the Court deferred to an agency
construction of the term “producer” as used in a statutory exemption from price controls.
Congress, the Court explained, had committed the scope of the exemption to the agency
because its “experience in [the] field gave promise of a better informed, more equitable,
adjustment of the conflicting interests.” . . . Three years later, the Court decided NLRB v.
Hearst Publications, Inc., 322 U.S. 111 (1944), another acknowledged “leading case.” The
Court again deferred, this time to an agency’s construction of the term “employee” in the
National Labor Relations Act. The scope of that term, the Court explained, “belong[ed] to”
the agency to answer based on its “[e]veryday experience in the administration of the
statute.” . . .
The majority has no way around those two noteworthy decisions. It first appears to
distinguish between “pure legal question[s]” and the so-called mixed questions in Gray
and Hearst, involving the application of a legal standard to a set of facts. If in drawing that
distinction, the majority intends to confine its holding to the pure type of legal issue—thus
39
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
enabling courts to defer when law and facts are entwined—I’d be glad. But I suspect the
majority has no such intent, because that approach would preserve Chevron in a
substantial part of its current domain. It is frequently in the consideration of mixed
questions that the scope of statutory terms is established and their meaning defined. . . .
III
. . . . First, the majority makes clear that what is usually called Skidmore deference
continues to apply. Under that decision, agency interpretations “constitute a body of
experience and informed judgment” that may be “entitled to respect.” Skidmore v. Swift &
Co., 323 U.S. 134, 140 (1944). If the majority thinks that the same judges who argue today
about where “ambiguity” resides are not going to argue tomorrow about what “respect”
requires, I fear it will be gravely disappointed. Second, the majority directs courts to
comply with the varied ways in which Congress in fact “delegates discretionary authority”
to agencies. For example, Congress may authorize an agency to “define[ ]” or “delimit[ ]”
statutory terms or concepts, or to “fill up the details” of a statutory scheme. Or Congress
may use, in describing an agency's regulatory authority, inherently “flexib[le]” language
like “appropriate” or “reasonable.” Attending to every such delegation, as the majority
says, is necessary in a world without Chevron. But that task involves complexities of its
own. Indeed, one reason Justice Scalia supported Chevron was that it replaced such a
“statute-by-statute evaluation (which was assuredly a font of uncertainty and litigation)
with an across-the-board presumption.” A. Scalia, Judicial Deference to Administrative
Interpretations of Law, 1989 Duke L. J. 511, 516. . . .
IV
. . . . [I]t is impossible to pretend that today’s decision is a one-off, in either its
treatment of agencies or its treatment of precedent. As to the first, this very Term
presents yet another example of the Court’s resolve to roll back agency authority, despite
congressional direction to the contrary. . . .
NOTES AND QUESTIONS
1. Can Congress mandate deference? Can Congress, if it wanted, amend APA § 706
to provide that courts defer to reasonable agency interpretations? Justice Thomas, in a
solo concurrence, says no. Your casebook author suggests a different approach. It has to
do with the distinction between private rights cases and public rights cases, discussed in
Chapter 7. Here is a brief overview: Whether Congress can mandate deference depends
entirely on the kind of case being adjudicated. If it is a public rights case, then Congress
40
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
can require courts to defer to reasonable
executive interpretations; if it is a private
rights
case,
then
Congress
cannot
constitutionally require courts to defer to
interpretations that they do not believe are
the best interpretations of the statute. Why
the distinction?
Chapter 7 discusses
the distinction between private rights
and public rights. Historically the
executive branch could adjudicate
matters of public right without any court
involvement at all. If that’s true, then
wouldn’t Chevron deference be perfectly
constitutional as applied to public rights
cases?
Public rights cases, as we shall see in Chapter 7, were historically the kinds of cases
that needn’t be resolved by Article III courts at all. The quintessential public rights cases
are claims against the government, where a private citizen is seeking something from the
government, like a land grant or welfare benefits. These cases could be entirely resolved
in the executive branch with no court involvement at all. The theory was rooted in
sovereign immunity: if the government did not have to consent to be sued, then it could
consent on the condition that any adjudication be conducted in an executive branch
tribunal. And if Congress did not have to authorize judicial review at all, then surely
Congress could consent to judicial review on the condition that courts defer to reasonable
agency interpretations.
In contrast, if we are dealing with private rights cases—as in where the government
is trying to deprive a private citizen of liberty or property—those are the cases that had to
be heard in traditional courts, and Congress therefore could not derogate from the judicial
power to interpret law when deciding such cases.
What about Justice Thomas’s point that if these questions are actually policymaking
questions, it would violate Article I’s Vesting Clause by granting legislative power to
agencies? Does that depend on one’s view of the nondelegation doctrine and its content?
That is explored in a later chapter.
2. Skidmore revisited. The majority opinion appears to retain Skidmore deference.
That again raises the question: how much deference does Skidmore require? Deference
only matters if a court would have done something differently but chooses to follow the
agency out of “deference.” Is that what Skidmore is? Is that Skidmore as the majority
understands it in Loper Bright? Or does must the court “defer” only to the extent it is
persuaded by the executive branch’s interpretation? Is that really deference? In United
States v. Mead Corp., 533 U.S. 218 (2001)—a so-called “Step Zero” case back when
Chevron was prevailing law, which step required courts to determine if the Chevron
deference framework even applied—Justice Scalia expressed skepticism about Skidmore.
He called it an “anachronism” and an “empty truism”: “A judge should take into account
the well-considered views of expert observers.” Do you agree?
41
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
3. All the tools of statutory construction? Back when Chevron was prevailing law,
one important question at Chevron’s first step was how much effort should courts make at
step one to begin with. Should they use every tool of statutory interpretation in the
arsenal? If a statute is ambiguous looking only at the text, is that sufficient for deference?
What if looking at purpose, context, and legislative history makes clearer what Congress
intended? Inversely, might resorting to a variety of tools sometimes make the statute
more ambiguous? How much effort, in other words, should courts make before
concluding a statute is ambiguous?
Justice Kagan’s dissenting opinion in Loper Bright suggests that Step One was
“rigorous.” Perhaps it should have been; but was that the case? Did the lower courts in
the cases under consideration in Loper Bright rigorously apply all the tools of statutory
interpretation? One appeals court deferred because the statute was not “wholly”
unambiguous. Doesn’t that suggest a lack of rigor at Step One? That any small amount of
ambiguity could lead to deferring to the agency, when the best reading of the statute was
otherwise? If lower courts had taken Justice Kagan’s injunction about Step One more
seriously, could Loper Bright have been avoided?
4. What is “ambiguity”? That relates to another question about Step One of
Chevron: how much “ambiguity” is necessary to make something ambiguous? Then-Judge
Kavanaugh raised this issue in a prominent law review article in 2016:
But how do courts know when a statute is clear or ambiguous? In other
words, how much clarity is sufficient to call a statute clear and end the case
there without triggering the ambiguity-dependent canons?
. . . . In my experience, judges will often go back and forth arguing over this
point. One judge will say that the statute is clear, and that should be the end of
it. The other judge will respond that the text is ambiguous, meaning that one or
another canon of construction should be employed to decide the case. Neither
judge can convince the other. That’s because there is no right answer.
It turns out that there are at least two separate problems facing those
disagreeing judges.
First, judges must decide how much clarity is needed to call a statute clear.
If the statute is 60–40 in one direction, is that enough to call it clear? How about
80–20? Who knows?
Second, let’s imagine that we could agree on an 80–20 clarity threshold. In
other words, suppose that judges may call a text “clear” only if it is 80–20 or
42
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
more clear in one direction. Even if we say that 80–20 is the necessary level of
clear, how do we then apply that 80–20 formula to particular statutory text? . . .
I tend to be a judge who finds clarity more readily than some of my
colleagues but perhaps a little less readily than others. In practice, I probably
apply something approaching a 65–35 rule. In other words, if the interpretation
is at least 65–35 clear, then I will call it clear and reject reliance on ambiguitydependent canons. I think a few of my colleagues apply more of a 90–10 rule, at
least in certain cases. Only if the proffered interpretation is at least 90–10 clear
will they call it clear. By contrast, I have other colleagues who appear to apply a
55–45 rule. If the statute is at least 55–45 clear, that’s good enough to call it
clear.
Who is right in that debate? Who knows? . . . [E]ven if my colleagues and I
could agree on 65–35, for example, as the appropriate trigger, we would still
have to figure out whether the text in question surmounts that 65–35
threshold. . . .
The simple and troubling truth is that no definitive guide exists for
determining whether statutory language is clear or ambiguous.
Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2136–38
(2016).
Is Loper Bright a solution to now-Justice Kavanaugh’s observations? Namely: Judges
will of course disagree about what the best interpretation of a statute is in any particular
case, but at least everyone is asking the same question: what does each judge think is the
best reading of the statute? And if you can count to five judges—or two on the appeal’s
court—who agree with your interpretation, then you win the case.
5. Interpretation versus policymaking revisited. Is there less disagreement than
meets the eye? After all the tools of statutory construction are used, the statute still might
not answer the question at hand, Justice Kagan asserts. That is the same point she made
in Kisor, excerpted above in the notes. To be sure, she describes the agency’s choice at
this juncture as an “interpretation” of the statute. But is it really? If, after all the tools of
statutory interpretation are deployed, the statute simply doesn’t answer the question—if
the law runs out, as Kagan says—then aren’t we dealing with something very different
than “interpretation”? If the law has run out, what’s being interpreted? Aren’t we in a
realm of pure policymaking? Aren’t the agencies exercising a kind of legislative, or at least
quasi-legislative, power?
43
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
In fact, doesn’t the majority gesture to precisely that issue? The majority says, “In a
case involving an agency, of course, the statute’s meaning may well be that the agency is
authorized to exercise a degree of discretion.” Some statutes “empower an agency to
prescribe rules to ‘fill up the details’ of a statutory scheme, or to regulate subject to the
limits imposed by a term or phrase that ‘leaves agencies with flexibility,’ such as
‘appropriate’ or ‘reasonable.’” Put another way, the dissenters correctly explain that
Chevron deference applied to both “ambiguities” and “gaps.” Isn’t the majority just saying
that Chevron deference still applies to “gaps,” but not to “ambiguities”?
How would you decide all the cases in Justice Kagan’s examples? Are those statutes
ambiguous, or do they leave gaps? Don’t we know what the term “distinct population
segment” means? There’s no ambiguity. The meaning of each word is clear. It’s just that
Congress did not tell us in what sense the population had to be “distinct.” Genetically
distinct? Geographically distinct? And so on. Perhaps there is more in the statute’s text,
context, and purpose that helps answer that question. If so, that’s a matter of interpreting
Congress’s instructions. But if those instructions leave no other clues, then there is
nothing left to interpret. Whether to go with genetic distinctiveness or geographic
distinctiveness will be a policy question—a gap, or detail, for the agency to fill. Similarly,
the term “geographic area” is not ambiguous. If there are no more interpretive clues in
the statute, then it is a policy choice whether to adjust reimbursements across cities, or
counties, or metropolitan areas. Might the majority in Loper Bright decide that case the
same way? Might the “best reading” of the statute be that it delegates this interstitial,
gap-filling policy question to the agency?
Justice Kagan’s examples are, in your author’s opinion, largely cases in which genuine
policymaking discretion was delegated. But there are many other cases in which courts
have applied Chevron deference to obviously interpretive questions to support an
agency’s interpretation of the statute far from the most natural or best reading of the
statute.
Consider, for example, Barnhart v. Walton, 535 U.S. 212 (2002). The Court had to
interpret a provision of the Social Security Act that defined “disability” as an “inability to
engage in any substantial gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than 12 months.” The agency
interpreted this to mean that the inability to engage in substantial work had to last for 12
months, even though linguistically the 12-month requirement modifies “physical or
mental impairment,” suggesting that the impairment is what must be expected to last for
12 months. The Supreme Court nonetheless held that “this linguistic point is insufficient[:]
44
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
It shows that the particular statutory provision says nothing explicitly about the
‘inability’s’ duration. But such silence, after all, normally creates ambiguity. It does not
resolve it.” Id. at 218.
Or consider Martinez-Cedillo v. Sessions, 896 F.3d 979 (9th Cir. 2018). The statute
required the deportation of even lawful permanent residents convicted of “child abuse,
neglect, or abandonment.” The plaintiff was convicted in California court of “child
endangerment” for driving under the influence with a child in the car not wearing a seat
belt. The Federal Board of Immigration Appeals interpreted “child abuse” to include this
circumstance, because its definition did not require actual physical harm to the child. The
court deferred, even though “endangering” a child is different from “abusing” a child.
Wouldn’t it be better to abandon Chevron deference in the above two examples? In
fact, had the courts had “rigorous[ly]” applied all the tools of statutory construction at
Step One as Justice Kagan says they should have, would the results in those cases have
been different? Or, again, consider the actual cases at issue in Loper Bright. If the courts
had followed Justice Kagan’s exhortation, would the results have been any different than
under the majority’s new approach? Thus understood, is there really much difference
between overturning Chevron deference as to genuinely interpretive questions, and
Justice Kagan’s proposed approach?
The distinction between interpretation and policy—which the legal realists denied
existed—may determine whether one thinks Chevron deference makes sense or not.
Consider the following excerpt from an article your casebook author has written:
Agencies do interpret law as an incident to enforcing the law, but they also
do something else: they exercise a kind of interstitial lawmaking, gap-filling,
policymaking power where the statute is clear but does not specify a course of
action, a power that I shall call the “specification power.”
Although many deference proponents have intuited that agencies are
doing something along these lines, they have been unable to escape the
doctrinal vocabulary of interpretation and therefore have failed to provide an
accurate descriptive or constitutional account of this power. . . .
[O]ne of the earliest statutes provided that the military pensions which had
been granted and paid by the states pursuant to the acts of the Confederation
Congress to the wounded and disabled veterans of the Revolutionary War “shall
be continued and paid by the United States, from the fourth day of March last,
for the space of one year, under such regulations as the President of the United
States may direct.” President Washington’s regulations stated that the sums
45
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
owed were to be paid in “two equal payments,” the first on March 5, 1790, and
the second on June 5, 1790; and that each application for payment was to be
accompanied by certain vouchers as evidence that the invalid served in a
particular regiment or vessel at the time he was disabled.
This is a particularly clear example of an executive officer exercising a
power not of interpretation, but of what we might call specification. The
regulation concerning two equal payments to be made three months apart was
certainly a reasonable interpretation of the statute, which required the
payments to be made within one year. Yet the executive could have chosen any
number of other options: daily installments for the entire year, three
installments at varying intervals to be completed within the year, and so on.
Each of these options, in and of itself, would have been a reasonable
interpretation of the statute because the statute only required such payments
to be made within a year.
The act of choosing among these various possible interpretations,
however, was not an act of interpretation. Nothing in the statute demanded one
regulation over another; all would have been reasonable interpretations
because all would have been permitted by the statute. The choice among these
options, then, was not an act of interpretation and that choice requires a
different vocabulary. I suggest the term “specification”: the executive officers
specified this detail of implementation—this course of action—within the
bounds of what the statute permitted but without more specific direction from
the statute itself. Nothing in the statute bore on their choice, so long as it was
within the range of options created by the best interpretation of the statute’s
limits.
Now consider another case: A statute provides that a “stationary source” is
defined as “any building, structure, facility, or installation” which emits air
pollution. The statute does not say, however, what to do when more than one
of these definitions applies, for example when there is a facility that includes
multiple structures and installations. A judge might do all the “interpretation”
there is to do—ascertaining the meaning of all the relevant terms as well as the
legal effect of those terms against the structure and backdrop of the entire
statute and preexisting law more broadly—and the statute might simply not
answer the question. The statute is not ambiguous, nor is it vague. It has simply
left a “gap” or a “silence,” a space within which the executive might specify the
course of action in order to implement the statutory scheme. Here, again, the
46
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
result of the executive’s choice would, of course, be a reasonable interpretation
of the statute; but the act of choosing among the multiple permissible options
would not be an act of interpretation. These were the facts of Chevron itself,
facts that call for an exercise of the specification power. This is the power to fill
in the details where the statute is clear but does not specify the course of
action.
Although agencies may not have final say over the interpretation of law,
their exercise of the specification power is rooted in the text, structure, and
history of both the “legislative power” and the “executive power.” Chief Justice
John Marshall recognized long ago that there was a category of power partly but
not wholly legislative in its nature—we shall call it here “nonexclusive”
legislative power—that Congress may exercise itself or delegate to the other
branches. He described this power as the power to “fill up the details” of a
general statutory provision. . . .
A specification power could inhere in the President’s duty to take care that
the laws be faithfully executed, assuming this textual provision is also a grant of
power. If Congress left a detail to be specified, even if Congress did so
unknowingly and even if Congress did not explicitly grant the executive the
power to make regulations, how are executive officers to execute the laws
faithfully without providing for that detail of implementation? This is what we
ordinarily mean when we say a statute has a “gap.” In Chevron itself, the agency
was required to regulate “stationary sources.” To execute this instruction, the
agency had to decide what to consider as a stationary source when more than
one of the statutory definitions applied. This gap had to be filled, in other words,
for the law to be faithfully executed. . . .
Ilan Wurman, The Specification Power, 168 U. Pa. L. Rev. 689 (2020).
Do you see the difference between interpretation and gap-filling, or do you think
there isn’t much to the difference? In the next excerpt, Professor Sunstein summarizes the
legal realist point of view that interpretation and policymaking cannot be separated.
Cass R. Sunstein, Beyond Marbury: The Executive’s
Power to Say What the Law Is
115 Yale L.J. 2580 (2006)
47
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
My major goal in this Essay is to vindicate the law-interpreting authority of the
executive branch. This authority, I suggest, is indispensable to the healthy operation of
modern government; it can be defended on both democratic and technocratic grounds.
Indeed, the executive’s law-interpreting authority is a natural and proper outgrowth of
both the legal realist attack on the autonomy of legal reasoning and the most important
institutional development of the twentieth century: the shift from regulation through
common law courts to regulation through administrative agencies. In the modern era,
statutory interpretation must often be undertaken, at least in the first instance, by
numerous institutions within the executive branch. For the resolution of ambiguities in
statutory law, technical expertise and political accountability are highly relevant, and on
these counts the executive has significant advantages over courts. Changed
circumstances, involving new values and new understandings of fact, are relevant too, and
they suggest further advantages on the part of the executive. . . .
What is most striking about the Court’s analysis in Chevron is the suggestion that
resolution of statutory ambiguities requires a judgment about resolving “competing
interests.” This is a candid recognition that assessments of policy are sometimes
indispensable to statutory interpretation. Of course it is easy to find cases in which courts
resolve ambiguities by using the standard legal sources—for example, by using
dictionaries, consulting statutory structure, deploying canons of construction, or relying
on legislative history if that technique is thought to be legitimate. Under the first step of
Chevron, the executive will lose if the standard sources show that the agency is wrong. But
sometimes those sources will leave gaps or reasonable disagreement; Chevron itself is
such a case, and there are many others. . . .
The legal realists saw the interpretation of statutory ambiguities as necessarily
involving judgments of policy and principle. They insisted that when courts understand
statutes to mean one thing rather than another, they use judgments of their own, at least
in genuinely hard cases. In a famous article, for example, Max Radin attacked the standard
tools as largely unhelpful. . . . Radin said that, inevitably, a key question was, “Will the
inclusion of this particular determinate in the statutory determinable lead to a desirable
result? What is desirable will be what is just, what is proper, what satisfies the social
emotions of the judge, what fits into the ideal scheme of society which he entertains.”
Radin’s argument was characteristic of the general period in which courts were being
displaced by regulatory agencies. A specialist in administrative law, Ernst Freund saw at an
early stage that for some statutes, “executive interpretation is an important factor.”
Freund noted, with evident concern, that “in view of the inevitable ambiguities of
language, a power of interpretation is a controlling factor in the effect of legislative
48
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
instruments, and makes the courts that exercise it a rival organ with the legislature in the
development of the written law.” After surveying the various sources of interpretation,
Freund emphasized that policy, in the end, must be primary; therefore, “in cases of
genuine ambiguity courts should use the power of interpretation consciously and
deliberately to promote sound law and sound principles of legislation.”
For his part, Karl Llewellyn contended that the standard sources of interpretation,
above all the canons of construction, masked judgments that were really based on other
grounds. He asked courts to “strive to make sense as a whole out of our law as a whole.”
In his view, the canons were plural and inconsistent, and thus unable to provide real help.
Llewellyn argued that statutory meaning should be derived from “[t]he good sense of the
situation and a simple construction of the available language to achieve that sense, by
tenable means, out of the statutory language.”
Radin, Freund, and Llewellyn overstated their arguments. Canons of construction, for
example, can constrain judicial (or executive) interpretation, and it may well be better to
rely on them than on a judge’s individual, general sense of what is best. But suppose that
the realists were broadly right to suggest that, in the face of genuine ambiguity, courts
often make judgments of policy. Suppose that in hard cases, the search for “legislative
intent” is often a fraud, and that when courts purport to rely on that intent, they often
speak for their own preferred views. If Radin, Freund, and Llewellyn are indeed right, then
there seems to be little reason to think that courts, rather than the executive, should be
making the key judgments. The President himself should be in a better position to make
the relevant judgments, simply because of his comparatively greater accountability. And if
specialized knowledge is required, executive agencies have large advantages over
generalist judges. In support of the realist position, consider strong evidence that, for hard
statutory questions within the Supreme Court, policy arguments of one or another sort
often play a central role, even in a period in which “textualism” has seemed on the
ascendancy.
These points are easily linked with the post-New Deal transfer of effective lawmaking
power from common law courts to federal bureaucracies. For much of the nation’s
history, the basic rules of regulation were elaborated by common law courts, using the
principles of tort, contract, and property to set out the ground rules for social and
economic relationships. In the early part of the twentieth century, some of those rules
were taken to have constitutional status, so as to forbid legislative adjustments. But in a
wholesale attack on the adequacy of the common law, the New Deal saw the rise and
legitimation of a vast array of new agencies . . . .
49
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
Many of the agencies were necessarily in the business of interpreting ambiguous
statutory provisions; indeed, interpretation was the central part of their job. Agency-made
common law dominated the early days of the administrative state. To take just one
example, the NLRB was required to decide a number of fundamental questions about
national labor policy. The statute did not speak plainly, and questions of policy were
inevitably involved. While the federal courts also played a significant and sometimes
aggressive role, the elaboration of the labor enactments of the New Deal was inevitably
founded on the work of the NLRB. What can be said for the NLRB can also be said of the
FDA, the FCC, the SEC, and the FTC, all of which, in the New Deal era, were also charged
with implementing statutory law through the interpretation of largely open-ended
statutory provisions.
There is an evident link between the realists’ emphasis on the policy-driven nature of
interpretation and the New Deal’s enthusiasm for administrators, who were to be both
expert and accountable. . . .
Chevron is best taken as a vindication of the realist claim that resolution of statutory
ambiguities often calls for judgments of policy and principle. The allocation of lawinterpreting power to the executive fits admirably well with the twentieth-century shift
from common law courts to regulatory administration. . . .
2.
Text, Structure, and Purpose
In light of Loper Bright, the tools of statutory interpretation become all the more
important when construing regulatory statutes. Many of the pre-Loper Bright cases,
decided under the Chevron framework, remain instructive. The reader will begin to
appreciate the frustration many had with that framework. Sometimes the courts threw up
their hands even though there was more interpretation to do. Other times a court claimed
a statute was “clear” at the first, interpretive step, when it was anything but. In the cases
that follow, Chevron deference played a relatively narrow role, if it played one at all. Far
more important even then was the statute’s text, context, structure, and purpose. As you
read the following cases, ask yourself how you would weigh the various interpretive tools.
This section presents three cases all involving intratextual and structural
interpretation, that is, how the various parts of the statute work together and modify
each other. The first case is FDA v. Brown & Williamson, about the FDA’s then-limited
authority to regulate tobacco. That case was also a precursor to the modern “major
questions doctrine,” which the next section takes up. The second is Massachusetts v. EPA,
holding that greenhouse gases are pollutants within the meaning of the Clean Air Act. In
Brown & Williamson the Court held that nicotine was not a “drug” and therefore outside
50
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
the agency’s regulatory jurisdiction; in Massachusetts the Court held that carbon dioxide
did fall within the meaning of “pollutant” and therefore the agency’s regulatory
jurisdiction. Can you explain the difference? The third case is UARG v. EPA, which had to
interpret other parts of the Clean Air Act in light of the prior holding that carbon dioxide
was a pollutant. Important statutory interpretation lessons follow the cases.
FDA v. Brown & Williamson Tobacco Corp.
529 U.S. 120 (2000)
JUSTICE O’CONNOR delivered the opinion of the Court.
This case involves 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. In
1996, the Food and Drug Administration (FDA), after having expressly disavowed any such
authority since its inception, asserted jurisdiction to regulate tobacco products. The FDA
concluded that nicotine is a “drug” within the meaning of the Food, Drug, and Cosmetic
Act (FDCA or Act), and that cigarettes and smokeless tobacco are “combination products”
that deliver nicotine to the body. Pursuant to this authority, it promulgated regulations
intended to reduce tobacco consumption among children and adolescents. The agency
believed that, because most tobacco consumers begin their use before reaching the age of
18, curbing tobacco use by minors could substantially reduce the prevalence of addiction
in future generations and thus the incidence of tobacco-related death and disease.
Regardless of how serious the problem an administrative agency seeks to address,
however, it may not exercise its authority “in a manner that is inconsistent with the
administrative structure that Congress enacted into law.” And although agencies are
generally entitled to deference in the interpretation of statutes that they administer, a
reviewing “court, as well as the agency, must give effect to the unambiguously expressed
intent of Congress.” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.
S. 837, 842–843 (1984). In this case, we believe that Congress has clearly precluded the
FDA from asserting jurisdiction to regulate tobacco products. Such authority is
inconsistent with the intent that Congress has expressed in the FDCA’s overall regulatory
scheme and in the tobacco-specific legislation that it has enacted subsequent to the FDCA.
In light of this clear intent, the FDA’s assertion of jurisdiction is impermissible.
I
51
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
The FDCA grants the FDA, as the designee of the Secretary of Health and Human
Services (HHS), the authority to regulate, among other items, “drugs” and “devices.” The
Act defines “drug” to include “articles (other than food) intended to affect the structure or
any function of the body.” 21 U. S. C. § 321(g)(1)(C). It defines “device,” in part, as “an
instrument, apparatus, implement, machine, contrivance, . . . or other similar or related
article, including any component, part, or accessory, which is . . . intended to affect the
structure or any function of the body.” § 321(h). The Act also grants the FDA the authority
to regulate so-called “combination products,” which “constitute a combination of a drug,
device, or biological product.” § 353(g)(1). The FDA has construed this provision as giving
it the discretion to regulate combination products as drugs, as devices, or as both. . . .
On August 28, 1996, the FDA issued a final rule entitled “Regulations Restricting the
Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and
Adolescents.” The FDA determined that nicotine is a “drug” and that cigarettes and
smokeless tobacco are “drug delivery devices,” and therefore it had jurisdiction under the
FDCA to regulate tobacco products as customarily marketed—that is, without
manufacturer claims of therapeutic benefit. First, the FDA found that tobacco products
“affect the structure or any function of the body” because nicotine “has significant
pharmacological effects.” Specifically, nicotine “exerts psychoactive, or mood-altering,
effects on the brain” that cause and sustain addiction, have both tranquilizing and
stimulating effects, and control weight. Second, the FDA determined that these effects
were “intended” under the FDCA because they “are so widely known and foreseeable that
[they] may be deemed to have been intended by the manufacturers”; consumers use
tobacco products “predominantly or nearly exclusively” to obtain these effects; and the
statements, research, and actions of manufacturers revealed that they “have ‘designed’
cigarettes to provide pharmacologically active doses of nicotine to consumers.” Finally,
the agency concluded that cigarettes and smokeless tobacco are “combination products”
because, in addition to containing nicotine, they include device components that deliver a
controlled amount of nicotine to the body.
Having resolved the jurisdictional question, the FDA next explained the policy
justifications for its regulations, detailing the deleterious health effects associated with
tobacco use. . . . Based on these findings, the FDA promulgated regulations concerning
tobacco products’ promotion, labeling, and accessibility to children and adolescents. The
access regulations prohibit the sale of cigarettes or smokeless tobacco to persons younger
than 18; require retailers to verify through photo identification the age of all purchasers
younger than 27; prohibit the sale of cigarettes in quantities smaller than 20; prohibit the
distribution of free samples; and prohibit sales through self-service displays and vending
machines except in adult-only locations. . . .
52
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
The FDA promulgated these regulations pursuant to its authority to regulate
“restricted devices.” See 21 U. S. C. § 360j(e). The FDA construed § 353(g)(1) as giving it
the discretion to regulate “combination products” using the Act’s drug authorities, device
authorities, or both, depending on “how the public health goals of the act can be best
accomplished.” Given the greater flexibility in the FDCA for the regulation of devices, the
FDA determined that “the device authorities provide the most appropriate basis for
regulating cigarettes and smokeless tobacco.” Under 21 U. S. C. § 360j(e), the agency may
“require that a device be restricted to sale, distribution, or use . . . upon such other
conditions as [the FDA] may prescribe in such regulation, if, because of its potentiality for
harmful effect or the collateral measures necessary to its use, [the FDA] determines that
there cannot otherwise be reasonable assurance of its safety and effectiveness.” The FDA
reasoned that its regulations fell within the authority granted by § 360j(e) because they
related to the sale or distribution of tobacco products and were necessary for providing a
reasonable assurance of safety.
***
II
The FDA’s assertion of jurisdiction to regulate tobacco products is founded on its
conclusions that nicotine is a “drug” and that cigarettes and smokeless tobacco are “drug
delivery devices.” . . .
A threshold issue is the appropriate framework for analyzing the FDA’s assertion of
authority to regulate tobacco products. Because this case involves an administrative
agency’s construction of a statute that it administers, our analysis is governed by Chevron
U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). . . .
In determining whether Congress has specifically addressed the question at issue, a
reviewing court should not confine itself to examining a particular statutory provision in
isolation. The meaning—or ambiguity—of certain words or phrases may only become
evident when placed in context. See Brown v. Gardner, 513 U. S. 115, 118 (1994)
(“Ambiguity is a creature not of definitional possibilities but of statutory context”). It is a
“fundamental canon of statutory construction that the words of a statute must be read in
their context and with a view to their place in the overall statutory scheme.” A court must
therefore interpret the statute “as a symmetrical and coherent regulatory scheme,” and
“fit, if possible, all parts into an harmonious whole.” Similarly, the meaning of one statute
may be affected by other Acts, particularly where Congress has spoken subsequently and
more specifically to the topic at hand. In addition, we must be guided to a degree by
53
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
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.
With these principles in mind, we find that Congress has directly spoken to the issue
here and precluded the FDA’s jurisdiction to regulate tobacco products.
A
Viewing the FDCA as a whole, it is evident that one of the Act’s core objectives is to
ensure that any product regulated by the FDA is “safe” and “effective” for its intended
use. . . . This essential purpose pervades the FDCA. For instance, 21 U.S.C. § 393(b)(2)
defines the FDA’s “[m]ission” to include “protect[ing] the public health by ensuring that
. . . drugs are safe and effective” and that “there is reasonable assurance of the safety and
effectiveness of devices intended for human use.” The FDCA requires pre-market approval
of any new drug, with some limited exceptions, and states that the FDA “shall issue an
order refusing to approve the application” of a new drug if it is not safe and effective for
its intended purpose. §§ 355(d)(1)–(2), (4)–(5). . . . The Act also requires the FDA to classify
all devices into one of three categories. Regardless of which category the FDA chooses,
there must be a “reasonable assurance of the safety and effectiveness of the device.” 21
U. S. C. §§ 360c(a)(1)(A)(i), (B), (C). Even the “restricted device” provision pursuant to
which the FDA promulgated the regulations at issue here authorizes the agency to place
conditions on the sale or distribution of a device specifically when “there cannot
otherwise be reasonable assurance of its safety and effectiveness.” 21 U.S.C. § 360j(e).
Thus, the Act generally requires the FDA to prevent the marketing of any drug or device
where the “potential for inflicting death or physical injury is not offset by the possibility of
therapeutic benefit.” United States v. Rutherford, 442 U. S. 544, 556 (1979).
In its rulemaking proceeding, the FDA quite exhaustively documented that “tobacco
products are unsafe,” “dangerous,” and “cause great pain and suffering from illness.” 61
Fed. Reg. 44412 (1996). It found that the consumption of tobacco products presents
“extraordinary health risks,” and that “tobacco use is the single leading cause of
preventable death in the United States.” . . .
These findings logically imply that, if tobacco products were “devices” under the
FDCA, the FDA would be required to remove them from the market. Consider, first, the
FDCA’s provisions concerning the misbranding of drugs or devices. The Act prohibits “[t]he
introduction or delivery for introduction into interstate commerce of any food, drug,
device, or cosmetic that is adulterated or misbranded.” 21 U. S. C. § 331(a). In light of the
FDA’s findings, two distinct FDCA provisions would render cigarettes and smokeless
tobacco misbranded devices. First, § 352(j) deems a drug or device misbranded “[i]f it is
54
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
dangerous to health when used in the dosage or manner, or with the frequency or
duration prescribed, recommended, or suggested in the labeling thereof.” The FDA’s
findings make clear that tobacco products are “dangerous to health” when used in the
manner prescribed. Second, a drug or device is misbranded under the Act “[u]nless its
labeling bears . . . adequate directions for use . . . in such manner and form, as are
necessary for the protection of users,” except where such directions are “not necessary
for the protection of the public health.” § 352(f)(1). Given the FDA’s conclusions
concerning the health consequences of tobacco use, there are no directions that could
adequately protect consumers. . . . Contrary to the dissent’s contention, the Act admits no
remedial discretion once it is evident that the device is misbranded.
Second, the FDCA requires the FDA to place all devices that it regulates into one of
three classifications. See § 360c(b)(1). . . . Given the FDA’s findings regarding the health
consequences of tobacco use, the agency would have to place cigarettes and smokeless
tobacco in Class III because, even after the application of the Act’s available controls, they
would “presen[t] a potential unreasonable risk of illness or injury.” 21 U. S. C.
§ 360c(a)(1)(C). As Class III devices, tobacco products would be subject to the FDCA’s premarket approval process. Under these provisions, the FDA would be prohibited from
approving an application for premarket approval without “a showing of reasonable
assurance that such device is safe under the conditions of use prescribed, recommended,
or suggested in the proposed labeling thereof.” 21 U.S.C. § 360e(d)(2)(A). In view of the
FDA’s conclusions regarding the health effects of tobacco use, the agency would have no
basis for finding any such reasonable assurance of safety. Thus, once the FDA fulfilled its
statutory obligation to classify tobacco products, it could not allow them to be marketed.
The FDCA’s misbranding and device classification provisions therefore make evident
that were the FDA to regulate cigarettes and smokeless tobacco, the Act would require
the agency to ban them. . . .
Congress, however, has foreclosed the removal of tobacco products from the market.
A provision of the United States Code currently in force states that “[t]he marketing of
tobacco constitutes one of the greatest basic industries of the United States with
ramifying activities which directly affect interstate and foreign commerce at every point,
and stable conditions therein are necessary to the general welfare.” 7 U.S.C. § 1311(a).
More importantly, Congress has directly addressed the problem of tobacco and health
through legislation on six occasions since 1965. . . . When Congress enacted these
statutes, the adverse health consequences of tobacco use were well known, as were
nicotine’s pharmacological effects. . . . Nonetheless, Congress stopped well short of
ordering a ban. Instead, it has generally regulated the labeling and advertisement of
55
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
tobacco products, expressly providing that it is the policy of Congress that “commerce and
the national economy may be . . . protected to the maximum extent consistent with”
consumers “be[ing] adequately informed about any adverse health effects.” 15 U. S. C.
§ 1331. . . . [T]he collective premise of these statutes is that cigarettes and smokeless
tobacco will continue to be sold in the United States. A ban of tobacco products by the
FDA would therefore plainly contradict congressional policy.
***
[T]he analogy made by the FDA and the dissent to highly toxic drugs used in the
treatment of various cancers is unpersuasive. Although “dangerous” in some sense, these
drugs are safe within the meaning of the Act because, for certain patients, the therapeutic
benefits outweigh the risk of harm. Accordingly, such drugs cannot properly be described
as “dangerous to health” under 21 U. S. C. § 352(j). The same is not true for tobacco
products. As the FDA has documented in great detail, cigarettes and smokeless tobacco
are an unsafe means to obtaining any pharmacological effect.
The dissent contends that our conclusion means that “the FDCA requires the FDA to
ban outright ‘dangerous’ drugs or devices,” and that this is a “perverse” reading of the
statute. This misunderstands our holding. The FDA, consistent with the FDCA, may clearly
regulate many “dangerous” products without banning them. Indeed, virtually every drug
or device poses dangers under certain conditions. What the FDA may not do is conclude
that a drug or device cannot be used safely for any therapeutic purpose and yet, at the
same time, allow that product to remain on the market. Such regulation is incompatible
with the FDCA’s core objective of ensuring that every drug or device is safe and effective.
***
The inescapable conclusion is that there is no room for tobacco products within the
FDCA’s regulatory scheme. If they cannot be used safely for any therapeutic purpose, and
yet they cannot be banned, they simply do not fit.
B
In determining whether Congress has spoken directly to the FDA’s authority to
regulate tobacco, we must also consider in greater detail the tobacco-specific legislation
that Congress has enacted over the past 35 years. At the time a statute is enacted, it may
have a range of plausible meanings. Over time, however, subsequent acts can shape or
focus those meanings. The “classic judicial task of reconciling many laws enacted over
time, and getting them to ‘make sense’ in combination, necessarily assumes that the
implications of a statute may be altered by the implications of a later statute.” United
56
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
States v. Fausto, 484 U.S. at 453. This is particularly so where the scope of the earlier
statute is broad but the subsequent statutes more specifically address the topic at hand.
As we recognized recently in United States v. Estate of Romani, “a specific policy
embodied in a later federal statute should control our construction of the [earlier] statute,
even though it ha[s] not been expressly amended.”
Congress has enacted six separate pieces of legislation since 1965 addressing the
problem of tobacco use and human health. Those statutes, among other things, require
that health warnings appear on all packaging and in all print and outdoor advertisements;
prohibit the advertisement of tobacco products through “any medium of electronic
communication” subject to regulation by the Federal Communications Commission (FCC);
require the Secretary of HHS to report every three years to Congress on research findings
concerning “the addictive property of tobacco”; and make States’ receipt of certain
federal block grants contingent on their making it unlawful “for any manufacturer,
retailer, or distributor of tobacco products to sell or distribute any such product to any
individual under the age of 18.”
In adopting each statute, Congress has acted against the backdrop of the FDA’s
consistent and repeated statements that it lacked authority under the FDCA to regulate
tobacco absent claims of therapeutic benefit by the manufacturer. In fact, on several
occasions over this period, and after the health consequences of tobacco use and
nicotine’s pharmacological effects had become well known, Congress considered and
rejected bills that would have granted the FDA such jurisdiction. Under these
circumstances, it is evident that Congress’ tobacco-specific statutes have effectively
ratified the FDA’s long-held position that it lacks jurisdiction under the FDCA to regulate
tobacco products. Congress has created a distinct regulatory scheme to address the
problem of tobacco and health, and that scheme, as presently constructed, precludes any
role for the FDA.
[Omitted is a long discussion of the various statutes and legislative debates over
tobacco legislation.—Ed.]
. . . . Although not crucial, the consistency of the FDA’s prior position bolsters the
conclusion that when Congress created a distinct regulatory scheme addressing the
subject of tobacco and health, it understood that the FDA is without jurisdiction to
regulate tobacco products and ratified that position.
***
C
57
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
Finally, our inquiry into whether Congress has directly spoken to the precise question
at issue is shaped, at least in some measure, by the nature of the question presented.
Deference under Chevron to an agency’s construction of a statute that it administers is
premised on the theory that a statute’s ambiguity constitutes an implicit delegation from
Congress to the agency to fill in the statutory gaps. In extraordinary cases, however, there
may be reason to hesitate before concluding that Congress has intended such an implicit
delegation. . . .
This is hardly an ordinary case. . . . Owing to its unique place in American history and
society, tobacco has its own unique political history. Congress, for better or for worse, has
created a distinct regulatory scheme for tobacco products, squarely rejected proposals to
give the FDA jurisdiction over tobacco, and repeatedly acted to preclude any agency from
exercising significant policymaking authority in the area. Given this history and the
breadth of the authority that the FDA has asserted, we are obliged to defer not to the
agency’s expansive construction of the statute, but to Congress’ consistent judgment to
deny the FDA this power.
Our decision in MCI Telecommunications Corp. v. American Telephone & Telegraph
Co., 512 U.S. 218 (1994), is instructive. That case involved the proper construction of the
term “modify” in § 203(b) of the Communications Act of 1934. The FCC contended that,
because the Act gave it the discretion to “modify any requirement” imposed under the
statute, it therefore possessed the authority to render voluntary the otherwise mandatory
requirement that long distance carriers file their rates. We rejected the FCC’s
construction, finding “not the slightest doubt” that Congress had directly spoken to the
question. In reasoning even more apt here, we concluded that “[i]t 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.”
As in MCI, we are confident that Congress could not have intended to delegate a
decision of such economic and political significance to an agency in so cryptic a
fashion. . . . It is therefore clear, based on the FDCA’s overall regulatory scheme and the
subsequent tobacco legislation, that Congress has directly spoken to the question at issue
and precluded the FDA from regulating tobacco products. . . .
JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE SOUTER, and JUSTICE GINSBURG join,
dissenting.
58
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
The Food and Drug Administration (FDA) has the authority to regulate “articles (other
than food) intended to affect the structure or any function of the body.” Unlike the
majority, I believe that tobacco products fit within this statutory language.
In its own interpretation, the majority nowhere denies the following two salient
points. First, tobacco products (including cigarettes) fall within the scope of this statutory
definition, read literally. Cigarettes achieve their mood stabilizing effects through the
interaction of the chemical nicotine and the cells of the central nervous system. Both
cigarette manufacturers and smokers alike know of, and desire, that chemically induced
result. Hence, cigarettes are “intended to affect” the body’s “structure” and “function,” in
the literal sense of these words.
Second, the statute’s basic purpose—the protection of public health—supports the
inclusion of cigarettes within its scope. . . .
I
***
As I have mentioned, the literal language of the third definition and the FDCA’s
general purpose both strongly support a pro-jurisdiction reading of the statute.
The statute’s history offers further support. The FDA drafted the new language, and
it testified before Congress that the third definition [of drugs and devices, which ended up
in the statute—Ed.] would expand the FDCA’s jurisdictional scope significantly. Indeed,
“[t]he purpose” of the new definition was to “make possible the regulation of a great
many products that have been found on the market that cannot be alleged to be
treatments for diseased conditions.” While the drafters focused specifically upon the need
to give the FDA jurisdiction over “slenderizing” products such as “anti fat remedies,” they
were aware that, in doing so, they had created what was “admittedly an inclusive, a wide
definition.” And that broad language was included deliberately, so that jurisdiction could
be had over “all substances and preparations, other than food, and all devices intended to
affect the structure or any function of the body . . . .”
After studying the FDCA’s history, experts have written that the statute “is a
purposefully broad delegation of discretionary powers by Congress,” and that, in a sense,
the FDCA “must be regarded as a constitution” that “establish[es] general principles” and
“permit[s] implementation within broad parameters” so that the FDA can “implement
these objectives through the most effective and efficient controls that can be devised.”
...
59
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
Nor is it surprising that such a statutory delegation of power could lead after many
years to an assertion of jurisdiction that the 1938 legislators might not have expected.
Such a possibility is inherent in the very nature of a broad delegation. In 1938, it may well
have seemed unlikely that the FDA would ever bring cigarette manufacturers within the
FDCA’s statutory language by proving that cigarettes produce chemical changes in the
body and that the makers “intended” their product chemically to affect the body’s
“structure” or “function.” Or, back then, it may have seemed unlikely that, even assuming
such proof, the FDA actually would exercise its discretion to regulate so popular a product.
But it should not have seemed unlikely that, assuming the FDA decided to regulate
and proved the particular jurisdictional prerequisites, the courts would rule such a
jurisdictional assertion fully authorized. . . .
II
***
C
The majority nonetheless reaches the “inescapable conclusion” that the language
and structure of the FDCA as a whole “simply do not fit” the kind of public health problem
that tobacco creates. That is because, in the majority’s view, the FDCA requires the FDA to
ban outright “dangerous” drugs or devices (such as cigarettes); yet, the FDA concedes that
an immediate and total cigarette-sale ban is inappropriate. . . .
First, the statute’s language does not restrict the FDA’s remedial powers in this
way. . . . [T]he FDCA’s “device” provisions explicitly grant the FDA wide remedial
discretion. For example, where the FDA cannot “otherwise” obtain “reasonable
assurance” of a device’s “safety and effectiveness,” the agency may restrict by regulation
a product’s “sale, distribution, or use” upon “such . . . conditions as the Secretary may
prescribe.” § 360j(e)(1) (emphasis added). And the statutory section that most clearly
addresses the FDA’s power to ban (entitled “Banned devices”) says that, where a device
presents “an unreasonable and substantial risk of illness or injury,” the Secretary “may”—
not must—“initiate a proceeding . . . to make such device a banned device.” § 360f(a)
(emphasis added).
. . . . It is true, as the majority contends, that “the FDCA requires the FDA to place all
devices” in “one of three classifications” and that Class III devices require “pre market
approval.” . . . [But] it is not entirely clear from the statute’s text that a Class III
categorization would require the FDA affirmatively to withdraw from the market
dangerous devices, such as cigarettes, which are already widely distributed. . . .
60
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
Noting that the FDCA requires banning a “misbranded” drug, the majority also points
to 21 U.S.C. § 352(j), which deems a drug or device “misbranded” if “it is dangerous to
health when used” as “prescribed, recommended, or suggested in the labeling.” . . . But
this “misbranding” language is not determinative, for it permits the FDA to conclude that a
drug or device is not “dangerous to health” and that it does have “adequate” directions
when regulated so as to render it as harmless as possible. And surely the agency can
determine that a substance is comparatively “safe” (not “dangerous”) whenever it would
be less dangerous to make the product available (subject to regulatory requirements) than
suddenly to withdraw it from the market. . . .
In my view, where linguistically permissible, we should interpret the FDCA in light of
Congress’ overall desire to protect health. That purpose requires a flexible interpretation
that both permits the FDA to take into account the realities of human behavior and allows
it, in appropriate cases, to choose from its arsenal of statutory remedies. A statute so
interpreted easily “fit[s]” this, and other, drug- and device-related health problems.
III
In the majority’s view, laws enacted since 1965 require us to deny jurisdiction,
whatever the FDCA might mean in their absence. But why? Do those laws contain
language barring FDA jurisdiction? The majority must concede that they do not. Do they
contain provisions that are inconsistent with the FDA’s exercise of jurisdiction? With one
exception, the majority points to no such provision. . . . [O]ne cannot automatically infer
an anti-jurisdiction intent, as the majority does, for the later statutes are both (and
similarly) consistent with quite a different congressional desire, namely, the intent to
proceed without interfering with whatever authority the FDA otherwise may have
possessed.
***
V
***
[O]ne might claim that courts, when interpreting statutes, should assume in close
cases that a decision with “enormous social consequences,” should be made by
democratically elected Members of Congress rather than by unelected agency
administrators. If there is such a background canon of interpretation, however, I do not
believe it controls the outcome here.
Insofar as the decision to regulate tobacco reflects the policy of an administration, it
is a decision for which that administration, and those politically elected officials who
61
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
support it, must (and will) take responsibility. And the very importance of the decision
taken here, as well as its attendant publicity, means that the public is likely to be aware of
it and to hold those officials politically accountable. Presidents, just like Members of
Congress, are elected by the public. Indeed, the President and Vice President are the only
public officials whom the entire Nation elects. I do not believe that an administrative
agency decision of this magnitude—one that is important, conspicuous, and
controversial—can escape the kind of public scrutiny that is essential in any democracy.
And such a review will take place whether it is the Congress or the Executive Branch that
makes the relevant decision. . . .
STATUTORY INTERPRETATION LESSONS 13–16
Both the majority and the dissent used a variety of rules of statutory interpretation. What
are they? Here are the prominent ones that we have not yet discussed in detail:
Lesson 13: The Whole Act Rule. You already encountered a similar lesson before (lesson 8)
but it is worth repeating here using this new label. This rule maintains that the individual
provisions of a statute (like the definitions of “drug” and “drug delivery device”) must be read in
light of the entire statute. The majority holds that cigarettes can’t possibly be covered by the act
because otherwise they’d be “misbranded,” because they are not ever safe and effective for their
intended use. And if they are misbranded, they would have to be withdrawn from the market,
something Congress did not want and which the agency was not willing to do. Thus, the whole
statutory scheme arguably falls apart, which militates against finding that tobacco and cigarettes
fall within the statutory definition.
Lesson 14: The Whole Code Rule. This rule maintains that Congress legislates against the
backdrop of other legislation in the statute books, and that as a general matter the courts will try
to make all of Congress’s statutory acts cohere. In Brown & Williamson, the Court observed that
Congress had passed numerous other statutes with the intent that tobacco and cigarettes would
stay on the market. In light of these other statutory provisions, the majority argued, regulating
tobacco as a drug under the FDCA did not make sense because the FDA would have to withdraw
tobacco from the market.
Lesson 15: Implied Repeals Are Disfavored. A corollary of the whole code rule—the reason
courts try to make the various statutes cohere—is that implied repeals are generally disfavored in
the law. The Supreme Court has held, “The cardinal rule is that repeals by implication are not
favored. Where there are two acts upon the same subject, effect should be given to both if
possible.” Posadas v. Nat’l City Bank of New York, 296 U.S. 497, 503 (1936).
62
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
Lesson 16: The Elephants-in-Mouseholes Canon. Important to the majority’s analysis was
“the nature of the question presented.” Here, the question was one of major political and
economic significance. If Congress wanted the FDA to regulate tobacco, wouldn’t it have said
something—at least something more explicit? “[W]e are confident,” the Court held, “that
Congress could not have intended to delegate a decision of such economic and political
significance to an agency in so cryptic a fashion.” Justice Scalia colorfully described this canon of
interpretation in a subsequent opinion that cited both to Brown & Williamson and to MCI,
discussed in Brown & Williamson: Congress “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.” Whitman v. Am. Trucking Associations, 531 U.S. 457, 468 (2001). The
upshot is simply that if the meaning of a statute is open to doubt, the courts should presume that
Congress did not intend to make major changes to the law sub silentio. This canon may be the
best justification for the new Major Questions Doctrine, discussed later in this section.
NOTES AND QUESTIONS
1. Other tools? On what other rules of statutory interpretation did the two opinions
in Brown & Williamson rely?
2. Substantive canons. What other canons of interpretation should the courts
consider when interpreting regulatory statutes? Should it also consider substantive
canons, like the rule of lenity or the rule of
constitutional avoidance? In Solid Waste Agency
of Northern Cook County v. United States Army
RULE OF LENITY: The
rule that provides that courts should
Corps of Engineers, 531 U.S. 159 (2001), the
interpret ambiguity in criminal statutes in
Supreme Court dealt with an EPA interpretation
favor of defendants.
of the Clean Water Act that was not clearly
prohibited by the statutory language, but which
would arguably stretch federal power to its outermost constitutional limits. “Where an
administrative interpretation of a statute invokes the outer limits of Congress’ power,” the
Court held, “we expect a clear indication that Congress intended that result.” Id. at 172.
Thus, the Court adopted a clear statement rule (like the elephants-in-mouseholes canon):
an agency could adopt such a regulation if Congress has explicitly delegated it authority to
do so; but the courts shouldn’t uphold such regulations if the statute is ambiguous, or
even if the best reading of the statute seems to require the regulations. A “clear”
statement is required.
In another case, the Court held that even though a regulation was a reasonable
interpretation of the statute that would ordinarily be entitled to deference, the regulation
63
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
raised serious First Amendment concerns and so the constitutional avoidance rule
trumped the Chevron doctrine. Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const.
Trades Council, 485 U.S. 568, 574–75 (1988). Thus, the agency had to choose the
regulation that did not raise serious constitutional concerns. Although decided under the
Chevron framework, the substantive canon of constitutional avoidance remains good law
with or without that framework.
3. “Major questions.” Go back to the elephants-in-mouseholes canon. The idea
behind this canon, again, is that Congress wouldn’t delegate to an agency authority to
decide questions of “major” political or economic
significance without saying so explicitly or at
least having an actual debate about it. Hence this
What is the connection
canon is also sometimes called the “major
between the “major questions” analysis,
question doctrine.” Is this canon rooted in
or the elephants-in-mouseholes canon,
nondelegation concerns? The premise seems to
and the nondelegation doctrine? We will
discuss the nondelegation doctrine in
be that Congress could delegate to an agency
more detail in the next chapter.
questions of major political and economic
significance if it wanted, it would just have to say
so clearly. But at least if Congress says so clearly, it will have made its own decision about
delegating such major questions. Thus, the canon does serve some nondelegation values.
See Cass R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315 (2000). In a statement
respecting the denial of certiorari in the case Paul v. United States, Justice Kavanaugh
noted that the major questions doctrine had served to enforce nondelegation values,
calling it “a closely related statutory interpretation doctrine.” 140 S. Ct. 342 (2019). Is the
“major questions doctrine,” or the elephants-in-mouseholes canon, an ordinary linguistic
tool of statutory interpretation, or is it a substantive canon that advances a particular
constitutional value? These questions will be taken up again later in this section, where
the Court’s new major questions cases are addressed.
The following case is the next case in which the Court confronted a potential “major
question”: Massachusetts v. EPA, where the question was whether EPA had to decide
whether carbon dioxide emissions contributed global climate change and, if it did
conclude as much, whether it had to regulate such emissions from motor vehicles.
Massachusetts v. EPA
549 U.S. 497 (2007)
64
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
JUSTICE STEVENS delivered the opinion of the Court.
A well-documented rise in global temperatures has coincided with a significant
increase in the concentration of carbon dioxide in the atmosphere. Respected scientists
believe the two trends are related. For when carbon dioxide is released into the
atmosphere, it acts like the ceiling of a greenhouse, trapping solar energy and retarding
the escape of reflected heat. It is therefore a species—the most important species—of a
“greenhouse gas.”
Calling global warming “the most pressing environmental challenge of our time,” a
group of States, local governments, and private organizations alleged in a petition for
certiorari that the Environmental Protection Agency (EPA) has abdicated its responsibility
under the Clean Air Act to regulate the emissions of four greenhouse gases, including
carbon dioxide. Specifically, petitioners asked us to answer two questions concerning the
meaning of § 202(a)(1) of the Act: whether EPA has the statutory authority to regulate
greenhouse gas emissions from new motor vehicles; and if so, whether its stated reasons
for refusing to do so are consistent with the statute.
In response, EPA, supported by 10 intervening States and six trade associations,
correctly argued that we may not address those two questions unless at least one
petitioner has standing to invoke our jurisdiction under Article III of the Constitution.
Notwithstanding the serious character of that jurisdictional argument and the absence of
any conflicting decisions construing § 202(a)(1), the unusual importance of the underlying
issue persuaded us to grant the writ.
I
Section 202(a)(1) of the Clean Air Act provides:
“The [EPA] Administrator shall by regulation prescribe (and from time to
time revise) in accordance with the provisions of this section, standards
applicable to the emission of any air pollutant from any class or classes of new
motor vehicles or new motor vehicle engines, which in his judgment cause, or
contribute to, air pollution which may reasonably be anticipated to endanger
public health or welfare . . . .”
The Act defines “air pollutant” to include “any air pollution agent or combination of
such agents, including any physical, chemical, biological, radioactive . . . substance or
matter which is emitted into or otherwise enters the ambient air.” § 7602(g). “Welfare” is
also defined broadly: among other things, it includes “effects on . . . weather . . . and
climate.” § 7602(h).
65
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
When Congress enacted these provisions, the study of climate change was in its
infancy. In 1959, shortly after the U.S. Weather Bureau began monitoring atmospheric
carbon dioxide levels, an observatory in Mauna Loa, Hawaii, recorded a mean level of 316
parts per million. This was well above the highest carbon dioxide concentration—no more
than 300 parts per million—revealed in the 420,000-year-old ice-core record. By the time
Congress drafted § 202(a)(1) in 1970, carbon dioxide levels had reached 325 parts per
million.
In the late 1970’s, the Federal Government began devoting serious attention to the
possibility that carbon dioxide emissions associated with human activity could provoke
climate change. In 1978, Congress enacted the National Climate Program Act, 92 Stat. 601,
which required the President to establish a program to “assist the Nation and the world to
understand and respond to natural and man-induced climate processes and their
implications.” . . .
Congress next addressed the issue in 1987, when it enacted the Global Climate
Protection Act, 101 Stat. 1407. Finding that “manmade pollution—the release of carbon
dioxide, chlorofluorocarbons, methane, and other trace gases into the atmosphere—may
be producing a long-term and substantial increase in the average temperature on Earth,”
Congress directed EPA to propose to Congress a “coordinated national policy on global
climate change,” and ordered the Secretary of State to work “through the channels of
multilateral diplomacy” and coordinate diplomatic efforts to combat global warming.
Congress emphasized that “ongoing pollution and deforestation may be contributing now
to an irreversible process” and that “[n]ecessary actions must be identified and
implemented in time to protect the climate.”
Meanwhile, the scientific understanding of climate change progressed. In 1990, the
Intergovernmental Panel on Climate Change (IPCC), a multinational scientific body
organized under the auspices of the United Nations, published its first comprehensive
report on the topic. Drawing on expert opinions from across the globe, the IPCC concluded
that “emissions resulting from human activities are substantially increasing the
atmospheric concentrations of . . . greenhouse gases [which] will enhance the greenhouse
effect, resulting on average in an additional warming of the Earth’s surface.” . . .
II
On October 20, 1999, a group of 19 private organizations filed a rulemaking petition
asking EPA to regulate “greenhouse gas emissions from new motor vehicles under § 202
of the Clean Air Act.” Petitioners maintained that 1998 was the “warmest year on record”;
that carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are “heat trapping
66
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
greenhouse gases”; that greenhouse gas emissions have significantly accelerated climate
change; and that the IPCC’s 1995 report warned that “carbon dioxide remains the most
important contributor to [manmade] forcing of climate change.” The petition further
alleged that climate change will have serious adverse effects on human health and the
environment. As to EPA’s statutory authority, the petition observed that the Agency itself
had already confirmed that it had the power to regulate carbon dioxide. In 1998, Jonathan
Z. Cannon, then EPA’s general counsel, prepared a legal opinion concluding that “CO2
emissions are within the scope of EPA’s authority to regulate,” even as he recognized that
EPA had so far declined to exercise that authority. Cannon’s successor, Gary S. Guzy,
reiterated that opinion before a congressional committee just two weeks before the
rulemaking petition was filed.
Fifteen months after the petition’s submission, EPA requested public comment on
“all the issues raised in [the] petition,” adding a “particular” request for comments on
“any scientific, technical, legal, economic or other aspect of these issues that may be
relevant to EPA’s consideration of this petition.” EPA received more than 50,000
comments over the next five months.
Before the close of the comment period, the White House sought “assistance in
identifying the areas in the science of climate change where there are the greatest
certainties and uncertainties” from the National Research Council, asking for a response
“as soon as possible.” The result was a 2001 report titled Climate Change Science: An
Analysis of Some Key Questions (NRC Report), which, drawing heavily on the 1995 IPCC
report, concluded that “[g]reenhouse gases are accumulating in Earth’s atmosphere as a
result of human activities, causing surface air temperatures and subsurface ocean
temperatures to rise. Temperatures are, in fact, rising.”
On September 8, 2003, EPA entered an order denying the rulemaking petition. The
Agency gave two reasons for its decision: (1) that contrary to the opinions of its former
general counsels, the Clean Air Act does not authorize EPA to issue mandatory regulations
to address global climate change; and (2) that even if the Agency had the authority to set
greenhouse gas emission standards, it would be unwise to do so at this time.
In concluding that it lacked statutory authority over greenhouse gases, EPA observed
that Congress “was well aware of the global climate change issue when it last
comprehensively amended the [Clean Air Act] in 1990,” yet it declined to adopt a
proposed amendment establishing binding emissions limitations. Congress instead chose
to authorize further investigation into climate change. EPA further reasoned that
Congress’ “specially tailored solutions to global atmospheric issues”—in particular, its
1990 enactment of a comprehensive scheme to regulate pollutants that depleted the
67
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
ozone layer, see 42 U.S.C. §§ 7671–7671q—counseled against reading the general
authorization of § 202(a)(1) to confer regulatory authority over greenhouse gases.
EPA stated that it was “urged on in this view” by this Court’s decision in FDA v. Brown
& Williamson Tobacco Corp., 529 U.S. 120 (2000). In that case, relying on “tobacco[’s]
unique political history,” we invalidated the Food and Drug Administration’s reliance on its
general authority to regulate drugs as a basis for asserting jurisdiction over an “industry
constituting a significant portion of the American economy.”
EPA reasoned that climate change had its own “political history”: Congress designed
the original Clean Air Act to address local air pollutants rather than a substance that “is
fairly consistent in its concentration throughout the world’s atmosphere”; declined in
1990 to enact proposed amendments to force EPA to set carbon dioxide emission
standards for motor vehicles; and addressed global climate change in other legislation.
Because of this political history, and because imposing emission limitations on greenhouse
gases would have even greater economic and political repercussions than regulating
tobacco, EPA was persuaded that it lacked the power to do so. In essence, EPA concluded
that climate change was so important that unless Congress spoke with exacting specificity,
it could not have meant the Agency to address it.
Having reached that conclusion, EPA believed it followed that greenhouse gases
cannot be “air pollutants” within the meaning of the Act. . . . The Agency bolstered this
conclusion by explaining that if carbon dioxide were an air pollutant, the only feasible
method of reducing tailpipe emissions would be to improve fuel economy. But because
Congress has already created detailed mandatory fuel economy standards subject to
Department of Transportation (DOT) administration, the Agency concluded that EPA
regulation would either conflict with those standards or be superfluous.
Even assuming that it had authority over greenhouse gases, EPA explained in detail
why it would refuse to exercise that authority. . . . Given that residual uncertainty
[regarding the causal connection between increased CO2 concentrations and changing
temperatures—Ed.], EPA concluded that regulating greenhouse gas emissions would be
unwise.
The Agency furthermore characterized any EPA regulation of motor-vehicle
emissions as a “piecemeal approach” to climate change, and stated that such regulation
would conflict with the President’s “comprehensive approach” to the problem. . . .
According to EPA, unilateral EPA regulation of motor-vehicle greenhouse gas emissions
might also hamper the President’s ability to persuade key developing countries to reduce
greenhouse gas emissions.
68
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
***
IV
[In part IV of the Court’s opinion, it finds that Massachusetts has Article III standing
sufficient for judicial review. That part of the Court’s opinion is addressed in Chapter 8.D,
infra, on standing.—Ed.].
V
The scope of our review of the merits of the statutory issues is narrow. As we have
repeated time and again, an agency has broad discretion to choose how best to marshal
its limited resources and personnel to carry out its delegated responsibilities. See Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–845 (1984). That
discretion is at its height when the agency decides not to bring an enforcement action.
Therefore, in Heckler v. Chaney, 470 U.S. 821 (1985), we held that an agency’s refusal to
initiate enforcement proceedings is not ordinarily subject to judicial review. Some debate
remains, however, as to the rigor with which we review an agency’s denial of a petition for
rulemaking.
There are key differences between a denial of a petition for rulemaking and an
agency’s decision not to initiate an enforcement action. See American Horse Protection
Assn., Inc. v. Lyng, 812 F.2d 1, 3–4 (D.C. Cir. 1987). In contrast to nonenforcement
decisions, agency refusals to initiate rulemaking “are less frequent, more apt to involve
legal as opposed to factual analysis, and subject to special formalities, including a public
explanation.” Id. at 4; see also 5 U.S.C. § 555(e). They moreover arise out of denials of
petitions for rulemaking which (at least in the circumstances here) the affected party had
an undoubted procedural right to file in the first instance. Refusals to promulgate rules are
thus susceptible to judicial review, though such review is “extremely limited” and “highly
deferential.” National Customs Brokers & Forwarders Assn. of America, Inc. v. United
States, 883 F.2d 93, 96 (D.C. Cir. 1989).
EPA concluded in its denial of the petition for rulemaking that it lacked authority
under 42 U.S.C. § 7521(a)(1) to regulate new vehicle emissions because carbon dioxide is
not an “air pollutant” as that term is defined in § 7602. In the alternative, it concluded
that even if it possessed authority, it would decline to do so because regulation would
conflict with other administration priorities. . . .
VI
On the merits, the first question is whether § 202(a)(1) of the Clean Air Act
authorizes EPA to regulate greenhouse gas emissions from new motor vehicles in the
69
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
event that it forms a “judgment” that such emissions contribute to climate change. We
have little trouble concluding that it does. In relevant part, § 202(a)(1) provides that EPA
“shall by regulation prescribe . . . standards applicable to the emission of any air pollutant
from any class or classes of new motor vehicles or new motor vehicle engines, which in
[the Administrator’s] judgment cause, or contribute to, air pollution which may reasonably
be anticipated to endanger public health or welfare.” 42 U.S.C. § 7521(a)(1). Because EPA
believes that Congress did not intend it to regulate substances that contribute to climate
change, the agency maintains that carbon dioxide is not an “air pollutant” within the
meaning of the provision.
The statutory text forecloses EPA’s reading. The Clean Air Act’s sweeping definition of
“air pollutant” includes “any air pollution agent or combination of such agents, including
any physical, chemical . . . substance or matter which is emitted into or otherwise enters
the ambient air . . . .” § 7602(g) (emphasis added). On its face, the definition embraces all
airborne compounds of whatever stripe, and underscores that intent through the
repeated use of the word “any.” Carbon dioxide, methane, nitrous oxide, and
hydrofluorocarbons are without a doubt “physical [and] chemical . . . substance [s] which
[are] emitted into . . . the ambient air.” The statute is unambiguous.
Rather than relying on statutory text, EPA invokes postenactment congressional
actions and deliberations it views as tantamount to a congressional command to refrain
from regulating greenhouse gas emissions. Even if such postenactment legislative history
could shed light on the meaning of an otherwise-unambiguous statute, EPA never
identifies any action remotely suggesting that Congress meant to curtail its power to treat
greenhouse gases as air pollutants. That subsequent Congresses have eschewed enacting
binding emissions limitations to combat global warming tells us nothing about what
Congress meant when it amended § 202(a)(1) in 1970 and 1977. And unlike EPA, we have
no difficulty reconciling Congress’ various efforts to promote interagency collaboration
and research to better understand climate change with the Agency’s pre-existing mandate
to regulate “any air pollutant” that may endanger the public welfare. Collaboration and
research do not conflict with any thoughtful regulatory effort; they complement it.
EPA’s reliance on Brown & Williamson Tobacco Corp., 529 U.S. 120, is similarly
misplaced. . . . However much a ban on tobacco products clashed with the “common
sense” intuition that Congress never meant to remove those products from circulation,
there is nothing counterintuitive to the notion that EPA can curtail the emission of
substances that are putting the global climate out of kilter. . . .
EPA has not identified any congressional action that conflicts in any way with the
regulation of greenhouse gases from new motor vehicles. Even if it had, Congress could
70
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
not have acted against a regulatory “backdrop” of disclaimers of regulatory authority.
Prior to the order that provoked this litigation, EPA had never disavowed the authority to
regulate greenhouse gases, and in 1998 it in fact affirmed that it had such authority. . . .
EPA finally argues that it cannot regulate carbon dioxide emissions from motor
vehicles because doing so would require it to tighten mileage standards, a job (according
to EPA) that Congress has assigned to DOT. But that DOT sets mileage standards in no way
licenses EPA to shirk its environmental responsibilities. EPA has been charged with
protecting the public’s “health” and “welfare,” 42 U.S.C. § 7521(a)(1), a statutory
obligation wholly independent of DOT’s mandate to promote energy efficiency. The two
obligations may overlap, but there is no reason to think the two agencies cannot both
administer their obligations and yet avoid inconsistency.
While the Congresses that drafted § 202(a)(1) might not have appreciated the
possibility that burning fossil fuels could lead to global warming, they did understand that
without regulatory flexibility, changing circumstances and scientific developments would
soon render the Clean Air Act obsolete. The broad language of § 202(a)(1) reflects an
intentional effort to confer the flexibility necessary to forestall such obsolescence.
Because greenhouse gases fit well within the Clean Air Act’s capacious definition of “air
pollutant,” we hold that EPA has the statutory authority to regulate the emission of such
gases from new motor vehicles.
VII
The alternative basis for EPA’s decision—that even if it does have statutory authority
to regulate greenhouse gases, it would be unwise to do so at this time—rests on
reasoning divorced from the statutory text. While the statute does condition the exercise
of EPA’s authority on its formation of a “judgment,” 42 U.S.C. § 7521(a)(1), that judgment
must relate to whether an air pollutant “cause[s], or contribute[s] to, air pollution which
may reasonably be anticipated to endanger public health or welfare.” Put another way,
the use of the word “judgment” is not a roving license to ignore the statutory text. It is but
a direction to exercise discretion within defined statutory limits.
If EPA makes a finding of endangerment, the Clean Air Act requires the Agency to
regulate emissions of the deleterious pollutant from new motor vehicles. Ibid. (stating
that “[EPA] shall by regulation prescribe . . . standards applicable to the emission of any air
pollutant from any class or classes of new motor vehicles”). EPA no doubt has significant
latitude as to the manner, timing, content, and coordination of its regulations with those
of other agencies. But once EPA has responded to a petition for rulemaking, its reasons for
action or inaction must conform to the authorizing statute. Under the clear terms of the
71
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse
gases do not contribute to climate change or if it provides some reasonable explanation as
to why it cannot or will not exercise its discretion to determine whether they do. . . .
Nor can EPA avoid its statutory obligation by noting the uncertainty surrounding
various features of climate change and concluding that it would therefore be better not to
regulate at this time. If the scientific uncertainty is so profound that it precludes EPA from
making a reasoned judgment as to whether greenhouse gases contribute to global
warming, EPA must say so. That EPA would prefer not to regulate greenhouse gases
because of some residual uncertainty . . . is irrelevant. The statutory question is whether
sufficient information exists to make an endangerment finding.
In short, EPA has offered no reasoned explanation for its refusal to decide whether
greenhouse gases cause or contribute to climate change. Its action was therefore
“arbitrary, capricious, . . . or otherwise not in accordance with law.” 42 U.S.C.
§ 7607(d)(9)(A). We need not and do not reach the question whether on remand EPA
must make an endangerment finding, or whether policy concerns can inform EPA’s actions
in the event that it makes such a finding. We hold only that EPA must ground its reasons
for action or inaction in the statute.
[CHIEF JUSTICE ROBERTS’ dissent on standing is presented in Chapter 8.D.—Ed.]
JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JUSTICE THOMAS, and JUSTICE ALITO join,
dissenting.
I join THE CHIEF JUSTICE’s opinion in full, and would hold that this Court has no
jurisdiction to decide this case because petitioners lack standing. The Court having
decided otherwise, it is appropriate for me to note my dissent on the merits.
I
A
The provision of law at the heart of this case is § 202(a)(1) of the Clean Air Act (CAA
or Act), which provides that the Administrator of the Environmental Protection Agency
(EPA) “shall by regulation prescribe . . . standards applicable to the emission of any air
pollutant from any class or classes of new motor vehicles or new motor vehicle engines,
which in his judgment cause, or contribute to, air pollution which may reasonably be
anticipated to endanger public health or welfare.” 42 U.S.C. § 7521(a)(1) (emphasis
added). As the Court recognizes, the statute “condition[s] the exercise of EPA’s authority
on its formation of a ‘judgment.’ ” There is no dispute that the Administrator has made no
such judgment in this case.
72
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
The question thus arises: Does anything require the Administrator to make a
“judgment” whenever a petition for rulemaking is filed? Without citation of the statute or
any other authority, the Court says yes. Why is that so? . . . Where does the CAA say that
the EPA Administrator is required to come to a decision on this question whenever a
rulemaking petition is filed? The Court points to no such provision because none exists.
Instead, the Court invents a multiple-choice question that the EPA Administrator
must answer when a petition for rulemaking is filed. The Administrator must exercise his
judgment in one of three ways: (a) by concluding that the pollutant does cause, or
contribute to, air pollution that endangers public welfare (in which case EPA is required to
regulate); (b) by concluding that the pollutant does not cause, or contribute to, air
pollution that endangers public welfare (in which case EPA is not required to regulate); or
(c) by “provid[ing] some reasonable explanation as to why it cannot or will not exercise its
discretion to determine whether” greenhouse gases endanger public welfare (in which
case EPA is not required to regulate).
I am willing to assume, for the sake of argument, that the Administrator’s discretion
in this regard is not entirely unbounded—that if he has no reasonable basis for deferring
judgment he must grasp the nettle at once. The Court, however, with no basis in text or
precedent, rejects all of EPA’s stated “policy judgments” as not “amount[ing] to a
reasoned justification,” effectively narrowing the universe of potential reasonable bases
to a single one: Judgment can be delayed only if the Administrator concludes that “the
scientific uncertainty is [too] profound.” The Administrator is precluded from concluding
for other reasons “that it would . . . be better not to regulate at this time.” Such other
reasons—perfectly valid reasons—were set forth in the Agency’s statement. . . .
When the Administrator makes a judgment whether to regulate greenhouse gases,
that judgment must relate to whether they are air pollutants that “cause, or contribute to,
air pollution which may reasonably be anticipated to endanger public health or welfare.”
42 U.S.C. § 7521(a)(1). But the statute says nothing at all about the reasons for which the
Administrator may defer making a judgment—the permissible reasons for deciding not to
grapple with the issue at the present time. Thus, the various “policy” rationales that the
Court criticizes are not “divorced from the statutory text,” except in the sense that the
statutory text is silent, as texts are often silent about permissible reasons for the exercise
of agency discretion. The reasons EPA gave are surely considerations executive agencies
regularly take into account (and ought to take into account) when deciding whether to
consider entering a new field: the impact such entry would have on other Executive
Branch programs and on foreign policy. There is no basis in law for the Court’s imposed
limitation.
73
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
EPA’s interpretation of the discretion conferred by the statutory reference to “its
judgment” is not only reasonable, it is the most natural reading of the text. . . . As the
Administrator acted within the law in declining to make a “judgment” for the policy
reasons above set forth, I would uphold the decision to deny the rulemaking petition on
that ground alone.
B
Even on the Court’s own terms, however, the same conclusion follows. As mentioned
above, the Court gives EPA the option of determining that the science is too uncertain to
allow it to form a “judgment” as to whether greenhouse gases endanger public
welfare. . . . But EPA has said precisely that—and at great length, based on information
contained in a 2001 report by the National Research Council (NRC) entitled Climate
Change Science: An Analysis of Some Key Questions: “As the NRC noted in its report, . . . a
[causal] linkage between the buildup of [GHGs] in the atmosphere and the observed
climate changes during the 20th century cannot be unequivocally established. . . .”
I simply cannot conceive of what else the Court would like EPA to say.
II
A
Even before reaching its discussion of the word “judgment,” the Court makes
another significant error when it concludes that Ҥ 202(a)(1) of the Clean Air Act
authorizes EPA to regulate greenhouse gas emissions from new motor vehicles in the
event that it forms a ‘judgment’ that such emissions contribute to climate change.” For
such authorization, the Court relies on what it calls “the Clean Air Act’s capacious
definition of ‘air pollutant.’ ”
“Air pollutant” is defined by the Act as “any air pollution agent or combination of
such agents, including any physical, chemical, . . . substance or matter which is emitted
into or otherwise enters the ambient air.” 42 U.S.C. § 7602(g). The Court is correct that
“[c]arbon dioxide, methane, nitrous oxide, and hydrofluorocarbons,” fit within the second
half of that definition: They are “physical, chemical, . . . substance[s] or matter which [are]
emitted into or otherwise ente[r] the ambient air.” But the Court mistakenly believes this
to be the end of the analysis. In order to be an “air pollutant” under the Act’s definition,
the “substance or matter [being] emitted into . . . the ambient air” must also meet the
first half of the definition—namely, it must be an “air pollution agent or combination of
such agents.” The Court simply pretends this half of the definition does not exist.
74
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
The Court’s analysis faithfully follows the argument advanced by petitioners, which
focuses on the word “including” in the statutory definition of “air pollutant.” As that
argument goes, anything that follows the word “including” must necessarily be a subset of
whatever precedes it. Thus, if greenhouse gases qualify under the phrase following the
word “including,” they must qualify under the phrase preceding it. Since greenhouse gases
come within the capacious phrase “any physical, chemical, . . . substance or matter which
is emitted into or otherwise enters the ambient air,” they must also be “air pollution
agent[s] or combination[s] of such agents,” and therefore meet the definition of “air
pollutant[s].”
That is certainly one possible interpretation of the statutory definition. The word
“including” can indeed indicate that what follows will be an “illustrative” sampling of the
general category that precedes the word. Often, however, the examples standing alone
are broader than the general category, and must be viewed as limited in light of that
category. The Government provides a helpful (and unanswered) example: “The phrase
‘any American automobile, including any truck or minivan,’ would not naturally be
construed to encompass a foreign-manufactured [truck or] minivan.” The general principle
enunciated—that the speaker is talking about American automobiles—carries forward to
the illustrative examples (trucks and minivans), and limits them accordingly, even though
in isolation they are broader. Congress often uses the word “including” in this manner. In
28 U.S.C. § 1782(a), for example, it refers to “a proceeding in a foreign or international
tribunal, including criminal investigations conducted before formal accusation.” Certainly
this provision would not encompass criminal investigations underway in a domestic
tribunal.
In short, the word “including” does not require the Court’s (or the petitioners’) result.
It is perfectly reasonable to view the definition of “air pollutant” in its entirety: An air
pollutant can be “any physical, chemical, . . . substance or matter which is emitted into or
otherwise enters the ambient air,” but only if it retains the general characteristic of being
an “air pollution agent or combination of such agents.” This is precisely the conclusion EPA
reached: “[A] substance does not meet the CAA definition of ‘air pollutant’ simply because
it is a ‘physical, chemical, . . . substance or matter which is emitted into or otherwise
enters the ambient air.’ It must also be an ‘air pollution agent.’ ” 68 Fed. Reg. 52929, n. 3.
See also id., at 52928 (“The root of the definition indicates that for a substance to be an
‘air pollutant,’ it must be an ‘agent’ of ‘air pollution’ ”). Once again, in the face of textual
ambiguity, the Court’s application of Chevron deference to EPA s interpretation of the
75
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
word “including” is nowhere to be found.23 Evidently, the Court defers only to those
reasonable interpretations that it favors.
B
Using (as we ought to) EPA’s interpretation of the definition of “air pollutant,” we
must next determine whether greenhouse gases are “agent[s]” of “air pollution.” If so, the
statute would authorize regulation; if not, EPA would lack authority.
Unlike “air pollutants,” the term “air pollution” is not itself defined by the CAA; thus,
once again we must accept EPA’s interpretation of that ambiguous term, provided its
interpretation is a “permissible construction of the statute.” Chevron, 467 U.S. at 843. . . .
EPA began with the commonsense observation that the “[p]roblems associated with
atmospheric concentrations of CO2” bear little resemblance to what would naturally be
termed “air pollution”:
“. . . . Since the inception of the Act, EPA has used these provisions to address
air pollution problems that occur primarily at ground level or near the surface of
the earth. For example, national ambient air quality standards (NAAQS)
established under CAA section 109 address concentrations of substances in the
ambient air and the related public health and welfare problems. This has meant
setting NAAQS for concentrations of ozone, carbon monoxide, particulate
matter and other substances in the air near the surface of the earth, not higher
in the atmosphere . . . . CO2, by contrast, is fairly consistent in concentration
throughout the world’s atmosphere up to approximately the lower
stratosphere.” [68 Fed. Reg.] at 52926–52927.
In other words, regulating the buildup of CO2 and other greenhouse gases in the
upper reaches of the atmosphere, which is alleged to be causing global climate change, is
not akin to regulating the concentration of some substance that is polluting the air.
We need look no further than the dictionary for confirmation that this interpretation
of “air pollution” is eminently reasonable. The definition of “pollute,” of course, is “[t]o
make or render impure or unclean.” Webster’s New International Dictionary 1910 (2d
ed.1949). And the first three definitions of “air” are as follows: (1) “[t]he invisible,
odorless, and tasteless mixture of gases which surrounds the earth”; (2) “[t]he body of the
earth’s atmosphere; esp., the part of it near the earth, as distinguished from the upper
2 Not only is EPA’s interpretation reasonable, it is far more plausible than the Court’s alternative. As the Court correctly points
out, “all airborne compounds of whatever stripe” would qualify as “physical, chemical, . . . substance[s] or matter which [are]
emitted into or otherwise ente[r] the ambient air,” 42 U.S.C. § 7602(g). It follows that everything airborne, from Frisbees to
flatulence, qualifies as an “air pollutant.” This reading of the statute defies common sense.
76
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
rarefied part”; (3) “[a] portion of air or of the air considered with respect to physical
characteristics or as affecting the senses.” Id. at 54. EPA’s conception of “air pollution”—
focusing on impurities in the “ambient air” “at ground level or near the surface of the
earth”—is perfectly consistent with the natural meaning of that term. . . .
Once again, the Court utterly fails to explain why this interpretation is incorrect, let
alone so unreasonable as to be unworthy of Chevron deference. . . .
The Court’s alarm over global warming may or may not be justified, but it ought not
distort the outcome of this litigation. This is a straightforward administrative-law case, in
which Congress has passed a malleable statute giving broad discretion, not to us but to an
executive agency. No matter how important the underlying policy issues at stake, this
Court has no business substituting its own desired outcome for the reasoned judgment of
the responsible agency.
NOTES AND QUESTIONS
1. Summary. There were two questions at issue in Massachusetts v. EPA: whether
the carbon dioxide was a “pollutant” within the meaning of the statute, and whether the
Administrator had to make a judgment in the first place about the risks associated with
known air pollutants. The majority held that carbon dioxide was a pollutant under the
statute, and the Administrator had to make a judgment about that pollutant. Because the
judgment the Administrator made in this case was based on an erroneous understanding
of the statutory meaning of “pollutant,” the Court remanded to the agency to make a
judgment about the health impact of carbon dioxide emissions based on its impact on
climate change. The dissenters argued the statute was ambiguous at best as to both
issues, and seemed to think carbon dioxide, which was prevalent throughout the higher
levels of the atmosphere, was not a pollutant within the meaning of the statute. Who was
right?
2. Elephants and mouseholes. Was the Court in Massachusetts v. EPA consistent
with the Court in Brown & Williamson? Did the Court faithfully apply the “major
questions” canon? Note how the majority began its opinion: it observed that global
warming was “the most pressing environmental challenge of our time.” Given the political
and economic importance of the carbon regulations, would Congress have been more
explicit if it had intended to give authority to the EPA to regulate carbon emissions? On
the other hand, Congress did give the EPA authority to regulate “pollutants.” And isn’t
carbon dioxide a pollutant, even if the Congress that enacted the statute was unaware of
77
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
its impact on the climate? Is the elephants-and-mouseholes canon too hard to apply
because what is an elephant, and what is a mousehole, is too much in the eye of the
beholder? On the other hand, aren’t all interpretive tools somewhat in the eye of the
individual judge?
3. Follow-on case: UARG v. EPA. In the aftermath of the Court’s decision in
Massachusetts v. EPA, the EPA decided during the administration of President Barack
Obama to regulate greenhouse gases as permitted by the Court’s opinion. Recall that
Massachusetts dealt with regulations of motor vehicle emissions. In another provision of
the Clean Air Act, the EPA must regulate major stationary sources, like power plants, that
emit pollution. The only problem was that the Act’s definition of a “major emitting facility”
subject to the relevant regulations was any stationary source that emitted at least,
depending on the context, 100 or 250 tons of pollution a year. This is an astronomical
amount of pollution for traditional pollutants like sulfur dioxide, and so the number of
such sources regulated by the EPA is relatively small, but 100 or 250 tons are minuscule
amounts for carbon dioxide emissions. If the EPA regulated any stationary source that
emitted at least 100 or 250 tons of carbon dioxide, then EPA would get to regulate almost
the entire economy. That didn’t sound right or even feasible, and so the EPA promulgated
a rule providing that it would regulate stationary sources that emitted at least 10,000 tons
of carbon dioxide.
In Utility Air Regulatory Group v. EPA, excerpted more fully below, the Court
invalidated the regulation, holding that carbon dioxide simply could not fall within the
meaning of “pollutant” in the relevant portion of the statute. 573 U.S. 302 (2014). The
Court harkened back to Brown & Williamson: First, as a matter of statutory interpretation,
carbon dioxide could not fall within the definition of air pollutant in this part of the
statute, otherwise the entire statutory framework would fall apart. Second, the Court held
that the EPA’s interpretation was also unreasonable
because it would bring about an enormous and transformative expansion in
EPA’s regulatory authority without clear congressional authorization. When an
agency claims to discover in a long-extant statute an unheralded power to
regulate “a significant portion of the American economy,” Brown & Williamson,
529 U.S. at 159, we typically greet its announcement with a measure of
skepticism. We expect Congress to speak clearly if it wishes to assign to an
agency decisions of vast “economic and political significance.”
573 U.S. at 324. When you consider the Major Questions Doctrine later in this section,
think about whether cases like UARG and Brown & Williamson provide support for it, or
whether the more recent cases go beyond these older ones.
78
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
Utility Air Regulatory Group v. EPA
573 U.S. 302 (2014)
JUSTICE SCALIA announced the judgment of the Court and delivered the opinion of the
Court with respect to Parts I and II[.A].
Acting pursuant to the Clean Air Act, the Environmental Protection Agency recently
set standards for emissions of “greenhouse gases” (substances it believes contribute to
“global climate change”) from new motor vehicles. We must decide whether it was
permissible for EPA to determine that its motor-vehicle greenhouse-gas regulations
automatically triggered permitting requirements under the Act for stationary sources that
emit greenhouse gases.
I. Background
A. Stationary-Source Permitting
The Clean Air Act regulates pollution-generating emissions from both stationary
sources, such as factories and powerplants, and moving sources, such as cars, trucks, and
aircraft. This litigation concerns permitting obligations imposed on stationary sources
under Titles I and V of the Act.
Title I charges EPA with formulating national ambient air quality standards (NAAQS)
for air pollutants. To date, EPA has issued NAAQS for six pollutants: sulfur dioxide,
particulate matter, nitrogen dioxide, carbon monoxide, ozone, and lead. States have
primary responsibility for implementing the NAAQS by developing “State implementation
plans.” A State must designate every area within its borders as “attainment,”
“nonattainment,” or “unclassifiable” with respect to each NAAQS, and the State’s
implementation plan must include permitting programs for stationary sources that vary
according to the classification of the area where the source is or is proposed to be located.
Stationary sources in areas designated attainment or unclassifiable are subject to the
Act’s provisions relating to “Prevention of Significant Deterioration” (PSD). . . . It is
unlawful to construct or modify a “major emitting facility” in “any area to which [the PSD
program] applies” without first obtaining a permit. To qualify for a permit, the facility
must not cause or contribute to the violation of any applicable air-quality standard, and it
must comply with emissions limitations that reflect the “best available control
technology” (or BACT) for “each pollutant subject to regulation under” the Act. The Act
defines a “major emitting facility” as any stationary source with the potential to emit 250
tons per year of “any air pollutant” (or 100 tons per year for certain types of sources). . . .
79
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
In addition . . . , Title V of the Act makes it unlawful to operate any “major source,”
wherever located, without a comprehensive operating permit. . . .
B. EPA’s Greenhouse–Gas Regulations
In 2007, the Court held that Title II of the Act “authorize[d] EPA to regulate
greenhouse gas emissions from new motor vehicles” if the Agency “form[ed] a ‘judgment’
that such emissions contribute to climate change.” Massachusetts v. EPA, 549 U.S. 497,
528. In response to that decision, EPA embarked on a course of regulation resulting in
“the single largest expansion in the scope of the [Act] in its history.” Clean Air Act
Handbook, at xxi.
EPA first asked the public, in a notice of proposed rulemaking, to comment on how
the Agency should respond to Massachusetts. In doing so, it explained that regulating
greenhouse-gas emissions from motor vehicles could have far-reaching consequences for
stationary sources. Under EPA’s view, once greenhouse gases became regulated under
any part of the Act, the PSD and Title V permitting requirements would apply to all
stationary sources with the potential to emit greenhouse gases in excess of the statutory
thresholds: 100 tons per year under Title V, and 100 or 250 tons per year under the PSD
program depending on the type of source. 73 Fed.Reg. 44420, 44498, 44511 (2008).
Because greenhouse-gas emissions tend to be “orders of magnitude greater” than
emissions of conventional pollutants, EPA projected that numerous small sources not
previously regulated under the Act would be swept into the PSD program and Title V,
including “smaller industrial sources,” “large office and residential buildings, hotels, large
retail establishments, and similar facilities.” Id., at 44498–44499. The Agency warned that
this would constitute an “unprecedented expansion of EPA authority that would have a
profound effect on virtually every sector of the economy and touch every household in
the land,” yet still be “relatively ineffective at reducing greenhouse gas concentrations.”
Id., at 44355.
In 2009, EPA announced its determination regarding the danger posed by motorvehicle greenhouse-gas emissions. EPA found that greenhouse-gas emissions from new
motor vehicles contribute to elevated atmospheric concentrations of greenhouse gases,
which endanger public health and welfare by fostering global “climate change.” It
denominated a “single air pollutant” the “combined mix” of six greenhouse gases that it
identified as “the root cause of human-induced climate change”: carbon dioxide,
methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. A
source’s greenhouse-gas emissions would be measured in “carbon dioxide equivalent
units” (CO2e), which would be calculated based on each gas’s “global warming potential.”
80
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
Next, EPA issued its “final decision” regarding the prospect that motor-vehicle
greenhouse-gas standards would trigger stationary-source permitting requirements. EPA
announced that beginning on the effective date of its greenhouse-gas standards for motor
vehicles, stationary sources would be subject to the PSD program and Title V on the basis
of their potential to emit greenhouse gases. As expected, EPA in short order promulgated
greenhouse-gas emission standards for passenger cars, light-duty trucks, and mediumduty passenger vehicles to take effect on January 2, 2011.
EPA then announced steps it was taking to “tailor” the PSD program and Title V to
greenhouse gases. 75 Fed.Reg. 31514 (hereinafter Tailoring Rule). Those steps were
necessary, it said, because the PSD program and Title V were designed to regulate “a
relatively small number of large industrial sources,” and requiring permits for all sources
with greenhouse-gas emissions above the statutory thresholds would radically expand
those programs, making them both unadministrable and “unrecognizable to the Congress
that designed” them. EPA nonetheless rejected calls to exclude greenhouse gases entirely
from those programs, asserting that the Act is not “ambiguous with respect to the need to
cover [greenhouse-gas] sources under either the PSD or title V program.” Instead, EPA
adopted a “phase-in approach” that it said would “appl[y] PSD and title V at threshold
levels that are as close to the statutory levels as possible, and do so as quickly as possible,
at least to a certain point.”
The phase-in, EPA said, would consist of at least three steps. During Step 1, from
January 2 through June 30, 2011, no source would become newly subject to the PSD
program or Title V solely on the basis of its greenhouse-gas emissions; however, sources
required to obtain permits anyway because of their emission of conventional pollutants
(so-called “anyway” sources) would need to comply with BACT for greenhouse gases if
they emitted those gases in significant amounts, defined as at least 75,000 tons per year
CO2e. During Step 2, from July 1, 2011, through June 30, 2012, sources with the potential
to emit at least 100,000 tons per year CO2e of greenhouse gases would be subject to PSD
and Title V permitting for their construction and operation and to PSD permitting for
modifications that would increase their greenhouse-gas emissions by at least 75,000 tons
per year CO2e. At Step 3, beginning on July 1, 2013, EPA said it might (or might not)
further reduce the permitting thresholds (though not below 50,000 tons per year CO2e),
and it might (or might not) establish permanent exemptions for some sources. Beyond
Step 3, EPA promised to complete another round of rulemaking by April 30, 2016, in which
it would “take further action to address small sources,” which might (or might not) include
establishing permanent exemptions. . . .
II. Analysis
81
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
This litigation presents two distinct challenges to EPA’s stance on greenhouse-gas
permitting for stationary sources. First, we must decide whether EPA permissibly
determined that a source may be subject to the PSD and Title V permitting requirements
on the sole basis of the source’s potential to emit greenhouse gases. Second, we must
decide whether EPA permissibly determined that a source already subject to the PSD
program because of its emission of conventional pollutants (an “anyway” source) may be
required to limit its greenhouse-gas emissions by employing the “best available control
technology” for greenhouse gases. . . .
We review EPA’s interpretations of the Clean Air Act using the standard set forth in
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–843
(1984). . . .
A. The PSD and Title V Triggers
We first decide whether EPA permissibly interpreted the statute to provide that a
source may be required to obtain a PSD or Title V permit on the sole basis of its potential
greenhouse-gas emissions.
1
EPA thought its conclusion that a source’s greenhouse-gas emissions may necessitate
a PSD or Title V permit followed from the Act’s unambiguous language. The Court of
Appeals agreed and held that the statute “compelled” EPA’s interpretation. We disagree.
The statute compelled EPA’s greenhouse-gas-inclusive interpretation with respect to
neither the PSD program nor Title V.
The Court of Appeals reasoned by way of a flawed syllogism: Under Massachusetts,
the general, Act-wide definition of “air pollutant” includes greenhouse gases; the Act
requires permits for major emitters of “any air pollutant”; therefore, the Act requires
permits for major emitters of greenhouse gases. The conclusion follows from the premises
only if the air pollutants referred to in the permit-requiring provisions (the minor premise)
are the same air pollutants encompassed by the Act-wide definition as interpreted
in Massachusetts (the major premise). Yet no one—least of all EPA—endorses that
proposition, and it is obviously untenable.
The Act-wide definition says that an air pollutant is “any air pollution agent or
combination of such agents, including any physical, chemical, biological, [or] radioactive
. . . substance or matter which is emitted into or otherwise enters the ambient air.”
§ 7602(g). In Massachusetts, the Court held that the Act-wide definition includes
greenhouse gases because it is all-encompassing; it “embraces all airborne compounds of
82
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
whatever stripe.” But where the term “air pollutant” appears in the Act’s operative
provisions, EPA has routinely given it a narrower, context-appropriate meaning.
That is certainly true of the provisions that require PSD and Title V permitting for
major emitters of “any air pollutant.” . . . Those interpretations were appropriate: It is
plain as day that the Act does not envision an elaborate, burdensome permitting process
for major emitters of steam, oxygen, or other harmless airborne substances. It takes some
cheek for EPA to insist that it cannot possibly give “air pollutant” a reasonable, contextappropriate meaning in the PSD and Title V contexts when it has been doing precisely that
for decades.
Nor are those the only places in the Act where EPA has inferred from statutory
context that a generic reference to air pollutants does not encompass every substance
falling within the Act-wide definition. Other examples abound:
The Act authorizes EPA to enforce new source performance standards (NSPS) against
a pre-existing source if, after promulgation of the standards, the source undergoes a
physical or operational change that increases its emission of “any air pollutant.” EPA
interprets that provision as limited to air pollutants for which EPA has promulgated new
source performance standards. . . .
The Act requires certain sources of air pollutants that interfere with visibility to
undergo retrofitting if they have the potential to emit 250 tons per year of “any
pollutant.” EPA interprets that provision as limited to visibility-impairing air pollutants.
Although these limitations are nowhere to be found in the Act-wide definition, in
each instance EPA has concluded—as it has in the PSD and Title V context—that the
statute is not using “air pollutant” in Massachusetts’ broad sense to mean any airborne
substance whatsoever.
Massachusetts did not invalidate all these longstanding constructions. . . .
Massachusetts does not strip EPA of authority to exclude greenhouse gases from the
class of regulable air pollutants under other parts of the Act where their inclusion would
be inconsistent with the statutory scheme. The Act-wide definition to which the Court
gave a “sweeping” and “capacious” interpretation is not a command to regulate, but a
description of the universe of substances EPA may consider regulating under the Act’s
operative provisions. Massachusetts does not foreclose the Agency’s use of statutory
context to infer that certain of the Act’s provisions use “air pollutant” to denote not every
conceivable airborne substance, but only those that may sensibly be encompassed within
the particular regulatory program. . . .
83
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
To be sure, Congress’s profligate use of “air pollutant” where what is meant is
obviously narrower than the Act-wide definition is not conducive to clarity. One ordinarily
assumes “ ‘that identical words used in different parts of the same act are intended to
have the same meaning.’ ” In this respect (as in countless others), the Act is far from
a chef d’oeuvre of legislative draftsmanship. But we, and EPA, must do our best, bearing in
mind the “ ‘fundamental canon of statutory construction that the words of a statute must
be read in their context and with a view to their place in the overall statutory
scheme.’ ” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000). As we
reiterated the same day we decided Massachusetts, the presumption of consistent usage
“ ‘readily yields’ ” to context, and a statutory term—even one defined in the statute—
“may take on distinct characters from association with distinct statutory objects calling for
different implementation strategies.” . . .
In sum, there is no insuperable textual barrier to EPA’s interpreting “any air
pollutant” in the permitting triggers of PSD and Title V to encompass only pollutants
emitted in quantities that enable them to be sensibly regulated at the statutory
thresholds, and to exclude those atypical pollutants that, like greenhouse gases, are
emitted in such vast quantities that their inclusion would radically transform those
programs and render them unworkable as written.
2
Having determined that EPA was mistaken in thinking the Act compelled a
greenhouse-gas-inclusive interpretation of the PSD and Title V triggers, we next consider
the Agency’s alternative position that its interpretation was justified as an exercise of its
“discretion” to adopt “a reasonable construction of the statute.” We conclude that EPA’s
interpretation is not permissible. . . .
EPA itself has repeatedly acknowledged that applying the PSD and Title V permitting
requirements to greenhouse gases would be inconsistent with—in fact, would
overthrow—the Act’s structure and design. In the Tailoring Rule, EPA described the
calamitous consequences of interpreting the Act in that way. Under the PSD program,
annual permit applications would jump from about 800 to nearly 82,000; annual
administrative costs would swell from $12 million to over $1.5 billion; and decade-long
delays in issuing permits would become common, causing construction projects to grind
to a halt nationwide. The picture under Title V was equally bleak: The number of sources
required to have permits would jump from fewer than 15,000 to about 6.1 million; annual
administrative costs would balloon from $62 million to $21 billion; and collectively the
newly covered sources would face permitting costs of $147 billion. Moreover, “the great
majority of additional sources brought into the PSD and title V programs would be small
84
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
sources that Congress did not expect would need to undergo permitting.” EPA stated that
these results would be so “contrary to congressional intent,” and would so “severely
undermine what Congress sought to accomplish,” that they necessitated as much as a
1,000-fold increase in the permitting thresholds set forth in the statute.
Like EPA, we think it beyond reasonable debate that requiring permits for sources
based solely on their emission of greenhouse gases at the 100- and 250-tons-per-year
levels set forth in the statute would be “incompatible” with “the substance of Congress’
regulatory scheme.” Brown & Williamson, 529 U.S., at 156. A brief review of the relevant
statutory provisions leaves no doubt that the PSD program and Title V are designed to
apply to, and cannot rationally be extended beyond, a relative handful of large sources
capable of shouldering heavy substantive and procedural burdens. . . .
EPA’s interpretation is also unreasonable because it would bring about an enormous
and transformative expansion in EPA’s regulatory authority without clear congressional
authorization. When an agency claims to discover in a long-extant statute an unheralded
power to regulate “a significant portion of the American economy,” Brown & Williamson,
529 U.S. at 159, we typically greet its announcement with a measure of skepticism. We
expect Congress to speak clearly if it wishes to assign to an agency decisions of vast
“economic and political significance.” Id. at 160; see also MCI Telecommunications Corp. v.
American Telephone & Telegraph Co., 512 U.S. 218, 231 (1994); Industrial Union Dept.,
AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 645–646 (1980) (plurality opinion).
The power to require permits for the construction and modification of tens of thousands,
and the operation of millions, of small sources nationwide falls comfortably within the
class of authorizations that we have been reluctant to read into ambiguous statutory
text. Moreover, in EPA’s assertion of that authority, we confront a singular situation: an
agency laying claim to extravagant statutory power over the national economy while at
the same time strenuously asserting that the authority claimed would render the statute
“unrecognizable to the Congress that designed” it. Since, as we hold above, the statute
does not compel EPA’s interpretation, it would be patently unreasonable—not to say
outrageous—for EPA to insist on seizing expansive power that it admits the statute is not
designed to grant.
3
EPA thought that despite the foregoing problems, it could make its interpretation
reasonable by adjusting the levels at which a source’s greenhouse-gas emissions would
oblige it to undergo PSD and Title V permitting. Although the Act, in no uncertain terms,
requires permits for sources with the potential to emit more than 100 or 250 tons per
85
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
year of a relevant pollutant, EPA in its Tailoring Rule wrote a new threshold of 100,000
tons per year for greenhouse gases. . . .
We conclude that EPA’s rewriting of the statutory thresholds was impermissible and
therefore could not validate the Agency’s interpretation of the triggering provisions. An
agency has no power to “tailor” legislation to bureaucratic policy goals by rewriting
unambiguous statutory terms. Agencies exercise discretion only in the interstices created
by statutory silence or ambiguity; they must always “ ‘give effect to the unambiguously
expressed intent of Congress.’ ” It is hard to imagine a statutory term less ambiguous than
the precise numerical thresholds at which the Act requires PSD and Title V permitting. . . .
In the Tailoring Rule, EPA asserts newfound authority to regulate millions of small
sources—including retail stores, offices, apartment buildings, shopping centers, schools,
and churches—and to decide, on an ongoing basis and without regard for the thresholds
prescribed by Congress, how many of those sources to regulate. We are not willing to
stand on the dock and wave goodbye as EPA embarks on this multiyear voyage of
discovery. We reaffirm the core administrative-law principle that an agency may not
rewrite clear statutory terms to suit its own sense of how the statute should operate. . . .
B. BACT for “Anyway” Sources
For the reasons we have given, EPA overstepped its statutory authority when it
decided that a source could become subject to PSD or Title V permitting by reason of its
greenhouse-gas emissions. But what about “anyway” sources, those that would need
permits based on their emissions of more conventional pollutants (such as particulate
matter)? . . . .
The question before us is whether EPA’s decision to require BACT for greenhouse
gases emitted by sources otherwise subject to PSD review is, as a general matter, a
permissible interpretation of the statute under Chevron. We conclude that it is. [To the
student: how would you decide this portion of the case without Chevron deference?—Ed.]
The text of the BACT provision is far less open-ended than the text of the PSD and
Title V permitting triggers. It states that BACT is required “for each pollutant subject to
regulation under this chapter” (i.e., the entire Act) . . . .
Even if the text were not clear, applying BACT to greenhouse gases is not so
disastrously unworkable, and need not result in such a dramatic expansion of agency
authority, as to convince us that EPA’s interpretation is unreasonable. We are not talking
about extending EPA jurisdiction over millions of previously unregulated entities, but
86
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
about moderately increasing the demands EPA (or a state permitting authority) can make
of entities already subject to its regulation. . . .
Our narrow holding is that nothing in the statute categorically prohibits EPA from
interpreting the BACT provision to apply to greenhouse gases emitted by “anyway”
sources. . . .
Justice BREYER, with whom Justice GINSBURG, Justice SOTOMAYOR, and Justice
KAGAN, join, concurring in part and dissenting in part.
. . . . The interpretive difficulty in these cases arises out of the definition’s use of the
phrase “two hundred fifty tons per year or more,” which I will call the “250 tpy threshold.”
When applied to greenhouse gases, 250 tpy is far too low a threshold. As the Court
explains, tens of thousands of stationary sources emit large quantities of one greenhouse
gas, carbon dioxide. To apply the programs at issue here to all those sources would be
extremely expensive and burdensome, counterproductive, and perhaps impossible; it
would also contravene Congress’s intent that the programs’ coverage be limited to those
large sources whose emissions are substantial enough to justify the regulatory burdens.
The EPA recognized as much, and it addressed the problem by issuing a regulation—the
Tailoring Rule—that purports to raise the coverage threshold for greenhouse gases from
the statutory figure of 250 tpy to 100,000 tpy in order to keep the programs’ coverage
limited to “a relatively small number of large industrial sources.”
The Tailoring Rule solves the practical problems that would have been caused by the
250 tpy threshold. But what are we to do about the statute’s language? The statute
specifies a definite number—250, not 100,000—and it says that facilities that are covered
by that number must meet the program’s requirements. The statute says nothing about
agency discretion to change that number. What is to be done? How, given the statute’s
language, can the EPA exempt from regulation sources that emit more than 250 but less
than 100,000 tpy of greenhouse gases (and that also do not emit other regulated
pollutants at threshold levels)? . . .
I do not agree with the Court that the only way to avoid an absurd or otherwise
impermissible result in these cases is to create an atextual greenhouse gas exception to
the phrase “any air pollutant.” . . . As a linguistic matter, one can just as easily read an
implicit exception for small-scale greenhouse gas emissions into the phrase “any source”
as into the phrase “any air pollutant.” And given the purposes of the PSD program and the
Act as a whole, as well as the specific roles of the different parts of the statutory
definition, finding flexibility in “any source” is far more sensible than the Court’s route of
finding it in “any air pollutant.”
87
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
The implicit exception I propose reads almost word for word the same as the Court’s,
except that the location of the exception has shifted. . . . [T]he Court reads the definition
of “major emitting facility” as if it referred to “any source with the potential to emit two
hundred fifty tons per year or more of any air pollutant except for those air pollutants,
such as carbon dioxide, with respect to which regulation at that threshold would be
impractical or absurd or would sweep in smaller sources that Congress did not mean to
cover.” I would simply move the implicit exception, which I’ve italicized, so that it applies
to “source” rather than “air pollutant”: “any source with the potential to emit two
hundred fifty tons per year or more of any air pollutant except for those sources, such as
those emitting unmanageably small amounts of greenhouse gases, with respect to which
regulation at that threshold would be impractical or absurd or would sweep in smaller
sources that Congress did not mean to cover.”
From a legal, administrative, and functional perspective—that is, from a perspective
that assumes that Congress was not merely trying to arrange words on paper but was
seeking to achieve a real-world purpose—my way of reading the statute is the more
sensible one. For one thing, my reading is consistent with the specific purpose underlying
the 250 tpy threshold specified by the statute. The purpose of that number was not to
prevent the regulation of dangerous air pollutants that cannot be sensibly regulated at
that particular threshold, though that is the effect that the Court’s reading gives the
threshold. Rather, the purpose was to limit the PSD program’s obligations to larger
sources while exempting the many small sources whose emissions are low enough that
imposing burdensome regulatory requirements on them would be senseless. . . .
[Justice Breyer then refers to several pieces of legislative history indicating
Congress’s intent to limit the program “to large industrial sources.”—Ed.]
An implicit source-related exception would serve this statutory purpose while going
no further. The implicit exception that the Court reads into the phrase “any air pollutant,”
by contrast, goes well beyond the limited congressional objective. . . .
The Court’s decision to read greenhouse gases out of the PSD program drains the Act
of its flexibility and chips away at our decision in Massachusetts. . . . It is anomalous to
read the Act to require the EPA to regulate air pollutants that pose previously unforeseen
threats to human health and welfare where “250 tons per year” is a sensible regulatory
line but not where, by chemical or regulatory happenstance, a higher line must be drawn.
...
In addition, the interpretation I propose leaves the EPA with the sort of discretion as
to interstitial matters that Congress likely intended it to retain. My interpretation gives the
88
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
EPA nothing more than the authority to exempt sources from regulation insofar as the
Agency reasonably determines that applying the PSD program to them would expand the
program so much as to contravene Congress’s intent. That sort of decision, which involves
the Agency’s technical expertise and administrative experience, is the kind of decision that
Congress typically leaves to the agencies to make. . . .
Last, but by no means least, a source-related exception advances the Act’s overall
purpose. That broad purpose, as set forth at the beginning of the statute, is “to protect
and enhance the quality of the Nation’s air resources so as to promote the public health
and welfare and the productive capacity of its population.” . . .
[In an omitted opinion, Justices Alito and Thomas reiterate that Massachusetts v. EPA
was wrongly decided. But assuming that decision was correct, they argue that the
majority was correct to interpret “any air pollutant” flexibly for purposes of Title V and the
PSD program, but wrong to interpret the phrase inflexibly for purposes of the BACT
program for anyway sources.—Ed.]
STATUTORY INTERPRETATION LESSON 17
The Court’s analysis brings us to our next statutory interpretation lesson, which is related to
lesson 8 on context and structure and lesson 13 on the whole act rule:
Lesson 17: Presumption of Consistent Usage, but This Presumption Yields to Context.
There is no good name for this rule, and perhaps it is simply a variant of rules 8 and 13, as just
noted. But here is how the Court put it in the UARG case:
One ordinarily assumes “ ‘that identical words used in different parts of the same act
are intended to have the same meaning.’ ” Environmental Defense v. Duke Energy
Corp., 549 U.S. 561, 574 (2007). . . . But we, and EPA, must do our best, bearing in
mind the “ ‘fundamental canon of statutory construction that the words of a statute
must be read in their context and with a view to their place in the overall statutory
scheme.’ ” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000). As we
reiterated the same day we decided Massachusetts, the presumption of consistent
usage “ ‘readily yields’ ” to context, and a statutory term—even one defined in the
statute—“may take on distinct characters from association with distinct statutory
objects calling for different implementation strategies.” Duke Energy, supra, at 574.
Utility Air Regulatory Group v. EPA, 573 U.S. 302, 319–20 (2014).
89
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
NOTES AND QUESTIONS
1. Statutory structure. All three of the previous cases have some commonalities.
They all involve potentially broad statutory terms—“drug” and “pollutant”—that may or
may not apply to a particular substance over which Congress might not have had
particular knowledge or a specific intent. They all involve statutes in which reading their
terms to include the substances in question might lead to odd results. And they all involve
matters of great political and economic importance today, but the matters might not have
been politically important in earlier decades because of a lack of knowledge about the
issue. Which of these interpretive tools and cues should be dispositive? Which are more
powerful? Should all be used, or only some?
2. More major questions. In both Brown & Williamson and UARG the majority
deployed a version of the elephants-in-mouseholes canon. As the next section reveals,
this canon has flowered into a full-fledged “doctrine,” raising the question whether that
doctrine remains a linguistic tool or a substantive canon the requires deviating from the
most natural reading of the statute. Before addressing this modern development,
however, the student may find it useful to know about the following cases, now probably
obsolete in relevant part but which contributed to the development of the doctrine.
City of Arlington v. FCC, 569 U.S. 290 (2013). This case involved provisions of the
Telecommunications Act of 1996 that required state or local governments to act on siting
applications for wireless towers and antennae “within a reasonable period of time after
the request is duly filed.” The Federal Communications Commission used its general
rulemaking authority to impose a 90-day time limit to approve collocation applications
and a 150-day limit on all other applications. The Court of Appeals held that the Chevron
framework applied to the threshold question whether the FCC possessed statutory
authority to adopt the 90- and 150-day timeframes. The question presented was “whether
a court should apply Chevron to an agency’s determination of its own jurisdiction.”
The majority held that Chevron deference applies to an agency’s interpretation of its
own jurisdiction, because there is no distinction (for Chevron purposes) between
jurisdictional and nonjurisdictional questions. Justice Scalia, writing for the majority, was
surely right that most of the time, there is no real distinction in this context because if an
agency is misinterpreting its statute, then it is exercising power in excess of statutory
authority. This can be understood as the agency exercising power beyond its jurisdiction,
or simply that it’s getting the statute wrong on the merits. There’s no difference.
Yet Chief Justice Roberts, in dissent, claimed that the term “jurisdictional” has a
much narrower meaning in this context—it’s simply the question of whether or not
90
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
Congress has conferred authority on the agency to administer a part of the statute. The
dispute in City of Arlington was whether the agency even had rulemaking authority to
implement the “reasonable time” requirement as applied to local governments. Is that
question distinct from the question of whether, assuming it has that authority, the agency
has properly interpreted this particular substantive provision of the statute? City of
Arlington also raised the issue of whether there are certain types of questions, like
jurisdictional ones, to which no deference should be afforded at all because they are too
important. Did Brown & Williamson involve a jurisdictional question? Or is Brown &
Williamson yet another example of how the jurisdictional question (does FDA have
authority to regulate tobacco) is indistinguishable from the question whether the agency
has properly interpreted the statute (is tobacco a drug)?
City of Arlington is notable for another reason: the discussion between Chief Justice
Roberts and Justice Scalia over the constitutionality of the modern administrative state.
The Chief Justice begins his dissent as follows: “Although modern administrative agencies
fit most comfortably within the Executive Branch, as a practical matter they exercise
legislative power, by promulgating regulations with the force of law; executive power, by
policing compliance with those regulations; and judicial power, by adjudicating
enforcement actions and imposing sanctions on those found to have violated their rules.
The accumulation of these powers in the same hands is not an occasional or isolated
exception to the constitutional plan; it is a central feature of modern American
government.”
Justice Scalia responded in footnote 4 of the Court’s majority opinion as follows: “THE
CHIEF JUSTICE’s discomfort with the growth of agency power is perhaps understandable. But
the dissent overstates when it claims that agencies exercise ‘legislative power’ and
‘judicial power.’ . . . Agencies make rules (‘Private cattle may be grazed on public lands X,
Y, and Z subject to certain conditions’) and conduct adjudications (‘This rancher’s grazing
permit is revoked for violation of the conditions’) and have done so since the beginning of
the Republic. These activities take ‘legislative’ and ‘judicial’ forms, but they are exercises
of—indeed, under our constitutional structure they must be exercises of—the ‘executive
Power.’ ” Who had the better of the argument?
King v. Burwell, 576 U.S. 473 (2015). In King, the Court confronted the question of
whether, in the Affordable Care Act, the term “exchange established by a State” meant a
health-care exchange established by a State or by the federal government. Chief Justice
Roberts did not apply the Chevron framework. He cited FDA v. Brown & Williamson for the
proposition that “[i]n extraordinary cases, . . . there may be reason to hesitate before
concluding that Congress has intended such an implicit delegation” to the agency to
91
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
interpret statutory ambiguities. The Court held: “The tax credits are among the Act’s key
reforms, involving billions of dollars in spending each year and affecting the price of health
insurance for millions of people. Whether those credits are available on Federal Exchanges
is thus a question of deep ‘economic and political significance’ that is central to this
statutory scheme; had Congress wished to assign that question to an agency, it surely
would have done so expressly.” The Court therefore interpreted the statute for itself,
affording not even Skidmore deference.
The previous cases were all decided under the Chevron framework. Even before the
Supreme Court abandoned Chevron in Loper Bright, the Court developed what it calls the
“Major Questions Doctrine,” which it deployed without regard to deference. The next two
sections describe and then “debate” this doctrine. Are the Court’s more recent cases
consistent with these older cases, or do they do something new?
3.
The Major Questions Doctrine
As noted above, over the past two years, the Supreme Court has for the first time
formally labeled what it calls the “Major Questions Doctrine.” The following three cases
provide a sampling of the doctrine, and the debate surrounding it.
The first case involved the Occupational Safety and Health Administration’s “vaccine
or test mandate,” which would have imposed a requirement on employers with more
than 100 employees to demand their employees be either vaccinated against or regularly
tested for COVID-19. As you read, note that Chevron is not mentioned a single time in this
opinion. Consider also the majority’s and concurrence’s different uses of the “major
questions” doctrine at Step One, and constitutional avoidance as a canon of statutory
interpretation.
National Federation of Independent Business v. Department of
Labor, Occupational Safety and Health Administration
595 U.S. 109 (2022)
PER CURIAM:
The Secretary of Labor, acting through the Occupational Safety and Health
Administration, recently enacted a vaccine mandate for much of the Nation’s work force.
The mandate, which employers must enforce, applies to roughly 84 million workers,
covering virtually all employers with at least 100 employees. It requires that covered
92
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
workers receive a COVID-19 vaccine, and it pre-empts contrary state laws. The only
exception is for workers who obtain a medical test each week at their own expense and
on their own time, and also wear a mask each workday. OSHA has never before imposed
such a mandate. Nor has Congress. Indeed, although Congress has enacted significant
legislation addressing the COVID-19 pandemic, it has declined to enact any measure
similar to what OSHA has promulgated here.
Many States, businesses, and nonprofit organizations challenged OSHA’s rule in
Courts of Appeals across the country. The Fifth Circuit initially entered a stay. But when
the cases were consolidated before the Sixth Circuit, that court lifted the stay and allowed
OSHA’s rule to take effect. Applicants now seek emergency relief from this Court, arguing
that OSHA’s mandate exceeds its statutory authority and is otherwise unlawful. Agreeing
that applicants are likely to prevail, we grant their applications and stay the rule.
I
A
Congress enacted the Occupational Safety and Health Act in 1970. 84 Stat. 1590, 29
U.S.C. § 651 et seq. The Act created the Occupational Safety and Health Administration
(OSHA), which is part of the Department of Labor and under the supervision of its
Secretary. As its name suggests, OSHA is tasked with ensuring occupational safety—that
is, “safe and healthful working conditions.” § 651(b). It does so by enforcing occupational
safety and health standards promulgated by the Secretary. § 655(b). Such standards must
be “reasonably necessary or appropriate to provide safe or healthful employment.”
§ 652(8) (emphasis added). They must also be developed using a rigorous process that
includes notice, comment, and an opportunity for a public hearing. § 655(b).
The Act contains an exception to those ordinary notice-and-comment procedures for
“emergency temporary standards.” § 655(c)(1). Such standards may “take immediate
effect upon publication in the Federal Register.” They are permissible, however, only in
the narrowest of circumstances: the Secretary must 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.” Prior to the emergence of COVID-19,
the Secretary had used this power just nine times before (and never to issue a rule as
broad as this one). Of those nine emergency rules, six were challenged in court, and only
one of those was upheld in full.
B
93
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
On September 9, 2021, President Biden announced “a new plan to require more
Americans to be vaccinated.” Remarks on the COVID-19 Response and National
Vaccination Efforts, 2021 Daily Comp. of Pres. Doc. 775, p. 2. As part of that plan, the
President said that the Department of Labor would issue an emergency rule requiring all
employers with at least 100 employees “to ensure their workforces are fully vaccinated or
show a negative test at least once a week.” The purpose of the rule was to increase
vaccination rates at “businesses all across America.” In tandem with other planned
regulations, the administration’s goal was to impose “vaccine requirements” on “about
100 million Americans, two-thirds of all workers.”
After a 2-month delay, the Secretary of Labor issued the promised emergency
standard. 86 Fed. Reg. 61402 (2021). Consistent with President Biden’s announcement,
the rule applies to all who work for employers with 100 or more employees. There are
narrow exemptions for employees who work remotely “100 percent of the time” or who
“work exclusively outdoors,” but those exemptions are largely illusory. The Secretary has
estimated, for example, that only nine percent of landscapers and groundskeepers qualify
as working exclusively outside. The regulation otherwise operates as a blunt instrument. It
draws no distinctions based on industry or risk of exposure to COVID-19. Thus, most
lifeguards and linemen face the same regulations as do medics and meatpackers. OSHA
estimates that 84.2 million employees are subject to its mandate.
Covered employers must “develop, implement, and enforce a mandatory COVID19 vaccination policy.” Id., at 61402. The employer must verify the vaccination status of
each employee and maintain proof of it. The mandate does contain an “exception” for
employers that require unvaccinated workers to “undergo [weekly] COVID-19 testing and
wear a face covering at work in lieu of vaccination.” But employers are not required to
offer this option, and the emergency regulation purports to pre-empt state laws to the
contrary. Unvaccinated employees who do not comply with OSHA’s rule must be
“removed from the workplace.” And employers who commit violations face hefty fines: up
to $13,653 for a standard violation, and up to $136,532 for a willful one. 29 C.F.R.
§ 1903.15(d) (2021). . . .
II
The Sixth Circuit concluded that a stay of the rule was not justified. We disagree.
A
Applicants are likely to succeed on the merits of their claim that the Secretary lacked
authority to impose the mandate. Administrative agencies are creatures of statute. They
accordingly possess only the authority that Congress has provided. The Secretary has
94
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
ordered 84 million Americans to either obtain a COVID-19 vaccine or undergo weekly
medical testing at their own expense. This is no “everyday exercise of federal power.” It is
instead a significant encroachment into the lives—and health—of a vast number of
employees. “We expect Congress to speak clearly when authorizing an agency to exercise
powers of vast economic and political significance.” Alabama Assn. of
Realtors v. Department of Health and Human Servs., 594 U.S. ___, ___, 141 S.Ct. 2485,
2489 (2021) (per curiam) (internal quotation marks omitted). There can be little doubt
that OSHA’s mandate qualifies as an exercise of such authority.
The question, then, is whether the Act plainly authorizes the Secretary’s mandate. It
does not. The Act empowers the Secretary to set workplace safety standards, not broad
public health measures. Confirming the point, the Act’s provisions typically speak to
hazards that employees face at work. And no provision of the Act addresses public health
more generally, which falls outside of OSHA’s sphere of expertise.
The dissent protests that we are imposing “a limit found no place in the governing
statute.” Not so. It is the text of the agency’s Organic Act that repeatedly makes clear that
OSHA is charged with regulating “occupational” hazards and the safety and health of
“employees.” See, e.g., 29 U.S.C. §§ 652(8), 654(a)(2), 655(b)–(c).
The Solicitor General does not dispute that OSHA is limited to regulating “workrelated dangers.” She instead argues that the risk of contracting COVID-19 qualifies as
such a danger. We cannot agree. Although COVID-19 is a risk that occurs in many
workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at
home, in schools, during sporting events, and everywhere else that people gather. That
kind of universal risk is no different from the day-to-day dangers that all face from crime,
air pollution, or any number of communicable diseases. Permitting OSHA to regulate the
hazards of daily life—simply because most Americans have jobs and face those same risks
while on the clock—would significantly expand OSHA’s regulatory authority without clear
congressional authorization.
The dissent contends that OSHA’s mandate is comparable to a fire or sanitation
regulation imposed by the agency. But 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.” Contrary to the dissent’s contention, imposing a
vaccine mandate on 84 million Americans in response to a worldwide pandemic is simply
not “part of what the agency was built for.”
That is not to say OSHA lacks authority to regulate occupation-specific risks related to
COVID-19. Where the virus poses a special danger because of the particular features of an
95
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
employee’s job or workplace, targeted regulations are plainly permissible. We do not
doubt, for example, that OSHA could regulate researchers who work with the COVID-19
virus. So too could OSHA regulate risks associated with working in particularly crowded or
cramped environments. But the danger present in such workplaces differs in both degree
and kind from the everyday risk of contracting COVID-19 that all face. OSHA’s
indiscriminate approach fails to account for this crucial distinction—between occupational
risk and risk more generally—and accordingly the mandate takes on the character of a
general public health measure, rather than an “occupational safety or health
standard.” 29 U.S.C. § 655(b) (emphasis added). . . .
It is telling that OSHA, in its half century of existence, 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 “lack of historical precedent,” coupled with the
breadth of authority that the Secretary now claims, is a “telling indication” that the
mandate extends beyond the agency’s legitimate reach. Fee Enterprise Fund v. Public
Company Accounting Oversight Bd., 561 U.S. 477, 505 (2010). [This case on the removal
power is presented in Chapter 6.—Ed.] . . .
JUSTICE GORSUCH, with whom JUSTICE THOMAS and JUSTICE ALITO join, concurring.
The central question we face today is: Who decides? No one doubts that the COVID19 pandemic has posed challenges for every American. Or that our state, local, and
national governments all have roles to play in combating the disease. The only question is
whether an administrative agency in Washington, one charged with overseeing workplace
safety, may mandate the vaccination or regular testing of 84 million people. Or whether,
as 27 States before us submit, that work belongs to state and local governments across
the country and the people’s elected representatives in Congress. This Court is not a
public health authority. But it is charged with resolving disputes about which authorities
possess the power to make the laws that govern us under the Constitution and the laws of
the land.
I start with this Court’s precedents. . . . [T]his Court has established at least one firm
rule: “We expect Congress to speak clearly” if it wishes to assign to an executive agency
decisions “of vast economic and political significance.” Alabama Assn. of
Realtors v. Department of Health and Human Servs., 594 U.S. ___, ___, 141 S.Ct. 2485,
2489 (2021). We sometimes call this the major questions doctrine.
OSHA’s mandate fails that doctrine’s test. The agency claims the power to force 84
million Americans to receive a vaccine or undergo regular testing. By any measure, that is
a claim of power to resolve a question of vast national significance. Yet Congress has
96
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
nowhere clearly assigned so much power to OSHA. Approximately two years have passed
since this pandemic began; vaccines have been available for more than a year. Over that
span, Congress has adopted several major pieces of legislation aimed at combating COVID19. But Congress has chosen not to afford OSHA—or any federal agency—the authority to
issue a vaccine mandate. . . .
[OSHA] directs us to 29 U.S.C. § 655(c)(1). In that statutory subsection, Congress
authorized OSHA to issue “emergency” regulations upon determining that “employees are
exposed to grave danger from exposure to substances or agents determined to be toxic or
physically harmful” and “that such emergency standard[s] [are] necessary to protect
employees from such danger[s].” According to the agency, this provision supplies it with
“almost unlimited discretion “to mandate new nationwide rules in response to the
pandemic so long as those rules are “reasonably related” to workplace safety. 86 Fed. Reg.
61402, 61405 (2021).
The Court rightly applies the major questions doctrine and concludes that this lone
statutory subsection does not clearly authorize OSHA’s mandate. Section 655(c)(1) was
not adopted in response to the pandemic, but some 50 years ago at the time of OSHA’s
creation. Since then, OSHA has relied on it to issue only comparatively modest rules
addressing dangers uniquely prevalent inside the workplace, like asbestos and rare
chemicals. As the agency itself explained to a federal court less than two years ago, the
statute does “not authorize OSHA to issue sweeping health standards” that affect
workers’ lives outside the workplace. Brief for Department of Labor, In re: AFL-CIO, No.
20–1158, pp. 3, 33 (CADC 2020). Yet that is precisely what the agency seeks to do now—
regulate not just what happens inside the workplace but induce individuals to undertake a
medical procedure that affects their lives outside the workplace. Historically, such matters
have been regulated at the state level by authorities who enjoy broader and more general
governmental powers. Meanwhile, at the federal level, OSHA arguably is not even the
agency most associated with public health regulation. And in the rare instances when
Congress has sought to mandate vaccinations, it has done so expressly. E.g., 8 U.S.C.
§ 1182(a)(1)(A)(ii). We have nothing like that here.
Why does the major questions doctrine matter? It ensures that the national
government’s power to make the laws that govern us remains where Article I of the
Constitution says it belongs—with the people’s elected representatives. If administrative
agencies seek to regulate the daily lives and liberties of millions of Americans, the doctrine
says, they must at least be able to trace that power to a clear grant of authority from
Congress.
97
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
In this respect, the major questions doctrine is closely related to what is sometimes
called the nondelegation doctrine. Indeed, for decades courts have cited the
nondelegation doctrine as a reason to apply the major questions doctrine. E.g., Industrial
Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 645 (1980) (plurality
opinion). [This case is presented in Chapter 5.—Ed.] Both are designed to protect the
separation of powers and ensure that any new laws governing the lives of Americans are
subject to the robust democratic processes the Constitution demands.
The nondelegation doctrine ensures democratic accountability by preventing
Congress from intentionally delegating its legislative powers to unelected officials. . . . If
Congress could hand off all its legislative powers to unelected agency officials, it “would
dash the whole scheme” of our Constitution and enable intrusions into the private lives
and freedoms of Americans by bare edict rather than only with the consent of their
elected representatives. Department of Transportation v. Association of American
Railroads, 575 U.S. 43, 61 (2015) (Alito, J., concurring); see also M. McConnell, The
President Who Would Not Be King 326–335 (2020); I. Wurman, Nondelegation at the
Founding, 130 Yale L. J. 1490, 1502 (2021).
The major questions doctrine serves a similar function by guarding against
unintentional, oblique, or otherwise unlikely delegations of the legislative power.
Sometimes, Congress passes broadly worded statutes seeking to resolve important policy
questions in a field while leaving an agency to work out the details of implementation.
E.g., King v. Burwell, 576 U.S. 473, 485–486 (2015). Later, the agency may seek to exploit
some gap, ambiguity, or doubtful expression in Congress’s statutes to assume
responsibilities far beyond its initial assignment. The major questions doctrine guards
against this possibility by recognizing that Congress does not usually “hide elephants in
mouseholes.” Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 468 (2001). . . .
Whichever the doctrine, the point is the same. . . . [B]oth hold their lessons for
today’s case. On the one hand, OSHA claims the power to issue a nationwide mandate on
a major question but cannot trace its authority to do so to any clear congressional
mandate. On the other hand, if the statutory subsection the agency cites really did endow
OSHA with the power it asserts, that law would likely constitute an unconstitutional
delegation of legislative authority. Under OSHA’s reading, the law would afford it almost
unlimited discretion—and certainly impose no “specific restrictions” that “meaningfully
constrai[n]” the agency. . . .
JUSTICE BREYER, JUSTICE SOTOMAYOR, and JUSTICE KAGAN, dissenting.
98
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
Every day, COVID-19 poses grave dangers to the citizens of this country—and
particularly, to its workers. The disease has by now killed almost 1 million Americans and
hospitalized almost 4 million. It spreads by person-to-person contact in confined indoor
spaces, so causes harm in nearly all workplace environments. And in those environments,
more than any others, individuals have little control, and therefore little capacity to
mitigate risk. COVID-19, in short, is a menace in work settings. The proof is all around us:
Since the disease’s onset, most Americans have seen their workplaces transformed.
So the administrative agency charged with ensuring health and safety in workplaces
did what Congress commanded it to: It took action to address COVID-19’s continuing
threat in those spaces. The Occupational Safety and Health Administration (OSHA) issued
an emergency temporary standard (Standard), requiring either vaccination or masking and
testing, to protect American workers. The Standard falls within the core of the agency’s
mission: to “protect employees” from “grave danger” that comes from “new hazards” or
exposure to harmful agents. 29 U.S.C. § 655(c)(1). OSHA estimates—and there is no
ground for disputing—that the Standard will save over 6,500 lives and prevent over
250,000 hospitalizations in six months’ time. 86 Fed. Reg. 61408 (2021).
Yet today the Court issues a stay that prevents the Standard from taking effect. In our
view, the Court’s order seriously misapplies the applicable legal standards. And in so
doing, it stymies the Federal Government’s ability to counter the unparalleled threat that
COVID-19 poses to our Nation’s workers. Acting outside of its competence and without
legal basis, the Court displaces the judgments of the Government officials given the
responsibility to respond to workplace health emergencies. We respectfully dissent.
***
The applicants are not “likely to prevail” under any proper view of the law. OSHA’s
rule perfectly fits the language of the applicable statutory provision. Once again, that
provision commands—not just enables, but commands—OSHA to issue an emergency
temporary standard whenever it determines “(A) 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 (B) that such emergency standard is necessary to
protect employees from such danger.” 29 U.S.C. § 655(c)(1). Each and every part of that
provision demands that, in the circumstances here, OSHA act to prevent workplace harm.
The virus that causes COVID-19 is a “new hazard” as well as a “physically harmful”
“agent.” [Citing dictionary.—Ed.] The virus also poses a “grave danger” to millions of
employees. As of the time OSHA promulgated its rule, more than 725,000 Americans had
99
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
died of COVID-19 and millions more had been hospitalized. . . . And because the disease
spreads in shared indoor spaces, it presents heightened dangers in most workplaces.
Finally, the Standard is “necessary” to address the danger of COVID-19. OSHA based
its rule, requiring either testing and masking or vaccination, on a host of studies and
government reports showing why those measures were of unparalleled use in limiting the
threat of COVID-19 in most workplaces. The agency showed, in meticulous detail, that
close contact between infected and uninfected individuals spreads the disease; that “[t]he
science of transmission does not vary by industry or by type of workplace”; that testing,
mask wearing, and vaccination are highly effective—indeed, essential—tools for reducing
the risk of transmission, hospitalization, and death; and that unvaccinated employees of
all ages face a substantially increased risk from COVID-19 as compared to their vaccinated
peers. In short, OSHA showed that no lesser policy would prevent as much death and
injury from COVID-19 as the Standard would.
OSHA’s determinations are “conclusive if supported by substantial evidence.” 29
U.S.C. § 655(f). Judicial review under that test is deferential, as it should be. OSHA
employs, in both its enforcement and health divisions, numerous scientists, doctors, and
other experts in public health, especially as it relates to work environments. Their
decisions, we have explained, should stand so long as they are supported by “ ‘such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’ ” [citation omitted] (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474,
477 (1951)). Given the extensive evidence in the record supporting OSHA’s determinations
about the risk of COVID-19 and the efficacy of masking, testing, and vaccination, a court
could not conclude that the Standard fails substantial-evidence review.
The Court does not dispute that the statutory terms just discussed, read in the
ordinary way, authorize this Standard. . . . 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. In other
words, the Court argues that OSHA cannot keep workplaces safe from COVID-19 because
the agency (as it readily acknowledges) has no power to address the disease outside the
work setting.
But nothing in the Act’s text supports the majority’s limitation on OSHA’s regulatory
authority. . . . Contra the majority, it is indifferent to whether a hazard in the workplace is
also found elsewhere. The statute generally charges OSHA with “assur[ing] so far as
possible . . . safe and healthful working conditions.” 29 U.S.C. § 651(b). That provision
authorizes regulation to protect employees from all hazards present in the workplace—or,
100
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
at least, all hazards in part created by conditions there. It does not matter whether those
hazards also exist beyond the workplace walls. . . .
Consistent with Congress’s directives, OSHA has long regulated risks that arise both
inside and outside of the workplace. For example, OSHA has issued, and applied to nearly
all workplaces, rules combating risks of fire, faulty electrical installations, and inadequate
emergency exits—even though the dangers prevented by those rules arise not only in
workplaces but in many physical facilities. Similarly, OSHA has regulated to reduce risks
from excessive noise and unsafe drinking water—again, risks hardly confined to the
workplace. A biological hazard—here, the virus causing COVID-19—is no different. . . .
That is especially so because—as OSHA amply established—COVID-19 poses special
risks in most workplaces, across the country and across industries. See 86 Fed. Reg.
61424 (“The likelihood of transmission can be exacerbated by common characteristics of
many workplaces”). The majority ignores these findings, but they provide more-thanample support for the Standard. OSHA determined that the virus causing COVID-19 is
“readily transmissible in workplaces because they are areas where multiple people come
into contact with one another, often for extended periods of time.” In other words,
COVID-19 spreads more widely in workplaces than in other venues because more people
spend more time together there. And critically, employees usually have little or no control
in those settings. “[D]uring the workday,” OSHA explained, “workers may have little ability
to limit contact with coworkers, clients, members of the public, patients, and others, any
one of whom could represent a source of exposure to” the virus. The agency backed up its
conclusions with hundreds of reports of workplace COVID-19 outbreaks—not just in
cheek-by-jowl settings like factory assembly lines, but in retail stores, restaurants, medical
facilities, construction areas, and standard offices. But still, OSHA took care to tailor the
Standard. Where it could exempt work settings without exposing employees to grave
danger, it did so. In sum, the agency did just what the Act told it to: It protected
employees from a grave danger posed by a new virus as and where needed, and went no
further. The majority, in overturning that action, substitutes judicial diktat for reasoned
policymaking.
***
Underlying everything else in this dispute is a single, simple question: Who decides
how much protection, and of what kind, American workers need from COVID-19? An
agency with expertise in workplace health and safety, acting as Congress and the
President authorized? Or a court, lacking any knowledge of how to safeguard workplaces,
and insulated from responsibility for any damage it causes? . . .
101
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
The Standard also has the virtue of political accountability, for OSHA is responsible to
the President, and the President is responsible to—and can be held to account by—the
American public.
And then, there is this Court. Its Members are elected by, and accountable to, no
one. And we “lack[ ] the background, competence, and expertise to assess” workplace
health and safety issues. When we are wise, we know enough to defer on matters like this
one. When we are wise, we know not to displace the judgments of experts, acting within
the sphere Congress marked out and under Presidential control, to deal with emergency
conditions. Today, we are not wise. In the face of a still-raging pandemic, this Court tells
the agency charged with protecting worker safety that it may not do so in all the
workplaces needed. As disease and death continue to mount, this Court tells the agency
that it cannot respond in the most effective way possible. Without legal basis, the Court
usurps a decision that rightfully belongs to others. It undercuts the capacity of the
responsible federal officials, acting well within the scope of their authority, to protect
American workers from grave danger.
NOTES AND QUESTIONS
1. Unambiguous or best? Do you agree that OSHA’s statutory mandate is
unambiguous as to OSHA’s authority? Or was it ambiguous, but the Court thought their
reading was the best reading of the statute after deploying all the tools of statutory
construction? In another recent case, American Hospital Ass’n v. Becerra, 596 U.S. 724
(2022), the Court unanimously held that “after employing the traditional tools of
statutory, interpretation, we do not agree with HHS’s interpretation of the statute.” The
Court there seemed to say not that the statute was unambiguous, but that its best reading
was contrary to the agency’s interpretation.
2. Major questions and nondelegation. The Court deploys the “major questions
doctrine” in this case as a canon of interpretation. Thus the majority stacks the deck
against the agency: even if its regulation seems consistent with the statute, the question
rather is whether the statute clearly or plainly authorizes the regulation. Justice Gorsuch,
in concurrence, argues that the major questions doctrine advances nondelegation values.
We will encounter the nondelegation doctrine in more detail in Chapter 5—it is the
doctrine that maintains Congress cannot delegate its legislative power to an agency. Recall
from the introductory chapter that the standard test today is the “intelligible principle”
test, which provides that Congress must supply agencies an “intelligible principle” to guide
102
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
their actions, otherwise the statute would violate the nondelegation doctrine by turning
agencies effectively into lawmakers.
Is Justice Gorsuch saying that the major questions doctrine is a kind of “substantive”
canon that advances the substantive values of the nondelegation doctrine? Or is it a
canon of constitutional avoidance? Alternatively, might the major questions canon be a
purely linguistic canon: we simply expect that Congress would have spoken clearly about
certain issues? This appears to be how the majority uses the canon, and that appears
consistent with the Court’s other rulings in MCI and Brown & Williamson.
The major questions doctrine would be a poor fit to be a traditional clear statement
rule. Recall that ordinarily the Court will demand a clear statement when some
constitutional value is at stake—for example, the presumption against preemption
demands a clear statement before the Court will conclude that Congress has preempted
state law. In Franklin v. Massachusetts, the Court held that separation of powers values
warrant a clear statement before the APA’s abuse of discretion standard will be held to
apply to the President. But at least in the former case, Congress could preempt state law if
it wanted to. Here, could Congress in fact delegate this authority to the agency? We don’t
know. If doing so violated the nondelegation doctrine, then major questions cannot be a
clear statement rule: it does not matter how clearly Congress speaks, it still cannot make
the delegation. And if Congress is allowed to delegate this authority to the agency, then it
is hard to see why the canon advances nondelegation values.
However one thinks of the “major questions” doctrine, it is quickly becoming a staple
of both statutory interpretation and nondelegation discourse. The next case synthesizes
several purportedly “major questions” cases.
West Virginia v. EPA
597 U.S. 697 (2022)
CHIEF JUSTICE ROBERTS delivered the opinion of the Court.
The Clean Air Act authorizes the Environmental Protection Agency to regulate power
plants by setting a “standard of performance” for their emission of certain pollutants into
the air. 84 Stat. 1683, 42 U. S. C. § 7411(a)(1). That standard may be different for new and
existing plants, but in each case it must reflect the “best system of emission reduction”
that the Agency has determined to be “adequately demonstrated” for the particular
category. §§ 7411(a)(1), (b)(1), (d). For existing plants, the States then implement that
103
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
requirement by issuing rules restricting emissions from sources within their borders. Since
passage of the Act 50 years ago, EPA has exercised this authority by setting performance
standards based on measures that would reduce pollution by causing plants to operate
more cleanly. In 2015, however, EPA issued a new rule concluding that the “best system of
emission reduction” for existing coal-fired power plants included a requirement that such
facilities reduce their own production of electricity, or subsidize increased generation by
natural gas, wind, or solar sources. The question before us is whether this broader
conception of EPA’s authority is within the power granted to it by the Clean Air Act.
I
A
The Clean Air Act establishes three main regulatory programs to control air pollution
from stationary sources such as power plants. One program is the New Source
Performance Standards program of Section 111, at issue here. The other two are the
National Ambient Air Quality Standards (NAAQS) program, . . . and the Hazardous Air
Pollutants (HAP) program . . . . To understand the place and function of Section 111 in the
statutory scheme, some background on the other two programs is in order.
The NAAQS program addresses air pollutants that “may reasonably be anticipated to
endanger public health or welfare,” and “the presence of which in the ambient air results
from numerous or diverse mobile or stationary sources.” § 7408(a)(1). After identifying
such pollutants, EPA establishes a NAAQS for each. The NAAQS represents “the maximum
airborne concentration of [the] pollutant that the public health can tolerate.” EPA,
though, does not choose which sources must reduce their pollution and by how much to
meet the ambient pollution target. Instead, Section 110 of the Act leaves that task in the
first instance to the States, requiring each “to submit to [EPA] a plan designed to
implement and maintain such standards within its boundaries.”
The second major program governing stationary sources is the HAP program. The
HAP program primarily targets pollutants, other than those already covered by a NAAQS,
that present “a threat of adverse human health effects,” including substances known or
anticipated to be “carcinogenic, mutagenic, teratogenic, neurotoxic,” or otherwise
“acutely or chronically toxic.” § 7412(b)(2).
EPA’s regulatory role with respect to these toxic pollutants is different in kind from
its role in administering the NAAQS program. There, EPA is generally limited to
determining the maximum safe amount of covered pollutants in the air. As to each
hazardous pollutant, by contrast, the Agency must promulgate emissions standards for
both new and existing major sources. § 7412(d)(1). Those standards must “require the
104
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
maximum degree of reduction in emissions . . . that the [EPA] Administrator, taking into
consideration the cost of achieving such emission reduction, and any non-air quality
health and environmental impacts and energy requirements, determines is achievable . . .
through application of measures, processes, methods, systems or techniques” of emission
reduction. § 7412(d)(2). In other words, EPA must directly require all covered sources to
reduce their emissions to a certain level. And it chooses that level by determining the
“maximum degree of reduction” it considers “achievable” in practice by using the best
existing technologies and methods. § 7412(d)(3). . . .
This . . . “ . . . requires the agency to . . . ensur[e] that regulated firms adopt the
appropriate cleanup technology.”
The third air pollution control scheme is the New Source Performance Standards
program of Section 111. § 7411. That section directs EPA to 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.” § 7411(b)(1)(A).
Under Section 111(b), the Agency must then promulgate for each category “Federal
standards of performance for new sources,” § 7411(b)(1)(B). A “standard of performance”
is one that
“reflects the degree of emission limitation achievable through the application of
the best system of emission reduction which (taking into account the cost of
achieving such reduction and any nonair quality health and environmental
impact and energy requirements) the [EPA] Administrator determines has been
adequately demonstrated.” § 7411(a)(1).
Thus, the statute directs EPA to (1) “determine[ ],” taking into account various
factors, the “best system of emission reduction which . . . has been adequately
demonstrated,” (2) ascertain the “degree of emission limitation achievable through the
application” of that system, and (3) impose an emissions limit on new stationary sources
that “reflects” that amount. Generally 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. EPA undertakes this analysis on a pollutant-by-pollutant
basis, establishing different standards of performance with respect to different pollutants
emitted from the same source category.
Although the thrust of Section 111 focuses on emissions limits for new and modified
sources—as its title indicates—the statute also authorizes regulation of certain pollutants
from existing sources. Under Section 111(d), once EPA “has set new source standards
105
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
addressing emissions of a particular pollutant under . . . section 111(b),” 80 Fed. Reg.
64711, it must then address emissions of that same pollutant by existing sources—but
only if they are not already regulated under the NAAQS or HAP programs. § 7411(d)(1).
Existing power plants, for example, emit many pollutants covered by a NAAQS or HAP
standard. Section 111(d) thus “operates as a gap-filler,” empowering EPA to regulate
harmful emissions not already controlled under the Agency’s other authorities. . . .
Reflecting the ancillary nature of Section 111(d), EPA has used it only a handful of
times since the enactment of the statute in 1970. For instance, the Agency has established
emissions limits on acid mist from sulfuric acid production; sulfide gases released by kraft
pulp mills; and emissions of various harmful gases from municipal landfills. It was thus
only a slight overstatement for one of the architects of the 1990 amendments to the Clean
Air Act to refer to Section 111(d) as an “obscure, never-used section of the law.” [Citing
legislative history].
B
Things changed in October 2015, when EPA promulgated two rules addressing
carbon dioxide pollution from power plants—one for new plants under Section 111(b), the
other for existing plants under Section 111(d). Both were premised on the Agency’s
earlier finding that carbon dioxide is an “air pollutant” that “may reasonably be
anticipated to endanger public health or welfare” by causing climate change. Carbon
dioxide is not subject to a NAAQS and has not been listed as a toxic pollutant.
The first rule announced by EPA established federal carbon emissions limits for new
power plants of two varieties: fossil-fuel-fired electric steam generating units (mostly coal
fired) and natural-gas-fired stationary combustion turbines. . . .
The second rule was triggered by the first: Because EPA was now regulating carbon
dioxide from new coal and gas plants, Section 111(d) required EPA to also address carbon
emissions from existing coal and gas plants. It did so through what it called the Clean
Power Plan rule. . . .
[T]he Agency included two additional building blocks in its BSER, both of which
involve what it called “generation shifting from higher-emitting to lower-emitting”
producers of electricity. Building block two was a shift in electricity production from
existing coal-fired power plants to natural-gas-fired plants. Because natural gas plants
produce “typically less than half as much” carbon dioxide per unit of electricity created as
coal-fired plants, the Agency explained, “this generation shift [would] reduce[ ] CO2
emissions.” Building block three worked the same way, except that the shift was from
both coal- and gas-fired plants to “new low- or zero-carbon generating capacity,” mainly
106
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
wind and solar. “Most of the CO2 controls” in the rule came from the application of
building blocks two and three.
The Agency identified three ways in which a regulated plant operator could
implement a shift in generation to cleaner sources. First, an operator could simply reduce
the regulated plant’s own production of electricity. Second, it could build a new natural
gas plant, wind farm, or solar installation, or invest in someone else’s existing facility and
then increase generation there. Finally, operators could purchase emission allowances or
credits as part of a cap-and-trade regime. Under such a scheme, sources that achieve a
reduction in their emissions can sell a credit representing the value of that reduction to
others, who are able to count it toward their own applicable emissions caps.
EPA explained that taking any of these steps would implement a sector-wide shift in
electricity production from coal to natural gas and renewables. Given the integrated
nature of the power grid, “adding electricity to the grid from one generator will result in
the instantaneous reduction in generation from other generators,” and “reductions in
generation from one generator lead to the instantaneous increase in generation” by
others. So coal plants, whether by reducing their own production, subsidizing an increase
in production by cleaner sources, or both, would cause a shift toward wind, solar, and
natural gas.
Having decided that the “best system of emission reduction . . . adequately
demonstrated” was one that would reduce carbon pollution mostly by moving production
to cleaner sources, EPA then set about determining “the degree of emission limitation
achievable through the application” of that system. 42 U. S. C. § 7411(a)(1). The Agency
recognized that—given the nature of generation shifting—it could choose from “a wide
range of potential stringencies for the BSER.” 80 Fed. Reg. 64730. Put differently, in
translating the BSER into an operational emissions limit, EPA could choose whether to
require anything from a little generation shifting to a great deal. The Agency settled on
what it regarded as a “reasonable” amount of shift, which it based on modeling of how
much more electricity both natural gas and renewable sources could supply without
causing undue cost increases or reducing the overall power supply. Based on these
changes, EPA projected that by 2030, it would be feasible to have coal provide 27% of
national electricity generation, down from 38% in 2014.
From these significant projected reductions in generation, EPA developed a series of
complex equations to “determine the emission performance rates” that States would be
required to implement. The calculations resulted in numerical emissions ceilings so strict
that no existing coal plant would have been able to achieve them without engaging in one
of the three means of shifting generation described above. Indeed, the emissions limit the
107
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
Clean Power Plan established for existing power plants was actually stricter than the cap
imposed by the simultaneously published standards for new plants.
The point, after all, was to compel the transfer of power generating capacity from
existing sources to wind and solar. The White House stated that the Clean Power Plan
would “drive a[n] . . . aggressive transformation in the domestic energy industry.” EPA’s
own modeling concluded 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 coalfired plants, and eliminate tens of thousands of jobs across various sectors. EPA,
Regulatory Impact Analysis for the Clean Power Plan Final Rule 3–22, 3–30, 3–33, 6– 24,
6–25 (2015). The Energy Information Administration reached similar conclusions,
projecting that the rule would cause retail electricity prices to remain persistently 10%
higher in many States, and would reduce GDP by at least a trillion 2009 dollars by 2040.
Dept. of Energy, Analysis of the Impacts of the Clean Power Plan 21, 63–64 (May 2015).
C
These projections were never tested, because the Clean Power Plan never went into
effect. . . . [B]efore [the D.C. Circuit] could issue a decision [on the plan’s lawfulness],
there was a change in Presidential administrations. . . .
EPA eventually repealed the rule in 2019, concluding that the Clean Power Plan had
been “in excess of its statutory authority” under Section 111(d). Specifically, the Agency
concluded that generation shifting should not have been considered as part of the BSER.
The Agency interpreted Section 111 as “limit[ing] the BSER to those systems that can be
put into operation at a building, structure, facility, or installation,” such as “add-on
controls” and “inherently lower-emitting processes/practices/designs.” It then explained
that the Clean Power Plan, rather than setting the standard “based on the application of
equipment and practices at the level of an individual facility,” had instead based it on “a
shift in the energy generation mix at the grid level”—not the sort of measure that has “a
potential for application to an individual source.” . . .
EPA argued that under the major questions 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.” It found none. . . .
A number of States and private parties immediately filed petitions for review in the
D. C. Circuit, challenging EPA’s repeal of the Clean Power Plan . . . . [T]he [D.C. Circuit]
concluded[ that] the statute could reasonably be read to encompass generation shifting.
As part of that analysis, the Court of Appeals concluded that the major questions doctrine
did not apply, and thus rejected the need for a clear statement of congressional intent to
108
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
delegate such power to EPA. Having found that EPA misunderstood the scope of its
authority under the Clean Air Act, the Court vacated the Agency’s repeal of the Clean
Power Plan and remanded to the Agency for further consideration. . . .
[Because there was a third presidential administration by this time, which had asked
to stay the D.C. Circuit’s ruling so that it could assess for itself what Section 111(d)
standard it wanted to adopt, the Court proceeded to address whether the case had
become moot and concluded that it had not and therefore the Court could proceed to the
merits.—Ed.]
III
A
. . . Where the statute at issue is one that confers authority upon an administrative
agency, that inquiry must be “shaped, at least in some measure, by the nature of the
question presented”—whether Congress in fact meant to confer the power the agency
has asserted. FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 159 (2000). In the
ordinary case, that context has no great effect on the appropriate analysis. Nonetheless,
our precedent teaches that there are “extraordinary cases” that call for a different
approach—cases in which the “history and the breadth of the authority that [the agency]
has asserted,” and the “economic and political significance” of that assertion, provide a
“reason to hesitate before concluding that Congress” meant to confer such authority. Id.
at 159–160.
Such cases have arisen from all corners of the administrative state. In Brown &
Williamson, for instance, the Food and Drug Administration claimed that its authority over
“drugs” and “devices” included the power to regulate, and even ban, tobacco products.
We rejected that “expansive construction of the statute,” concluding that “Congress could
not have intended to delegate” such a sweeping and consequential authority “in so cryptic
a fashion.” In Alabama Assn. of Realtors v. Department of Health and Human Servs., 594
U. S. ___, ___ (2021), we concluded that the Centers for Disease Control and Prevention
could not, under its authority to adopt measures “necessary to prevent the . . . spread of ”
disease, institute a nationwide eviction moratorium in response to the COVID-19
pandemic. We found the statute’s language a “wafer-thin reed” on which to rest such a
measure, given “the sheer scope of the CDC’s claimed authority,” its “unprecedented”
nature, and the fact that Congress had failed to extend the moratorium after previously
having done so.
Our decision in Utility Air addressed another question regarding EPA’s authority—
namely, whether EPA could construe the term “air pollutant,” in a specific provision of the
109
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
Clean Air Act, to cover greenhouse gases. [UARG v. EPA, 573 U.S. 302, 310 (2014)].
Despite its textual plausibility, we noted that the Agency’s interpretation would have
given it permitting authority over millions of small sources, such as hotels and office
buildings, that had never before been subject to such requirements. We declined to
uphold EPA’s claim of “unheralded” regulatory power over “a significant portion of the
American economy.” In Gonzales v. Oregon, 546 U. S. 243 (2006), we 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. The Attorney General argued that this came within his statutory power to
revoke licenses where he found them “inconsistent with the public interest.” We
considered the “idea that Congress gave [him] such broad and unusual authority through
an implicit delegation . . . not sustainable.” Similar considerations informed our recent
decision invalidating the Occupational Safety and Health Administration’s mandate that
“84 million Americans . . . either obtain a COVID-19 vaccine or undergo weekly medical
testing at their own expense.” National Federation of Independent Business v.
Occupational Safety and Health Administration, 595 U. S. ___, ___ (2022). We found it
“telling that OSHA, in its half century of existence,” had never relied on its authority to
regulate occupational hazards to impose such a remarkable measure.
All of these regulatory assertions had a colorable textual basis. And yet, in each case,
given the various circumstances, “common sense as to the manner in which Congress
[would have been] likely to delegate” such power to the agency at issue, Brown &
Williamson, 529 U.S. at 133, made it very unlikely that Congress had actually done so.
Extraordinary grants of regulatory authority are rarely accomplished through “modest
words,” “vague terms,” or “subtle device[s].” Whitman, 531 U.S. at 468. Nor does
Congress typically use oblique or elliptical language to empower an agency to make a
“radical or fundamental change” to a statutory scheme. MCI Telecommunications Corp. v.
American Telephone & Telegraph Co., 512 U. S. 218, 229 (1994). Agencies have only those
powers given to them by Congress . . . . We presume that “Congress intends to make
major policy decisions itself, not leave those decisions to agencies.”
Thus, in certain extraordinary cases, both separation of powers principles and a
practical understanding of legislative intent make us “reluctant to read into ambiguous
statutory text” the delegation claimed to be lurking there. To convince us otherwise,
something more than a merely plausible textual basis for the agency action is necessary.
The agency instead must point to “clear congressional authorization” for the power it
claims.
110
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
The dissent criticizes us for “announc[ing] the arrival” of this major questions
doctrine, and argues that each of the decisions just cited simply followed our “ordinary
method” of “normal statutory interpretation.” But in what the dissent calls the “key case”
in this area, Brown & Williamson, the Court could not have been clearer: “In extraordinary
cases . . . there may be reason to hesitate” before accepting a reading of a statute that
would, under more “ordinary” circumstances, be upheld. . . . The dissent attempts to fit
the analysis in these cases within routine statutory interpretation, but the bottom line—a
requirement of “clear congressional authorization,” ibid.—confirms that the approach
under the major questions doctrine is distinct.
As for the major questions doctrine “label[ ],” it took hold because it refers to an
identifiable body of law that has developed over a series of significant cases all addressing
a particular and recurring problem: agencies asserting highly consequential power beyond
what Congress could reasonably be understood to have granted. Scholars and jurists have
recognized the common threads between those decisions. So have we.
B
Under our precedents, this is a major questions case. In arguing that Section 111(d)
empowers it to substantially restructure the American energy market, EPA “claim[ed] to
discover in a long-extant statute an unheralded power” representing a “transformative
expansion in [its] regulatory authority.” It located that newfound power in the vague
language of an “ancillary provision[ ]” of the Act, one that was designed to function as a
gap filler and had rarely been used in the preceding decades. And the Agency’s discovery
allowed it to adopt a regulatory program that Congress had conspicuously and repeatedly
declined to enact itself. Given these circumstances, there is every reason to “hesitate
before concluding that Congress” meant to confer on EPA the authority it claims under
Section 111(d).
Prior to 2015, EPA had always set emissions limits under Section 111 based on the
application of measures that would reduce pollution by causing the regulated source to
operate more cleanly. It had never devised a cap by looking to a “system” that would
reduce pollution simply by “shifting” polluting activity “from dirtier to cleaner sources.”
And as Justice Frankfurter has noted, “just as established practice may shed light on the
extent of power conveyed by general statutory language, so the want of assertion of
power by those who presumably would be alert to exercise it, is equally significant in
determining whether such power was actually conferred.” FTC v. Bunte Brothers, Inc., 312
U. S. 349, 352 (1941). . . .
111
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
Indeed, EPA nodded to this history in the Clean Power Plan itself, describing the sort
of “systems of emission reduction” it had always before selected—“efficiency
improvements, fuel-switching,” and “add-on controls”—as “more traditional air pollution
control measures.” . . .
This view of EPA’s authority was not only unprecedented; it also effected a
“fundamental revision of the statute, changing it from [one sort of] scheme of . . .
regulation” into an entirely different kind. MCI, 512 U.S. at 231. Under the Agency’s prior
view of Section 111, its role was limited to ensuring the efficient pollution performance of
each individual regulated source. Under that paradigm, if a source was already operating
at that level, there was nothing more for EPA to do. Under its newly “discover[ed]”
authority, however, EPA can demand much greater reductions in emissions based on a
very different kind of policy judgment: that it would be “best” if coal made up a much
smaller share of national electricity generation. And on this view of EPA’s authority, it
could go further, perhaps forcing coal plants to “shift” away virtually all of their
generation—i.e., to cease making power altogether. . . .
EPA [argues that it] must limit the magnitude of generation shift it demands to a level
that will not be “exorbitantly costly” or “threaten the reliability of the grid.”
But this argument does not so much limit the breadth of the Government’s claimed
authority as reveal it. On EPA’s view of Section 111(d), Congress implicitly tasked it, and it
alone, with balancing the many vital considerations of national policy implicated in
deciding how Americans will get their energy. EPA decides, for instance, how much of a
switch from coal to natural gas is practically feasible by 2020, 2025, and 2030 before the
grid collapses, and how high energy prices can go as a result before they become
unreasonably “exorbitant.”
There is little reason to think Congress assigned such decisions to the Agency. . . . The
basic and consequential tradeoffs involved in such a choice are ones that Congress would
likely have intended for itself. Congress certainly has not conferred a like authority upon
EPA anywhere else in the Clean Air Act. The last place one would expect to find it is in the
previously little-used backwater of Section 111(d). . . .
Finally, we cannot ignore that the regulatory writ EPA newly uncovered conveniently
enabled it to enact a program that, long after the dangers posed by greenhouse gas
emissions “had become well known, Congress considered and rejected” multiple times.
Brown & Williamson, 529 U.S. at 144. At bottom, the Clean Power Plan essentially
adopted a cap-and-trade scheme, or set of state cap-and-trade schemes, for carbon.
112
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
Congress, however, has consistently rejected proposals to amend the Clean Air Act to
create such a program. . . .
C
Given these circumstances, our precedent counsels skepticism toward EPA’s claim
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 major
questions doctrine—point to “clear congressional authorization” to regulate in that
manner.
All the Government can offer, however, is the Agency’s authority to establish
emissions caps at a level reflecting “the application of the best system of emission
reduction . . . adequately demonstrated.” As a matter of “definitional possibilities,”
generation shifting can be described as a “system”—“an aggregation or assemblage of
objects united by some form of regular interaction”—capable of reducing emissions. But
of course almost anything could constitute such a “system”; shorn of all context, the word
is an empty vessel. Such a vague statutory grant is not close to the sort of clear
authorization required by our precedents. . . .
Capping carbon dioxide emissions at a level that will force a nationwide transition
away from the use of coal to generate electricity may be a sensible “solution to the crisis
of the day.” But it is not plausible that Congress gave EPA the authority to adopt on its
own such a regulatory scheme in Section 111(d). A decision of such magnitude and
consequence rests with Congress itself, or an agency acting pursuant to a clear delegation
from that representative body.
JUSTICE GORSUCH, with whom JUSTICE ALITO joins, concurring.
. . . . I join the Court’s opinion and write to offer some additional observations about
the doctrine on which it rests.
One of the Judiciary’s most solemn duties is to ensure that acts of Congress are
applied in accordance with the Constitution in the cases that come before us. To help
fulfill that duty, courts have developed certain “clear-statement” rules. These rules
assume that, absent a clear statement otherwise, Congress means for its laws to operate
in congruence with the Constitution rather than test its bounds. . . .
The Constitution prohibits Congress from passing laws imposing various types of
retroactive liability. Consistent with this rule, Chief Justice Marshall long ago advised that
“a court . . . ought to struggle hard against a [statutory] construction which will, by a
retrospective operation, affect the rights of parties.” . . .
113
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
The Constitution also incorporates the doctrine of sovereign immunity. To enforce
that doctrine, courts have consistently held that “nothing but express words, or an
insurmountable implication” would justify the conclusion that lawmakers intended to
abrogate the States’ sovereign immunity. . . .
The major questions doctrine works in much the same way to protect the
Constitution’s separation of powers. In Article I, “the People” vested “[a]ll” federal
“legislative powers . . . in Congress.” As Chief Justice Marshall put it, this means that
“important subjects . . . must be entirely regulated by the legislature itself,” even if
Congress may leave the Executive “to act under such general provisions to fill up the
details.” Wayman v. Southard, 10 Wheat. 1, 42–43 (1825). . . .
Much as constitutional rules about retroactive legislation and sovereign immunity
have their corollary clear-statement rules, Article I’s Vesting Clause has its own: the major
questions doctrine. . . . [T]he Court [has] routinely enforced “the nondelegation doctrine”
through “the interpretation of statutory texts, and, more particularly, [by] giving narrow
constructions to statutory delegations that might otherwise be thought to be
unconstitutional.” Mistretta v. United States, 488 U.S. 361, 373, n. 7 (1989). . . .
Turning from the doctrine’s function to its application, it seems to me that our cases
supply a good deal of guidance about when an agency action involves a major question for
which clear congressional authority is required.
First, this Court has indicated that the doctrine applies when an agency claims the
power to resolve a matter of great “political significance,” or end an “earnest and
profound debate across the country” . . . .
Second, this Court has said that an agency must point to clear congressional
authorization when it seeks to regulate “ ‘a significant portion of the American
economy,’ ” or require “billions of dollars in spending” by private persons or entities. . . .
Third, this Court has said that the major questions doctrine may apply when an
agency seeks to “intrud[e] into an area that is the particular domain of state law.” . . .
The EPA claims the power to force coal and gas-fired power plants “to cease
[operating] altogether.” Whether these plants should be allowed to operate is a question
on which people today may disagree, but it is a question everyone can agree is vitally
important. Congress has debated the matter frequently. . . .
Other suggestive factors are present too. “The electric power sector is among the
largest in the U. S. economy, with links to every other sector.” . . . Finally, the CPP
unquestionably has an impact on federalism, as “the regulation of utilities is one of the
114
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
most important of the functions traditionally associated with the police power of the
States.” . . .
At this point, the question becomes what qualifies as a clear congressional statement
authorizing an agency’s action. Courts have long experience applying clear-statement
rules throughout the law, and our cases have identified several telling clues in this context
too.
First, courts must look to the legislative provisions on which the agency seeks to rely
“ ‘with a view to their place in the overall statutory scheme.’ ” Brown & Williamson, 529
U. S. at 133. “[O]blique or elliptical language” will not supply a clear statement. . . .
Second, courts may examine the age and focus of the statute the agency invokes in
relation to the problem the agency seeks to address. . . . [A]n agency’s attempt to deploy
an old statute focused on one problem to solve a new and different problem may also be
a warning sign that it is acting without clear congressional authority.
Third, courts may examine the agency’s past interpretations of the relevant statute.
A “contemporaneous” and long-held Executive Branch interpretation of a statute is
entitled to some weight as evidence of the statute’s original charge to an agency. . . .
Fourth, skepticism may be merited when there is a mismatch between an agency’s
challenged action and its congressionally assigned mission and expertise. . . .
Asking these questions again yields a clear answer in our case. As the Court details,
the agency before us cites no specific statutory authority allowing it to transform the
Nation’s electrical power supply. Instead, the agency relies on a rarely invoked statutory
provision that was passed with little debate and has been characterized as an “obscure,
never-used section of the law.” Nor has the agency previously interpreted the relevant
provision to confer on it such vast authority; there is no original, longstanding, and
consistent interpretation meriting judicial respect. Finally, there is a “mismatch” between
the EPA’s expertise over environmental matters and the agency’s claim that “Congress
implicitly tasked it, and it alone, with balancing the many vital considerations of national
policy implicated in deciding how Americans will get their energy.” Such a claimed power
“requires technical and policy expertise not traditionally needed in [the] EPA’s regulatory
development.” . . .
In places, the dissent seems to suggest that we should not be unduly “ ‘concerned’ ”
with the Constitution’s assignment of the legislative power to Congress. . . .
When Congress seems slow to solve problems, it may be only natural that those in
the Executive Branch might seek to take matters into their own hands. But the
115
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
Constitution does not authorize agencies to use pen-and-phone regulations as substitutes
for laws passed by the people’s representatives. In our Republic, “[i]t is the peculiar
province of the legislature to prescribe general rules for the government of society.”
Fletcher v. Peck, 6 Cranch 87, 136 (1810). Because today’s decision helps safeguard that
foundational constitutional promise, I am pleased to concur.
JUSTICE KAGAN, with whom JUSTICE BREYER and JUSTICE SOTOMAYOR join, dissenting.
Today, the Court strips the Environmental Protection Agency (EPA) of the power
Congress gave it to respond to “the most pressing environmental challenge of our time.”
Massachusetts v. EPA, 549 U. S. 497, 505 (2007).
Climate change’s causes and dangers are no longer subject to serious doubt. Modern
science is “unequivocal that human influence”—in particular, the emission of greenhouse
gases like carbon dioxide—“has warmed the atmosphere, ocean and land.”
Intergovernmental Panel on Climate Change, Sixth Assessment Report, The Physical
Science Basis: Headline Statements 1 (2021). The Earth is now warmer than at any time
“in the history of modern civilization,” with the six warmest years on record all occurring
in the last decade. U. S. Global Change Research Program, Fourth National Climate
Assessment, Vol. I, p. 10 (2017); Brief for Climate Scientists as Amici Curiae 8. 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.” American Elec. Power Co. v. Connecticut, 564 U. S. 410, 417 (2011). If
the current rate of emissions continues, children born this year could live to see parts of
the Eastern seaboard swallowed by the ocean. See Brief for Climate Scientists as Amici
Curiae 6. Rising waters, scorching heat, and other severe weather conditions could force
“mass migration events[,] political crises, civil unrest,” and “even state failure.” Dept. of
Defense, Climate Risk Analysis 8 (2021). And by the end of this century, climate change
could be the cause of “4.6 million excess yearly deaths.” See R. Bressler, The Mortality
Cost of Carbon, 12 Nature Communications 4467, p. 5 (2021).
Congress charged EPA with addressing those potentially catastrophic harms,
including through regulation of fossil-fuel-fired power plants. Section 111 of the Clean Air
Act directs EPA to regulate stationary sources of any substance that “causes, or
contributes significantly to, air pollution” and that “may reasonably be anticipated to
endanger public health or welfare.” 42 U. S. C. § 7411(b)(1)(A). Carbon dioxide and other
greenhouse gases fit that description. See American Elec. Power, 564 U.S. at 416–417;
Massachusetts, 549 U.S. at 528–532. EPA thus serves as the Nation’s “primary regulator of
greenhouse gas emissions.” American Elec. Power, 564 U. S., at 428. And among the most
116
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
significant of the entities it regulates are fossil-fuel-fired (mainly coal- and natural-gasfired) power plants. Today, those electricity-producing plants are responsible for about
one quarter of the Nation’s greenhouse gas emissions. Curbing that output is a necessary
part of any effective approach for addressing climate change.
To carry out its Section 111 responsibility, EPA issued the Clean Power Plan in 2015.
The premise of the Plan—which no one really disputes—was that operational
improvements at the individual-plant level would either “lead to only small emission
reductions” or would cost far more than a readily available regulatory alternative. That
alternative—which fossil-fuel-fired plants were “already using to reduce their [carbon
dioxide] emissions” in “a cost effective manner”—is called generation shifting. As the
Court explains, the term refers to ways of shifting electricity generation from higher
emitting sources to lower emitting ones—more specifically, from coal-fired to natural-gasfired sources, and from both to renewable sources like solar and wind. A power company
(like the many supporting EPA here) might divert its own resources to a cleaner source, or
might participate in a cap-and-trade system with other companies to achieve the same
emissions-reduction goals. . . .
The limits the majority now puts on EPA’s authority fly in the face of the statute
Congress wrote. The majority says it is simply “not plausible” that Congress enabled EPA
to regulate power plants’ emissions through generation shifting. But that is just what
Congress did when it broadly authorized EPA in Section 111 to select the “best system of
emission reduction” for power plants. § 7411(a)(1). The “best system” full stop—no ifs,
ands, or buts of any kind relevant here. The parties do not dispute that generation
shifting is indeed the “best system”—the most effective and efficient way to reduce
power plants’ carbon dioxide emissions. And no other provision in the Clean Air Act
suggests that Congress meant to foreclose EPA from selecting that system; to the
contrary, the Plan’s regulatory approach fits hand-in-glove with the rest of the statute.
The majority’s decision rests on one claim alone: that generation shifting is just too new
and too big a deal for Congress to have authorized it in Section 111’s general terms. But
that is wrong. A key reason Congress makes broad delegations like Section 111 is so an
agency can respond, appropriately and commensurately, to new and big problems.
Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress
therefore gives an expert agency the power to address issues—even significant ones—as
and when they arise. That is what Congress did in enacting Section 111. The majority
today overrides that legislative choice. In so doing, it deprives EPA of the power needed—
and the power granted—to curb the emission of greenhouse gases.
I
117
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
The Clean Air Act was major legislation, designed to deal with a major public policy
issue. As Congress explained, its goal was to “speed up, expand, and intensify the war
against air pollution” in all its forms. . . .
If that flexibility is not apparent on the provision’s face, consider some dictionary
definitions—supposedly a staple of this Court’s supposedly textualist method of reading
statutes. A “system” is “a complex unity formed of many often diverse parts subject to a
common plan or serving a common purpose.” Webster’s Third New International
Dictionary 2322 (1971). Or again: a “system” is “[a]n organized and coordinated method; a
procedure.” American Heritage Dictionary 1768 (5th ed. 2018). . . . [C]ontra the majority,
a broad term is not the same thing as a “vague” one. A broad term is comprehensive,
extensive, wide-ranging; a “vague” term is unclear, ambiguous, hazy. . . .
[G]eneration shifting fits comfortably within the conventional meaning of a “system
of emission reduction.” Consider one of the most common mechanisms of generation
shifting: the use of a cap-and-trade scheme. Here is how the majority describes cap and
trade: “Under such a scheme, sources that receive a reduction in their emissions can sell a
credit representing the value of that reduction to others, who are able to count it toward
their own applicable emissions caps.” Does that sound like a “system” to you? It does to
me too. . . .
Other statutory provisions confirm the point. The Clean Air Act’s acid rain provision,
for example, describes a cap-and-trade program as an “emission allocation and transfer
system.” § 7651(b) (emphasis added). . . .
There is also a flipside point: Congress declined to include in Section 111 the
restrictions on EPA’s authority contained in other Clean Air Act provisions. Most relevant
here, quite a number of statutory sections confine EPA’s emissions-reduction efforts to
technological controls—essentially, equipment or processes that can be put into place at a
particular facility. So, for example, one provision tells EPA to set standards “reflect[ing]
the greatest degree of emission reduction achievable through the application of
technology.” § 7521(a)(3)(A)(i). Others direct the use of the “best available retrofit
technology,” or the “best available control technology,” or the “maximum achievable
control technology.” §§ 7491(b)(2)(A), (g)(2), 7475(a)(4), 7479(3), 7412(g)(2). There are
still more. None of those provisions would allow EPA to set emissions limits based on
generation shifting, as the Agency acknowledges. But nothing like the language of those
provisions is included in Section 111. That matters under normal rules of statutory
interpretation. As Justice Scalia once wrote for the Court: “We do not lightly assume that
Congress has omitted from its adopted text requirements that it nonetheless intends to
apply, and our reluctance is even greater when Congress has shown elsewhere in the
118
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
same statute that it knows how to make such a requirement manifest.” Jama v.
Immigration and Customs Enforcement, 543 U. S. 335, 341 (2005).
Statutory history serves only to pile on: It shows that Congress has specifically
declined to restrict EPA to technology-based controls in its regulation of existing
stationary sources. The key moment came in 1977, when Congress amended Section 111
to distinguish between new sources and existing ones. For new sources, EPA could select
only the “best technological system of continuous emission reduction.” Clean Air Act
Amendments, § 109(c)(1)(A), 91 Stat. 700 (emphasis added). But for existing sources, the
word “technological” was struck out: EPA could select the “best system of continuous
emission reduction.” Ibid. The House Report emphasized Congress’s deliberate choice:
Whereas the standards set for new sources were to be based on “the best technological”
controls, the “standards adopted for existing sources” were “to be based on available
means of emission control (not necessarily technological).” H. R. Rep. No. 95–564, p. 129
(1977). . . .
“Congress,” this Court has said, “knows to speak in plain terms when it wishes to
circumscribe, and in capacious terms when it wishes to enlarge, agency discretion.”
Arlington v. FCC, 569 U. S. 290, 296 (2013). In Section 111, Congress spoke in capacious
terms. . . . And when Congress uses “expansive language” to authorize agency action,
courts generally may not “impos[e] limits on [the] agency’s discretion.” That constraint on
judicial authority—that insistence on judicial modesty—should resolve this case.
II
A
The majority thinks not, contending that in “certain extraordinary cases”—of which
this is one—courts should start off with “skepticism” that a broad delegation authorizes
agency action. The majority labels that view the “major questions doctrine,” and claims to
find support for it in our caselaw. But the relevant decisions do normal statutory
interpretation: In them, the Court simply insisted that the text of a broad delegation, like
any other statute, should be read in context, and with a modicum of common sense. Using
that ordinary method, the decisions struck down agency actions (even though they
plausibly fit within a delegation’s terms) for two principal reasons. First, an agency was
operating far outside its traditional lane, so that it had no viable claim of expertise or
experience. And second, the action, if allowed, would have conflicted with, or even
wreaked havoc on, Congress’s broader design. In short, the assertion of delegated power
was a misfit for both the agency and the statutory scheme. But that is not true here. The
119
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
Clean Power Plan falls within EPA’s wheelhouse, and it fits perfectly—as I’ve just shown—
with all the Clean Air Act’s provisions. . . .
The majority today goes beyond those sensible principles. It announces the arrival of
the “major questions doctrine,” which replaces normal text-in-context statutory
interpretation with some tougher-to-satisfy set of rules. Apparently, there is now a twostep 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. The result is statutory interpretation of an unusual
kind. It is not until page 28 of a 31-page opinion that the majority begins to seriously
discuss the meaning of Section 111. And even then, it does not address straight-up what
should be the question: Does the text of that provision, when read in context and with a
commonsense awareness of how Congress delegates, authorize the agency action here?
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 . . . considered—
without multiple steps, triggers, or special presumptions—the fit between the power
claimed, the agency claiming it, and the broader statutory design.
The key case here is FDA v. Brown & Williamson. There, the Food and Drug
Administration (FDA) asserted that its power to regulate “drugs” and “devices” extended
to tobacco products. The claim had something to it: FDA has broad authority over “drugs”
and drug-delivery “devices,” and the definitions of those terms could be read to
encompass nicotine and cigarettes. But the asserted authority “simply [did] not fit” the
overall statutory scheme. FDA’s governing statute required the agency to ensure that
regulated products were “safe” to be marketed—but there was no making tobacco
products safe in the usual sense. So FDA would have had to reinterpret what it meant to
be “safe,” or else ban tobacco products altogether. Both options, the Court thought, were
preposterous. . . . [T]here was “simply” a lack of “fit” between the regulation at issue, the
agency in question, and the broader statutory scheme. . . .
In Gonzales v. Oregon, 546 U. S. 243 (2006), we . . . doubted Congress would have
delegated such a “quintessentially medical judgment[ ]” to “an executive official who lacks
medical expertise.” . . . Later, in Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014),
the Court relied on similar reasoning to reject EPA’s efforts to regulate “millions of small”
and previously unregulated sources of emissions . . . . Key to that decision was the Court’s
view that reading the delegation so expansively would be “inconsistent with” the statute’s
broader “structure and design.” The Court explained that allowing the agency action to
120
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
proceed would necessitate the “rewriting” of other “unambiguous statutory terms”—
indeed, of “precise numerical thresholds.”
And last Term, the Court concluded that the Centers for Disease Control and
Prevention (CDC) lacked the power to impose a nationwide eviction moratorium. The
Court . . . raised an eyebrow at the thought of the CDC “intrud[ing]” into “the landlordtenant relationship”—a matter outside the CDC’s usual “domain.” . . .
In each case, the Court thought, the agency had strayed out of its lane, to an area
where it had neither expertise nor experience. . . .
B
The Court today faces no such singular assertion of agency power. . . . It claims EPA
has no “comparative expertise” in “balancing the many vital considerations of national
policy” implicated in regulating electricity sources. But that is wrong. . . .
As the Plan noted, generation shifting has a well-established pedigree as a tool for
reducing pollution; even putting aside other federal regulation, both state regulators and
power plants themselves have long used it to attain environmental goals. The technique
is, so to speak, a tool in the pollution-control toolbox. And that toolbox is the one EPA
uses. So that Agency, more than any other, has the desired “comparative expertise.” . . .
[T]he majority protests that Congress would not have wanted EPA to “dictat[e],” through
generation shifting, the “mix of energy sources nationwide.” But that statement reflects a
misunderstanding of how the electricity market works. Every regulation of power plants—
even the most conventional, facility-specific controls—“dictat[es]” the national energy mix
to one or another degree. . . .
The Clean Power Plan was not so big. It was not so new. And to the extent it was
either, that should not matter.
As to bigness—well, events have proved the opposite: The Clean Power Plan, we now
know, would have had little or no impact. The Trump administration’s repeal of the Plan
created a kind of controlled experiment: The Plan’s “magnitude” could be measured by
seeing how far short the industry fell of the Plan’s nationwide emissions target. Except
that turned out to be the wrong question, because the industry didn’t fall short of the
Plan’s goal; rather, the industry exceeded that target, all on its own. And it did so mainly
through the generation-shifting techniques that the Plan called for. . . .
The majority’s claim about the Clean Power Plan’s novelty—the most fleshed-out
part of today’s opinion—is also exaggerated. As EPA explained when it issued the Clean
Power Plan, an earlier Section 111(d) regulation had determined that a cap-and-trade
121
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
program was the “best system of emission reduction” for mercury. . . . A decade earlier,
EPA had determined that States could comply with a Section 111(d) regulation for
municipal waste combustors by establishing cap-and-trade programs. . . .
In any event, newness might be perfectly legitimate—even required—from
Congress’s point of view. I do not dispute that an agency’s longstanding practice may
inform a court’s interpretation of a statute delegating the agency power. But it is equally
true, as Brown & Williamson recognized, that agency practices are “not carved in
stone.” . . . In selecting [its] words, Congress understood—it had to—that the “best
system” would change over time. Congress wanted and instructed EPA to keep up. . . .
And contra the majority, it is that Congress’s choice which counts, not any later
one’s. The majority says it “cannot ignore” that Congress in recent years has “considered
and rejected” cap-and-trade schemes. But under normal principles of statutory
construction, the majority should ignore that fact . . . .
III
Some years ago, I remarked that “[w]e’re all textualists now.” Harvard Law School,
The Antonin Scalia Lecture Series: A Dialogue with Justice Elena Kagan on the Reading of
Statutes (Nov. 25, 2015). It seems I was wrong. The current Court is textualist only when
being so suits it. When that method would frustrate broader goals, special canons like the
“major questions doctrine” magically appear as get-out-of-text-free cards. Today, one of
those broader goals makes itself clear: Prevent agencies from doing important work, even
though that is what Congress directed. That anti-administrative-state stance shows up in
the majority opinion, and it suffuses the concurrence. . . .
In all times, but ever more in “our increasingly complex society,” the Legislature
“simply cannot do its job absent an ability to delegate power under broad general
directives.” Mistretta v. United States, 488 U. S. 361, 372 (1989). Consider just two
reasons why.
First, Members of Congress often don’t know enough—and know they don’t know
enough—to regulate sensibly on an issue. Of course, Members can and do provide overall
direction. But then they rely, as all of us rely in our daily lives, on people with greater
expertise and experience. Those people are found in agencies. Congress looks to them to
make specific judgments about how to achieve its more general objectives. And it does so
especially, though by no means exclusively, when an issue has a scientific or technical
dimension. Why wouldn’t Congress instruct EPA to select “the best system of emission
reduction,” rather than try to choose that system itself? . . .
122
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
Second and relatedly, Members of Congress often can’t know enough—and again,
know they can’t—to keep regulatory schemes working across time. Congress usually can’t
predict the future—can’t anticipate changing circumstances and the way they will affect
varied regulatory techniques. Nor can Congress (realistically) keep track of and respond to
fast-flowing developments as they occur. Once again, that is most obviously true when it
comes to scientific and technical matters. The “best system of emission reduction” is not
today what it was yesterday, and will surely be something different tomorrow. . . .
Over time, the administrative delegations Congress has made have helped to build a
modern Nation. Congress wanted fewer workers killed in industrial accidents. It wanted
to prevent plane crashes, and reduce the deadliness of car wrecks. It wanted to ensure
that consumer products didn’t catch fire. It wanted to stop the routine adulteration of
food and improve the safety and efficacy of medications. And it wanted cleaner air and
water. If an American could go back in time, she might be astonished by how much
progress has occurred in all those areas. It didn’t happen through legislation alone. It
happened because Congress gave broad-ranging powers to administrative agencies, and
those agencies then filled in—rule by rule by rule—Congress’s policy outlines. . . .
In rewriting [the] text, the Court substitutes its own ideas about delegations for
Congress’s. And that means the Court substitutes its own ideas about policymaking for
Congress’s. . . .
Whatever else this Court may know about, it does not have a clue about how to
address climate change. And let’s say the obvious: The stakes here are high. Yet the Court
today prevents congressionally authorized agency action to curb power plants’ carbon
dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—
the decisionmaker on climate policy. I cannot think of many things more frightening.
Respectfully, I dissent.
NOTES AND QUESTIONS
1. Has the major questions doctrine evolved? Having read both the OSHA vaccineor-test case and this one, what do you think—is major questions a straightforward
doctrine of statutory interpretation, or is it intended to enforce the nondelegation
doctrine? Do you agree with how Justice Kagan distinguished the other so-called major
questions cases—that in those cases the delegation of authority was not necessarily too
big or important, but rather simply did not fit with the statutory scheme or involved
matters outside of the agency’s lane? Is the majority narrowing the statute to avoid
123
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
constitutional concerns? Is there any other plausible interpretation of what the majority is
doing? On the other hand, Chief Justice Roberts says in conclusion that “[a] decision of
such magnitude and consequence rests with Congress itself, or an agency acting pursuant
to a clear delegation from that representative body.” Is Chief Justice Roberts explicitly
rejecting the nondelegation argument?
2. What is major? Is what is major in the eye of the beholder? Do you find Justice
Gorsuch’s signposts persuasive? Re-read Justice Kagan’s opening line in dissent. She writes
that climate change is the most pressing environmental challenge of our time. How did
she know that? Was her statement a concession that this question was a “major” one? If
not, why not? Also, what is the action here with major consequences: the agency’s
decision to regulate, or the Court’s decision striking down its regulation?
Biden v. Nebraska
600 U.S. ___, 143 S.Ct. 2355 (2023)
CHIEF JUSTICE ROBERTS delivered the opinion of the Court.
. . . . Outstanding federal student loans now total $1.6 trillion extended to 43 million
borrowers. Last year, the Secretary of Education established the first comprehensive
student loan forgiveness program, invoking the Higher Education Relief Opportunities for
Students Act of 2003 (HEROES Act) for authority to do so. The Secretary’s plan canceled
roughly $430 billion of federal student loan balances, completely erasing the debts of 20
million borrowers and lowering the median amount owed by the other 23 million from
$29,400 to $13,600. Six States sued, arguing that the HEROES Act does not authorize the
loan cancellation plan. We agree.
I
A
. . . . The Education Act specifies in detail the terms and conditions attached to
federal loans, including applicable interest rates, loan fees, repayment plans, and
consequences of default. See §§ 1077, 1080, 1087e, 1087dd. It also authorizes the
Secretary to cancel or reduce loans, but only in certain limited circumstances and to a
particular extent. Specifically, the Secretary can cancel a set amount of loans held by some
public servants—including teachers, members of the Armed Forces, Peace Corps
volunteers, law enforcement and corrections officers, firefighters, nurses, and librarians—
who work in their professions for a minimum number of years. §§ 1078–10, 1087j,
124
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
1087ee. The Secretary can also forgive the loans of borrowers who have died or been
“permanently and totally disabled,” such that they cannot “engage in any substantial
gainful activity.” § 1087(a)(1). Bankrupt borrowers may have their loans forgiven.
§ 1087(b). And the Secretary is directed to discharge loans for borrowers falsely certified
by their schools, borrowers whose schools close down, and borrowers whose schools fail
to pay loan proceeds they owe to lenders. § 1087(c).
Shortly after the September 11 terrorist attacks, Congress became concerned that
borrowers affected by the crisis—particularly those who served in the military—would
need additional assistance. As a result, it enacted the Higher Education Relief
Opportunities for Students Act of 2001. That law provided the Secretary of Education, for
a limited period of time, with “specific waiver authority to respond to conditions in the
national emergency” caused by the September 11 attacks. 115 Stat. 2386. Rather than
allow this grant of authority to expire by its terms at the end of September 2003, Congress
passed the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act).
117 Stat. 904. That Act extended the coverage of the 2001 statute to include any war or
national emergency—not just the September 11 attacks. By its terms, the Secretary “may
waive or modify any statutory or regulatory provision applicable to the student financial
assistance programs under title IV of the [Education Act] as the Secretary deems
necessary in connection with a war or other military operation or national emergency.” 20
U.S.C. § 1098bb(a)(1).
The Secretary may issue waivers or modifications only “as may be necessary to
ensure” that “recipients of student financial assistance under title IV of the [Education
Act] who are affected individuals are not placed in a worse position financially in relation
to that financial assistance because of their status as affected individuals.”
§ 1098bb(a)(2)(A). An “affected individual” is defined, in relevant part, as someone who
“resides or is employed in an area that is declared a disaster area by any Federal, State, or
local official in connection with a national emergency” or who “suffered direct economic
hardship as a direct result of a war or other military operation or national emergency, as
determined by the Secretary.” §§ 1098ee(2)(C)–(D). And a “national emergency” for the
purposes of the Act is “a national emergency declared by the President of the United
States.” § 1098ee(4).
Immediately following the passage of the Act in 2003, the Secretary issued two dozen
waivers and modifications addressing a handful of specific issues. Among other changes,
the Secretary waived the requirement that “affected individuals” must “return or repay an
overpayment” of certain grant funds erroneously disbursed by the Government, and the
requirement that public service work must be uninterrupted to qualify an “affected
125
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
individual” for loan cancellation. Additional adjustments were made in 2012, with similar
limited effects.
But the Secretary took more significant action in response to the COVID-19
pandemic. On March 13, 2020, the President declared the pandemic a national
emergency. One week later, then-Secretary of Education Betsy DeVos announced that she
was suspending loan repayments and interest accrual for all federally held student loans.
The following week, Congress enacted the Coronavirus Aid, Relief, and Economic Security
Act, which required the Secretary to extend the suspensions through the end of
September 2020. Before that extension expired, the President directed the Secretary, “[i]n
light of the national emergency,” to “effectuate appropriate waivers of and modifications
to” the Education Act to keep the suspensions in effect through the end of the year. And a
few months later, the Secretary further extended the suspensions, broadened eligibility
for federal financial assistance, and waived certain administrative requirements (to allow,
for example, virtual rather than on-site accreditation visits and to extend deadlines for
filing reports).
Over a year and a half passed with no further action beyond keeping the repayment
and interest suspensions in place. But in August 2022, a few weeks before President Biden
stated that “the pandemic is over,” the Department of Education announced that it was
once again issuing “waivers and modifications” under the Act—this time to reduce and
eliminate student debts directly. During the first year of the pandemic, the Department’s
Office of General Counsel had issued a memorandum concluding that “the Secretary does
not have statutory authority to provide blanket or mass cancellation, compromise,
discharge, or forgiveness of student loan principal balances.” After a change in
Presidential administrations and shortly before adoption of the challenged policy,
however, the Office of General Counsel “formally rescinded” its earlier legal
memorandum and issued a replacement reaching the opposite conclusion. . . .
The terms of the debt cancellation plan are straightforward: For borrowers with an
adjusted gross income below $125,000 in either 2020 or 2021 who have eligible federal
loans, the Department of Education will discharge the balance of those loans in an amount
up to $10,000 per borrower. . . . The Department of Education estimates that about 43
million borrowers qualify for relief, and the Congressional Budget Office estimates that
the plan will cancel about $430 billion in debt principal. . . .
II
[The Court first found that the Missouri Higher Education Loan Authority, a
government-created nonprofit that serviced student loans pursuant to a contract with the
126
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
U.S. Department of Education, had a concrete injury as a result in the reduction in fees it
would receive as a result of the loan discharges. The majority found that the Authority
was effectively an arm of the state such that Missouri itself had standing.–Ed.]
III
The Secretary asserts that the HEROES Act grants him the authority to cancel $430
billion of student loan principal. It does not. We hold today that the Act allows the
Secretary to “waive or modify” existing statutory or regulatory provisions applicable to
financial assistance programs under the Education Act, not to rewrite that statute from
the ground up.
A
The HEROES Act authorizes the Secretary to “waive or modify any statutory or
regulatory provision applicable to the student financial assistance programs under title IV
of the [Education Act] as the Secretary deems necessary in connection with a war or other
military operation or national emergency.” 20 U. S. C. § 1098bb(a)(1). That power has
limits. To begin with, statutory permission to “modify” does not authorize “basic and
fundamental changes in the scheme” designed by Congress. MCI Telecommunications
Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 225 (1994). Instead, that term
carries “a connotation of increment or limitation,” and must be read to mean “to change
moderately or in minor fashion.” Ibid. That is how the word is ordinarily used. . . . The
authority to “modify” statutes and regulations allows the Secretary to make modest
adjustments and additions to existing provisions, not transform them.
The Secretary’s previous invocations of the HEROES Act illustrate this point. Prior to
the COVID-19 pandemic, “modifications” issued under the Act implemented only minor
changes, most of which were procedural. Examples include reducing the number of tax
forms borrowers are required to file, extending time periods in which borrowers must
take certain actions, and allowing oral rather than written authorizations.
Here, the Secretary purported to “modif[y] the provisions of” two statutory sections
and three related regulations governing student loans. The affected statutory provisions
granted the Secretary the power to “discharge [a] borrower’s liability,” or pay the
remaining principal on a loan, under certain narrowly prescribed circumstances. 20 U. S. C.
§§ 1087, 1087dd(g)(1). Those circumstances were limited to a borrower’s death, disability,
or bankruptcy; a school’s false certification of a borrower or failure to refund loan
proceeds as required by law; and a borrower’s inability to complete an educational
program due to closure of the school. See §§ 1087(a)–(d), 1087dd(g). The corresponding
regulatory provisions detailed rules and procedures for such discharges. They also defined
127
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
the terms of the Government’s public service loan forgiveness program and provided for
discharges when schools commit malfeasance. See 34 CFR §§ 682.402, 685.212; 34 CFR pt.
674, subpt. D.
The Secretary’s new “modifications” of these provisions were not “moderate” or
“minor.” Instead, they created a novel and fundamentally different loan forgiveness
program. The new program vests authority in the Department of Education to discharge
up to $10,000 for every borrower with income below $125,000 . . . . No prior limitation on
loan forgiveness is left standing. Instead, every borrower within the specified income cap
automatically qualifies for debt cancellation, no matter their circumstances. The
Department of Education estimates that the program will cover 98.5% of all borrowers.
From a few narrowly delineated situations specified by Congress, the Secretary has
expanded forgiveness to nearly every borrower in the country.
The Secretary’s plan has “modified” the cited provisions only in the same sense that
“the French Revolution ‘modified’ the status of the French nobility”—it has abolished
them and supplanted them with a new regime entirely. Congress opted to make debt
forgiveness available only in a few particular exigent circumstances; the power to modify
does not permit the Secretary to “convert that approach into its opposite” by creating a
new program affecting 43 million Americans and $430 billion in federal debt. Labeling the
Secretary’s plan a mere “modification” does not lessen its effect, which is in essence to
allow the Secretary unfettered discretion to cancel student loans. It is “highly unlikely that
Congress” authorized such a sweeping loan cancellation program “through such a subtle
device as permission to ‘modify.’ ” MCI, 512 U.S. at 231.
The Secretary responds that the Act authorizes him to “waive” legal provisions as
well as modify them—and that this additional term “grant[s] broader authority” than
would “modify” alone. But the Secretary’s invocation of the waiver power here does not
remotely resemble how it has been used on prior occasions. Previously, waiver under the
HEROES Act was straightforward: the Secretary identified a particular legal requirement
and waived it, making compliance no longer necessary. For instance, on one occasion the
Secretary waived the requirement that a student provide a written request for a leave of
absence. On another, he waived the regulatory provisions requiring schools and guaranty
agencies to attempt collection of defaulted loans for the time period in which students
were affected individuals.
Here, the Secretary does not identify any provision that he is actually waiving. No
specific provision of the Education Act establishes an obligation on the part of student
borrowers to pay back the Government. . . .
128
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
The Secretary and the dissent go on to argue that the power to “waive or modify” is
greater than the sum of its parts. Because waiver allows the Secretary “to eliminate legal
obligations in their entirety,” the argument runs, the combination of “waive or modify”
allows him “to reduce them to any extent short of waiver”—even if the power to “modify”
ordinarily does not stretch that far. But the Secretary’s program cannot be justified by
such sleight of hand. The Secretary has not truly waived or modified the provisions in the
Education Act authorizing specific and limited forgiveness of student loans. Those
provisions remain safely intact in the U.S. Code, where they continue to operate in full
force. What the Secretary has actually done is draft a new section of the Education Act
from scratch by “waiving” provisions root and branch and then filling the empty space
with radically new text.
Lastly, the Secretary points to a procedural provision in the HEROES Act. The Act
directs the Secretary to publish a notice in the Federal Register “includ[ing] the terms and
conditions to be applied in lieu of such statutory and regulatory provisions” as the
Secretary has waived or modified. 20 U.S.C. § 1098bb(b)(2) (emphasis added). In the
Secretary’s view, that language authorizes “both deleting and then adding back in, waiving
and then putting his own requirements in”—a sort of “red penciling” of the existing law.
Section 1098bb(b)(2) is, however, “a wafer-thin reed on which to rest such sweeping
power.” Alabama Assn. of Realtors v. Department of Health and Human Servs. The
provision is no more than it appears to be: a humdrum reporting requirement. Rather
than implicitly granting the Secretary authority to draft new substantive statutory
provisions at will, it simply imposes the obligation to report any waivers and modifications
he has made. Section 1098bb(b)(2) suggests that “waivers and modifications” includes
additions. . . . But the Secretary’s ability to add new terms “in lieu of” the old is limited to
his authority to “modify” existing law. As with any other modification issued under the
Act, no new term or condition reported pursuant to § 1098bb(b)(2) may distort the
fundamental nature of the provision it alters.
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.” MCI, 512 U. S., at 234. 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.
129
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
B
In a final bid to elide the statutory text, the Secretary appeals to congressional
purpose. “The whole point of” the HEROES Act, the Government contends, “is to ensure
that in the face of a national emergency that is causing financial harm to borrowers, the
Secretary can do something.” And that “something” was left deliberately vague because
Congress intended “to grant substantial discretion to the Secretary to respond to
unforeseen emergencies.” . . .
The question here is not whether something should be done; it is who has the
authority to do it. Our recent decision in West Virginia v. EPA involved similar concerns
over the exercise of administrative power. That case involved the EPA’s claim that the
Clean Air Act authorized it to impose a nationwide cap on carbon dioxide emissions. Given
“the ‘history and the breadth of the authority that [the agency] ha[d] asserted,’ and the
‘economic and political significance’ of that assertion,” we found that there was “ ‘reason
to hesitate before concluding that Congress’ meant to confer such authority.”
So too here, where the Secretary of Education claims the authority, on his own, to
release 43 million borrowers from their obligations to repay $430 billion in student loans.
The Secretary has never previously claimed powers of this magnitude under the HEROES
Act. . . .
Under the Government’s reading of the HEROES Act, the Secretary would enjoy
virtually unlimited power to rewrite the Education Act. This would “effec[t] a
‘fundamental revision of the statute, changing it from [one sort of] scheme of . . .
regulation’ into an entirely different kind,” West Virginia—one in which the Secretary may
unilaterally define every aspect of federal student financial aid, provided he determines
that recipients have “suffered direct economic hardship as a direct result of a . . . national
emergency.” 20 U. S. C. § 1098ee(2)(D).
The “ ‘economic and political significance’ ” of the Secretary’s action is staggering by
any measure. Practically every student borrower benefits, regardless of circumstances. A
budget model issued by the Wharton School of the University of Pennsylvania estimates
that the program will cost taxpayers “between $469 billion and $519 billion,” depending
on the total number of borrowers ultimately covered. That is ten times the “economic
impact” that we found significant in concluding that an eviction moratorium implemented
by the Centers for Disease Control and Prevention triggered analysis under the major
questions doctrine. It amounts to nearly one-third of the Government’s $1.7 trillion in
annual discretionary spending. There is no serious dispute that the Secretary claims the
authority to exercise control over “a significant portion of the American economy.” Utility
130
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014) (quoting Brown & Williamson, 529
U. S., at 159).
The dissent is correct that this is a case about one branch of government arrogating
to itself power belonging to another. But it is the Executive seizing the power of the
Legislature. . . . Congress is not unaware of the challenges facing student borrowers.
“More than 80 student loan forgiveness bills and other student loan legislation” were
considered by Congress during its 116th session alone. And the discussion is not confined
to the halls of Congress. Student loan cancellation “raises questions that are personal and
emotionally charged, hitting fundamental issues about the structure of the economy.” J.
Stein, Biden Student Debt Plan Fuels Broader Debate Over Forgiving Borrowers,
Washington Post, Aug. 31, 2022.
The sharp debates generated by the Secretary’s extraordinary program stand in stark
contrast to the unanimity with which Congress passed the HEROES Act. . . . “A decision of
such magnitude and consequence” on a matter of “ ‘earnest and profound debate across
the country’ ” must “res[t] with Congress itself, or an agency acting pursuant to a clear
delegation from that representative body.” West Virginia. As then-Speaker of the House
Nancy Pelosi explained:
“People think that the President of the United States has the power for debt
forgiveness. He does not. He can postpone. He can delay. But he does not have
that power. That has to be an act of Congress.” Press Conference, Office of the
Speaker of the House (July 28, 2021).
. . . . The dissent insists that “[s]tudent loans are in the Secretary’s wheelhouse.” But
in light of the sweeping and unprecedented impact of the Secretary’s loan forgiveness
program, it would seem more accurate to describe the program as being in the
“wheelhouse” of the House and Senate Committees on Appropriations. Rather than
dispute the extent of that impact, the dissent chooses to mount a frontal assault on what
it styles “the Court’s made-up major questions doctrine.” But its attempt to
relitigate West Virginia is misplaced. As we explained in that case, while the major
questions “label” may be relatively recent, it refers to “an identifiable body of law that has
developed over a series of significant cases” spanning decades. . . .
The Secretary, for his part, acknowledges that West Virginia is the law. But he objects
that its principles apply only in cases concerning “agency action[s] involv[ing] the power to
regulate, not the provision of government benefits.” In the Government’s view, “there are
fewer reasons to be concerned” in cases involving benefits, which do not impose
131
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
“profound burdens” on individual rights or cause “regulatory effects that might prompt a
note of caution in other contexts involving exercises of emergency powers.”
This Court has never drawn the line the Secretary suggests—and for good reason.
Among Congress’s most important authorities is its control of the purse. U. S. Const., Art.
I, § 9, cl. 7. It would be odd to think that separation of powers concerns evaporate simply
because the Government is providing monetary benefits rather than imposing
obligations. . . . In King v. Burwell, 576 U. S. 473 (2015), we declined to defer to the
Internal Revenue Service’s interpretation of a healthcare statute, explaining that the
provision at issue affected “billions of dollars of spending each year and . . . the price of
health insurance for millions of people.” . . . That the statute at issue involved government
benefits made no difference in King, and it makes no difference here.
All this leads us to conclude that “[t]he basic and consequential tradeoffs” inherent in
a mass debt cancellation program “are ones that Congress would likely have intended for
itself.” West Virginia. In such circumstances, we have required the Secretary to “point to
‘clear congressional authorization’ ” to justify the challenged program. And as we have
already shown, the HEROES Act provides no authorization for the Secretary’s plan even
when examined using the ordinary tools of statutory interpretation—let alone “clear
congressional authorization” for such a program. . . .
JUSTICE BARRETT, concurring.
I join the Court’s opinion in full. I write separately to address the States’ argument
that, under the “major questions doctrine,” we can uphold the Secretary of Education’s
loan cancellation program only if he points to “ ‘clear congressional authorization’ ” for it.
In this case, the Court applies the ordinary tools of statutory interpretation to conclude
that the HEROES Act does not authorize the Secretary’s plan. The major questions
doctrine reinforces that conclusion but is not necessary to it.
Still, the parties have devoted significant attention to the major questions doctrine,
and there is an ongoing debate about its source and status. I take seriously the charge that
the doctrine is inconsistent with textualism. And I grant that some articulations of the
major questions doctrine on offer—most notably, that the doctrine is a substantive
canon—should give a textualist pause.
Yet for the reasons that follow, I do not see the major questions doctrine that way.
Rather, I understand it to emphasize the importance of context when a court interprets a
delegation to an administrative agency. Seen in this light, the major questions doctrine is a
tool for discerning—not departing from—the text’s most natural interpretation.
132
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
I
A
Substantive canons are rules of construction that advance values external to a
statute. A. Barrett, Substantive Canons and Faithful Agency, 90 B. U. L. Rev. 109, 117
(2010) (Barrett). Some substantive canons, like the rule of lenity, play the modest role of
breaking a tie between equally plausible interpretations of a statute. Others are more
aggressive—think of them as strong-form substantive canons. Unlike a tie-breaking rule, a
strong-form canon counsels a court to strain statutory text to advance a particular value.
There are many such canons on the books, including constitutional avoidance, the clearstatement federalism rules, and the presumption against retroactivity. Such rules
effectively impose a “clarity tax” on Congress by demanding that it speak unequivocally if
it wants to accomplish certain ends. J. Manning, Clear Statement Rules and the
Constitution, 110 Colum. L. Rev. 399, 403 (2010). This “clear statement” requirement
means that the better interpretation of a statute will not necessarily prevail. Instead, if the
better reading leads to a disfavored result (like provoking a serious constitutional
question), the court will adopt an inferior-but-tenable reading to avoid it. So to achieve an
end protected by a strong-form canon, Congress must close all plausible off ramps.
While many strong-form canons have a long historical pedigree, they are “in
significant tension with textualism” insofar as they instruct a court to adopt something
other than the statute’s most natural meaning. Barrett 123–124. . . .
B
Some have characterized the major questions doctrine as a strong-form substantive
canon designed to enforce Article I’s Vesting Clause. On this view, the Court overprotects
the nondelegation principle by increasing the cost of delegating authority to agencies—
namely, by requiring Congress to speak unequivocally in order to grant them significant
rulemaking power. This “clarity tax” might prevent Congress from getting too close to the
nondelegation line, especially since the “intelligible principle” test largely leaves Congress
to self-police. (So the doctrine would function like constitutional avoidance.) In addition or
instead, the doctrine might reflect the judgment that it is so important for Congress to
exercise “[a]ll legislative Powers,” Art. I, § 1, that it should be forced to think twice before
delegating substantial discretion to agencies—even if the delegation is well within
Congress’s power to make. (So the doctrine would function like the rule that Congress
must speak clearly to abrogate state sovereign immunity.) No matter which rationale
justifies it, this “clear statement” version of the major questions doctrine “loads the dice”
133
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
so that a plausible antidelegation interpretation wins even if the agency’s interpretation is
better.
While one could walk away from our major questions cases with this impression, I do
not read them this way. No doubt, many of our cases express an expectation of “clear
congressional authorization” to support sweeping agency action. But none requires “an
‘unequivocal declaration’ ” from Congress authorizing the precise agency action under
review, as our clear-statement cases do in their respective domains. And none purports to
depart from the best interpretation of the text—the hallmark of a true clear-statement
rule.
So what work is the major questions doctrine doing in these cases? I will give you the
long answer, but here is the short one: The doctrine serves as an interpretive tool
reflecting “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.” FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 133 (2000).
II
The major questions doctrine situates text in context, which is how textualists, like all
interpreters, approach the task at hand. After all, the meaning of a word depends on the
circumstances in which it is used. To strip a word from its context is to strip that word of
its meaning.
Context is not found exclusively “ ‘within the four corners’ of a statute.” Background
legal conventions, for instance, are part of the statute’s context. Thus, courts apply a
presumption of mens rea to criminal statutes, and a presumption of equitable tolling to
statutes of limitations. . . .
Context also includes common sense, which is another thing that “goes without
saying.” Case reporters and casebooks brim with illustrations of why literalism—the
antithesis of context-driven interpretation—falls short. Consider the classic example of a
statute imposing criminal penalties on “ ‘whoever drew blood in the streets.’ ” United
States v. Kirby, 7 Wall. 482, 487 (1869). Read literally, the statute would cover a surgeon
accessing a vein of a person in the street. But “common sense” counsels otherwise,
because in the context of the criminal code, a reasonable observer would “expect the
term ‘drew blood’ to describe a violent act,” Manning 2461. Common sense similarly
bears on judgments like whether a floating home is a “vessel,” Lozman v. Riviera Beach,
568 U. S. 115, 120–121 (2013), whether tomatoes are “vegetables,” Nix v. Hedden, 149 U.
S. 304, 306–307 (1893), and whether a skin irritant is a “chemical weapon,” Bond, 572 U.
S., at 860–862.
134
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
Why is any of this relevant to the major questions doctrine? Because context is also
relevant to interpreting the scope of a delegation. Think about agency law, which is all
about delegations. . . . [I]magine that a grocer instructs a clerk to “go to the orchard and
buy apples for the store.” Though this grant of apple-purchasing authority sounds
unqualified, a reasonable clerk would know that there are limits. For example, if the
grocer usually keeps 200 apples on hand, the clerk does not have actual authority to buy
1,000—the grocer would have spoken more directly if she meant to authorize such an outof-the-ordinary purchase. A clerk who disregards context and stretches the words to their
fullest will not have a job for long.
This is consistent with how we communicate conversationally. Consider a parent who
hires a babysitter to watch her young children over the weekend. As she walks out the
door, the parent hands the babysitter her credit card and says: “Make sure the kids have
fun.” Emboldened, the babysitter takes the kids on a road trip to an amusement park,
where they spend two days on rollercoasters and one night in a hotel. Was the
babysitter’s trip consistent with the parent’s instruction? Maybe in a literal sense, because
the instruction was open-ended. But was the trip consistent with
a reasonable understanding of the parent’s instruction? Highly doubtful. In the normal
course, permission to spend money on fun authorizes a babysitter to take children to the
local ice cream parlor or movie theater, not on a multiday excursion to an out-of-town
amusement park. If a parent were willing to greenlight a trip that big, we would expect
much more clarity than a general instruction to “make sure the kids have fun.” . . .
In my view, the major questions doctrine grows out of these same commonsense
principles of communication. Just as we would expect a parent to give more than a
general instruction if she intended to authorize a babysitter-led getaway, we also “expect
Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic
and political significance.’ ” That clarity may come from specific words in the statute, but
context can also do the trick. Surrounding circumstances, whether contained within the
statutory scheme or external to it, can narrow or broaden the scope of a delegation to an
agency. . . .
This expectation of clarity is rooted in the basic premise that Congress normally
“intends to make major policy decisions itself, not leave those decisions to
agencies.” United States Telecom Assn. v. FCC, 855 F. 3d 381, 419 (CADC
2017) (Kavanaugh, J., dissenting from denial of reh’g en banc). Or, as Justice Breyer once
observed, “Congress is more likely to have focused upon, and answered, major questions,
while leaving interstitial matters [for agencies] to answer themselves in the course of a
statute’s daily administration.” S. Breyer, Judicial Review of Questions of Law and Policy,
135
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
38 Admin. L. Rev. 363, 370 (1986); see also A. Gluck & L. Bressman, Statutory
Interpretation From the Inside—An Empirical Study of Congressional Drafting, Delegation,
and the Canons: Part I, 65 Stan. L. Rev. 901, 1003–1006 (2013). That makes eminent sense
in light of our constitutional structure, which is itself part of the legal context framing any
delegation. Because the Constitution vests Congress with “[a]ll legislative Powers,” Art. I,
§ 1, a reasonable interpreter would expect it to make the big-time policy calls itself, rather
than pawning them off to another branch.
Crucially, treating the Constitution’s structure as part of the context in which a
delegation occurs is not the same as using a clear-statement rule to overenforce Article I’s
nondelegation principle (which, again, is the rationale behind the substantive-canon view
of the major questions doctrine). My point is simply that in a system of separated powers,
a reasonably informed interpreter would expect Congress to legislate on “important
subjects” while delegating away only “the details.” Wayman v. Southard, 10 Wheat. 1, 43
(1825). . . .
Given these baseline assumptions, an interpreter should “typically greet” an agency’s
claim to “extravagant statutory power” with at least some “measure of skepticism.” . . .
Still, this skepticism does not mean that courts have an obligation (or even permission) to
choose an inferior-but-tenable alternative that curbs the agency’s authority—and that
marks a key difference between my view and the “clear statement” view of the major
questions doctrine. . . .
Just as an instruction to “pick up dessert” is not permission to buy a four-tier
wedding cake, Congress’s use of a “subtle device” is not authorization for agency action of
“enormous importance.” . . . Another telltale sign that an agency may have transgressed
its statutory authority is when it regulates outside its wheelhouse. . . . The shared intuition
behind these cases is that a reasonable speaker would not understand Congress to confer
an unusual form of authority without saying more.
We have also pumped the brakes when “an agency claims to discover in a longextant statute an unheralded power to regulate ‘a significant portion of the American
economy.’ ” Utility Air, 573 U. S., at 324. Of course, an agency’s post-enactment conduct
does not control the meaning of a statute, but “this Court has long said that courts may
consider the consistency of an agency’s views when we weigh the persuasiveness of any
interpretation it proffers in court.” Bittner v. United States, 598 U. S. 85, 97 (2023)
(citing Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944)). The agency’s track record can
be particularly probative in this context: A longstanding “want of assertion of power by
those who presumably would be alert to exercise it” may provide some clue that the
power was never conferred. . . .
136
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
[B]y my lights, the Court arrived at the most plausible reading of the statute in these
cases. . . . With the full picture in view, it became evident in each case that the agency’s
assertion of “highly consequential power” went “beyond what Congress could reasonably
be understood to have granted.” West Virginia.
III
As for today’s case: The Court surely could have “hi[t] the send button,” after the
routine statutory analysis set out in Part III–A. But it is nothing new for a court to
punctuate its conclusion with an additional point, and the major questions doctrine is a
good one here. It is obviously true that the Secretary’s loan cancellation program has “vast
‘economic and political significance.’ ” That matters not because agencies are incapable of
making highly consequential decisions, but rather because an initiative of this scope, cost,
and political salience is not the type that Congress lightly delegates to an agency. . . .
Granted, some context clues from past major questions cases are absent here—for
example, this is not a case where the agency is operating entirely outside its usual domain.
But the doctrine is not an on-off switch that flips when a critical mass of factors is present
....
Here, enough of those indicators are present to demonstrate that the Secretary has
gone far “beyond what Congress could reasonably be understood to have granted” in the
HEROES Act. Our decision today does not “trump” the statutory text, nor does it make this
Court the “arbiter” of “national policy.” Instead, it gives Congress’s words their best
reading.
The major questions doctrine has an important role to play when courts review
agency action of “vast ‘economic and political significance.’ ” But the doctrine should not
be taken for more than it is—the familiar principle that we do not interpret a statute for
all it is worth when a reasonable person would not read it that way.
JUSTICE KAGAN, with whom JUSTICE SOTOMAYOR and JUSTICE JACKSON join, dissenting.
. . . . The HEROES Act’s text settles the legality of the Secretary’s loan forgiveness
plan. The statute provides the Secretary with broad authority to give emergency relief to
student-loan borrowers, including by altering usual discharge rules. What the Secretary
did fits comfortably within that delegation. But the Court forbids him to proceed. As in
other recent cases, the rules of the game change when Congress enacts broad delegations
allowing agencies to take substantial regulatory measures. See, e.g., West Virginia v. EPA.
Then, as in this case, the Court reads statutes unnaturally, seeking to cabin their evident
scope. And the Court applies heightened-specificity requirements, thwarting Congress’s
137
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
efforts to ensure adequate responses to unforeseen events. The result here is that the
Court substitutes itself for Congress and the Executive Branch in making national policy
about student-loan forgiveness. . . .
[The dissent’s discussion of standing is omitted.—Ed.]
II
. . . . The majority picks the statute apart piece by piece in an attempt to escape the
meaning of the whole. But the whole—the expansive delegation—is so apparent that the
majority has no choice but to justify its holding on extra-statutory grounds. So the
majority resorts, as is becoming the norm, to its so-called major-questions doctrine. And
the majority again reveals that doctrine for what it is—a way for this Court to negate
broad delegations Congress has approved, because they will have significant regulatory
impacts. Thus the Court once again substitutes itself for Congress and the Executive
Branch—and the hundreds of millions of people they represent—in making this Nation’s
most important, as well as most contested, policy decisions.
A
. . . . Instead of specifying a particular crisis, that [HEROES Act] enables the Secretary
to act “as [he] deems necessary” in connection with any military operation or “national
emergency.” § 1098bb(a)(1). But the statute’s greater coverage came with no sacrifice of
potency. When the law’s emergency conditions are satisfied, the Secretary again has the
power to “waive or modify any statutory or regulatory provision” relating to federal
student-loan programs.
Before turning to the scope of that power, note the stringency of the triggering
conditions. Putting aside military applications, the Secretary can act only when the
President has declared a national emergency. See § 1098ee(4). Further, the Secretary may
provide benefits only to “affected individuals”—defined as anyone who “resides or is
employed in an area that is declared a disaster area . . . in connection with a national
emergency” or who has “suffered direct economic hardship as a direct result of a . . .
national emergency.” §§ 1098ee(2)(C)–(D). And the Secretary can do only what he
determines to be “necessary” to ensure that those individuals “are not placed in a worse
position financially in relation to” their loans “because of” the emergency. § 1098bb(a)(2).
That last condition, said more simply, requires the Secretary to show that the relief he
awards does not go beyond alleviating the economic effects of an emergency on affected
borrowers’ ability to repay their loans.
138
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
But if those conditions are met, the Secretary’s delegated authority is capacious. As
in the prior statutes, the Secretary has the linked power to “waive or modify any statutory
or regulatory provision” applying to the student-loan programs. § 1098bb(a)(1). . . . “Any”
of the referenced provisions means, well, any of those provisions. And those provisions
include several relating to student-loan cancellation—more precisely, specifying
conditions in which the Secretary can discharge loan principal. Now go back to the twin
verbs: “waive or modify.” To “waive” means to “abandon, renounce, or surrender”—so
here, to eliminate a regulatory requirement or condition. Black’s Law Dictionary 1894
(11th ed. 2019). To “modify” means “[t]o make somewhat different” or “to reduce in
degree or extent”—so here, to lessen rather than eliminate such a requirement. Id., at
1203. Then put the words together, as they appear in the statute: To “waive or modify” a
requirement means to lessen its effect, from the slightest adjustment up to eliminating it
altogether. Of course, making such changes may leave gaps to fill. So the statute says
what is anyway obvious: that the Secretary’s waiver/modification power includes the
ability to specify “the terms and conditions to be applied in lieu of such [modified or
waived] statutory and regulatory provisions.” § 1098bb(b)(2). Finally, attach the “waive or
modify” power to all the provisions relating to loan cancellation: The Secretary may
amend, all the way up to discarding, those provisions and fill the holes that action creates
with new terms designed to counteract an emergency’s effects on borrowers.
Before reviewing how that statutory scheme operated here, consider how it might
work for a hypothetical emergency that the enacting Congress had in the front of its
mind. . . . A terrorist organization sets off a dirty bomb in Chicago. Beyond causing deaths,
the incident leads millions of residents (including many with student loans) to flee the city
to escape the radiation. They must find new housing, probably new jobs. And still their
student-loan bills are coming due every month. To prevent widespread loan delinquencies
and defaults, the Secretary wants to discharge $10,000 for the class of affected
borrowers. Is that legal? Of course it is; it is exactly what Congress provided for. . . .
When COVID struck, Secretary DeVos immediately suspended loan repayments and
interest accrual for all federally held student loans. The majority claims it is not deciding
whether that action was lawful. Which is all well and good, except that under the
majority’s reasoning, how could it not be [unlawful]? The suspension too offered a
significant new benefit, and to an even greater number of borrowers. (Indeed, for many
borrowers, it was worth much more than the current plan’s $10,000 discharge.) So the
suspension could no more meet the majority’s pivotal definition of “modify”—as make a
“minor change[ ]”—than could the forgiveness plan. . . .
B
139
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
The tell comes in the last part of the majority’s opinion. When a court is confident in
its interpretation of a statute’s text, it spells out its reading and hits the send button. Not
this Court, not today. . . . This Court objects to Congress’s permitting the Secretary (and
other agency officials) to answer so-called major questions. Or at least it objects when the
answers given are not to the Court’s satisfaction. So the Court puts its own heavyweight
thumb on the scales. . . .
The new major-questions doctrine works not to better understand—but instead to
trump—the scope of a legislative delegation. Here is a fact of the matter: Congress
delegates to agencies often and broadly. And it usually does so for sound reasons.
Because agencies have expertise Congress lacks. Because times and circumstances
change, and agencies are better able to keep up and respond. Because Congress knows
that if it had to do everything, many desirable and even necessary things wouldn’t get
done. In wielding the major-questions sword, last Term and this one, this Court overrules
those legislative judgments. The doctrine forces Congress to delegate in highly specific
terms—respecting, say, loan forgiveness of certain amounts for borrowers of certain
incomes during pandemics of certain magnitudes. Of course Congress sometimes
delegates in that way. But also often not. Because if Congress authorizes loan forgiveness,
then what of loan forbearance? And what of the other 10 or 20 or 50 knowable and
unknowable things the Secretary could do? And should the measure taken—whether
forgiveness or forbearance or anything else—always be of the same size? Or go to the
same classes of people? Doesn’t it depend on the nature and scope of the pandemic, and
on a host of other foreseeable and unforeseeable factors? You can see the problem. It is
hard to identify and enumerate every possible application of a statute to every possible
condition years in the future. So, again, Congress delegates broadly. Except that this Court
now won’t let it reap the benefits of that choice. . . .
NOTES AND QUESTIONS
1. Justice Barrett’s opinion. What do you make of Justice Barrett’s opinion? Does
her opinion more accurately reflect how the major questions doctrine has been used in
prior cases? Whether it is an accurate descriptive account, is it normatively more
justifiable than using the doctrine as a substantive canon? Why did no other Justice sign
on to her opinion? The next section on “debating major questions” canvasses two
different defenses of the major questions doctrine—one that argues the doctrine is
justifiable as a substantive canon, and the other, by your casebook author, that argues it is
140
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
best understood as a kind of linguistic canon. (The section then canvasses some
arguments against the doctrine.) Who is right?
2. “Necessary.” As Justice Kagan points out, the statute authorizes waivers and
modification that are “necessary” to ensure that a borrower is not “placed in a worse
position financially” as a result of the national emergency. Would that have been an easier
ground to challenge the Biden Administration’s loan forgiveness program? Could one
argue that pausing interest accrual and temporarily suspending payments might be
necessary to ensure that a borrower is not worse off, but that eliminating the debt
principal might not be necessary because it makes the borrower better off? In footnote 6
of the majority’s opinion, Chief Justice Roberts wrote, “While our decision does not rest
upon that reasoning, we note that the Secretary faces a daunting task in showing that
cancellation of debt principal is ‘necessary to ensure’ that borrowers are not placed in
‘worse position[s] financially in relation to’ their loans, especially given the Government’s
prior determination that pausing interest accrual and loan repayments would achieve that
end.” Is that persuasive? Why or why not?
3. Sackett v. EPA. In the same term that Biden v. Nebraska was decided, the Court
finally resolved the meaning of the term “waters of the United States” in the Clean Water
Act. Sackett v. EPA, 598 U.S. 651 (2023). The Court had given Chevron deference to the
EPA at various times on the question of whether “wetlands” adjacent or adjoining
navigable waters. See, e.g., United States v. Riverside Bayview Homes, Inc., 474 U.S. 121,
131 (1985). In Sackett, however, the Supreme Court, without any deference to the agency,
limited the phrase to bodies of water with a “continuous surface connection” to otherwise
navigable waters. The Court explained that it “require[s] 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.” And an overly broad
interpretation of the Clean Water Act would give the EPA vast authority over lands and
properties traditionally regulated by the states. Is this “federalism canon” a manifestation
of the major questions doctrine? In fact, aren’t most substantive canons variations of the
major questions canon?
4.
Debating Major Questions
Several scholarly articles have come out in the past two years regarding the Court’s
new major questions doctrine. Most oppose it. What follows are excerpts from two
articles that oppose the new doctrine, and two articles the support it, albeit on different
grounds. As you read the following materials, consider two questions, one descriptive and
the other normative. First, how would you describe the major questions doctrine? (a) Is it
141
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
an avoidance canon, whereby the doctrine is deployed to avoid a potentially
unconstitutional result? (b) Is it a clear statement rule that insists Congress speak clearly
because some constitutional value is at stake, but Congress can nevertheless make the
delegation if it wants? (c) Is it neither, but rather a type of linguistic tool for better
interpreting statutes? Second, which if any of these accounts would be normatively
justifiable, and on what grounds?
Mila Sohoni, The Major Questions Quartet
136 Harv. L. Rev. 262 (2022)
. . . . [N]o one should mistake these cases for anything but what they are: separation
of powers cases in the guise of disputes over statutory interpretation. . . . To begin with,
the quartet unhitched the major questions exception from Chevron, which has been
silently ousted from its position as the starting point for evaluating whether an agency can
exert regulatory authority. Instead, the CDC case initiated, and the OSHA and EPA cases
completed, a transition to a new order of operations for evaluating the legality of major
regulatory action. Under the test that the quartet has now designated as the “major
questions doctrine,” the Court will not sustain a major regulatory action unless the statute
contains a clear statement that the action is authorized. The import of this shift can be
measured by the yardstick of earlier cases. If the method enunciated by the quartet is the
law, King v. Burwell and Babbitt v. Sweet Home Chapter of Communities for a Great
Oregon (among others) cannot possibly have been right, and Massachusetts v. EPA is
standing on quicksand. Yet no Justice acknowledged, let alone defended, the disjunction
between such precedents and the method charted in the quartet. . . .
The world of administrative law has recently been on tenterhooks, awaiting with
bated breath the Court’s revival of the nondelegation doctrine. Yet, strikingly, this did not
occur, despite the obvious opening for a nondelegation renaissance that these cases
supplied. . . . Rather than saying anything of substance about what the law (of
nondelegation) is, the Court instead told us that it is emphatically the province of the
judicial branch to say what the law must say clearly. . . .
The Court’s evasion of nondelegation in these decisions may presage how the Court
will—or, more precisely, will not—develop constitutional doctrine in the future. As three
of these cases exemplify, a sufficiently robust major questions doctrine greatly reduces
the need to formally revive the nondelegation doctrine. The most important work that the
nondelegation doctrine would perform can be accomplished on an ad hoc, agency-by142
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
agency, rule-by-rule basis through the mechanism of the quartet’s new clear statement
rule—a subconstitutional device that congenially skirts the need for the Court to specify
what, if anything, the nondelegation doctrine actually prohibits. . . .
Major questions challenges will load the Court’s docket for years to come. And the
impact of this doctrine will extend well beyond what is observable from federal court
filings. The quartet, with its inchoate theory of nondelegation in tow, will cause not just an
actual but an in terrorem curtailment of regulation on an ongoing basis, while placing the
onus on today’s gridlocked Congress to revisit complex regulatory schemes enacted years
or decades ago.
To inflict a consequence of this scale on the political branches demands a justification
from the Court, not a rain check. Yet a rain check is all we got. In none of the three cases
in which it ruled against the government did the Court say that a nondelegation doubt (let
alone obstacle) would exist if Congress had delegated to the agency the authority that the
agency claimed. In none of the three cases in which the government lost did the Court
adequately ground its momentous and new clear statement rule with a meaningful
constitutional justification. . . .
It is not clear what theory of nondelegation, if any, underlies and justifies the major
questions quartet. And without knowing what that underlying theory is, it becomes much
harder to sensibly apply a rule that ostensibly exists “in service of” that underlying
doctrine. The major questions quartet may seem to be a pragmatic type of light-touch
nondelegation that pumps the brakes on the occasional instance of regulatory overreach
while carefully eschewing hard constitutional limits on Congress’s power to delegate. But
whenever the Court—especially a supposedly textualist Court—imposes a requirement on
Congress that it legislate with special clarity, the Court should articulate a concrete and
specific constitutional value that justifies that rule. . . .
In . . . cases scattered over the course of twenty-two years [including MCI and Brown
& Williamson—Ed.], the Court negotiated the relationship between Chevron deference
and major questions. It did so in varying ways, to be sure. Yet the common thread
connecting these cases is that if the Court regarded a major question to be implicated, the
agency’s interpretation of the statute would not receive Chevron deference. Instead, the
Court reclaimed the “law-interpreting function” from the agency and itself supplied the
best reading of the statute. Sometimes that inquiry wound up at the same endpoint that a
search for a clear statement in the statute would reach. But the endpoints were not
always the same—as King shows—and (more importantly) the route the Court took to get
to that endpoint encompassed far more terrain than a binary inquiry into whether the
143
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
statute contained a clear statement that authorized the agency to achieve the result
sought. . . .
The old major questions exception was a check on executive power; in contrast, the
new major questions doctrine directs how Congress must draft statutes and is therefore a
check on congressional power as well. . . .
Apart from its ramifications for administrative law, the quartet raises—and leaves
unanswered—challenging questions concerning whether the Court’s new clear statement
rule is compatible with its commitment to textualism. In each of the three cases (CDC,
OSHA, and EPA) in which the government lost, strong textualist arguments existed to
support the result the Court reached. In each case, the Court could have, if not without
some difficulty, crafted a textualist opinion that would have grappled squarely with
statutory language, and only grappled with that language.
The Court did not do that. Instead, over the course of these three cases, it
enunciated a clear statement rule—the new major questions doctrine. . . .
One school of textualists has urged that textualism requires that courts apply the
ordinary meaning of statutory text, rather than bend and inflect it in accordance with
clear statement rules and substantive canons. The proliferation and the malleability of
such interpretive rules erode the neutrality and judicial constraint that textualism is
intended to promote. This strain of textualism views substantive canons and clear
statement rules as “get-out-of-text-free cards” and accordingly treats them with
suspicion.
There is another strain of textualism, however, that allows such rules, though with
limits. This “flexible” strain of textualism, to borrow Professor Tara Leigh Grove’s
terminology, regards the application of clear statement rules and substantive canons as in
keeping with the broader textualist commitments to serving as a faithful agent to
Congress and to judicial constraint. Because many such canons and rules are well known,
the argument goes, one can assume that Congress knows them too and takes them into
account when it drafts legislation.
But even flexible textualists acknowledge courts should treat such substantive
canons gingerly because of their evident potential to encourage departures from plain
text when judges discern abstract “values” in constitutional text, structure, and principles.
As urged by one defender of textualists’ use of substantive canons—then-Professor Amy
Coney Barrett—a substantive canon or clear statement rule should seek to protect “more
specific” constitutional values—“state sovereign immunity,” for example, which is specific,
rather than “fairness,” which is vague. When a substantive canon is linked to a
144
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
“reasonably specific” constitutional value, “the more even [the canon’s] application will be
across a range of cases,” and “the more specific the value, the better Congress can
anticipate its effect on a statute’s subsequent interpretation.” While flexible textualists
need not abjure such clear statement rules and canons, then, they must use them
responsibly—and they must adopt and craft new rules of this ilk very responsibly.
The real bite, then, of Justice Kagan’s criticism of the Court’s supposed adherence to
textualism is that it attacks not simply the bare propriety of clear statement rules and
substantive canons, nor simply the risk of their selective application, but also the propriety
of the Court’s creation of new clear statement rules and substantive canons that lack crisp
boundaries and that are linked only vaguely to the Constitution. . . .
Under extant intelligible principle doctrine, there’s no intelligible principle obstacle
to, or dubiety in, any of the statutes implicated in the quartet. If, on the other hand, the
silent implication of the quartet is that three of these statutes pose serious problems
under the intelligible principle test, or fail to satisfy it, that would represent a sharp break
with extant understandings of the intelligible principle inquiry. These decisions cannot
fairly be read to work such a shift sub silentio, and therefore they do not explain why a
major questions inquiry was warranted. Nor do they help us to understand whether it
would be warranted in future cases in which the statute states an intelligible principle. . . .
For now, it suffices to say that whichever theory of nondelegation, assuming there is
any, is driving the application of the new major questions doctrine, it would have helped if
the Court told us what it was. Instead, as matters stand, agencies and Congress are meant
to understand that they must beware a jabberwock of nondelegation that the Court left
unidentified and undefined. But by failing to set out the contours of the nondelegation
problem, the major questions quartet has created a shadow nondelegation doctrine that
is more formless and discretionary, and therefore potentially more dangerous, than a
precise articulation of a nondelegation problem would have been. . . .
Daniel T. Deacon & Leah M. Litman,
The New Major Questions Doctrine
109 Va. L. Rev. 1009 (2023)
The focus in the new major questions doctrine on whether an agency policy is
“politically controversial” is one of the more anti-formalist elements of the doctrine
despite its purported grounding in a formalist view of the constitutional separation of
powers. As with all canons, the major questions doctrine only matters in the set of cases
145
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
in which the court would have reached another result but for the application of the canon.
By making the courts’ interpretation depend in part on the present-day significance of the
rule, the major questions doctrine allows political activity outside of formal lawmaking
channels to affect the outcome of cases. Especially if the major questions doctrine results
in a court deviating from the best or even the otherwise unambiguous meaning of the
statute in question, this allows entities to functionally amend statutes through political
opposition rather than by doing what would otherwise be required: passing legislation. . . .
Triggering the major questions doctrine with some reference to the political
controversy surrounding a policy allows political opponents of that policy “[i]n both legal
and practical effect,” to amend an Act of Congress by essentially “repealing a portion” of
an agency’s authority. Take the OSHA vaccine case . . . . The political controversy around
vaccines meant the Court was not merely asking whether a vaccination policy fell within
the statute’s broad grant of authority according to its terms; it instead altered the inquiry
to ratchet up the required statutory specificity and clarity, effectively creating a carve out
from a broad statutory provision. So too with the decision invalidating the student debt
relief program, where the Court justified its application of the major questions doctrine in
part by citing the “earnest and profound debate across the country” about student debt
relief, as evidenced by, among other things, an opinion piece . . . .
[T]his element of the major questions doctrine functions like a potential delegation
to future political parties and people to amend a statute outside of the formal legislative
process. The doctrine allows them, well after a statute was enacted, to create the
conditions that increase the odds of an agency policy being deemed “major,” and
therefore unable to be enacted under a broad grant of authority that otherwise would
authorize it. In other words, the doctrine empowers later-in-time entities to carve out
statutory exceptions by creating political controversy around what an agency has done.
The above dynamic should be particularly troubling to textualists, who these days
tend to believe that a statute’s meaning is fixed at the time of enactment. Remember that
the major questions doctrine only matters to the extent that it causes a court to reach a
result other than it would have otherwise. And the new major questions doctrine operates
to alter the outcome of interpretive disputes based on considerations that attach to
events potentially long after a statute’s enactment. That’s deeply atextual. . . .
By basing application of the major questions doctrine in part on whether a given
policy is sufficiently controversial, the doctrine invites reasoning that tends to ideologically
align the Justices’ articulated views with those of the political party that appointed them.
Indeed, it would not be particularly surprising for a judge’s assessment about what is
politically controversial or politically significant to align with their own worldview,
146
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
worldviews which these days often closely align with those of the political party that
appointed them.
And that is precisely what seems to have been on display in the recent cases.
Compare the cases in which the Court has applied the major questions doctrine and the
cases in which the Court has not applied the doctrine. The Republican appointees on the
Court identified the CDC’s moratorium on evictions during the COVID-19 pandemic as a
major question because of its perceived political significance. The reasons given for why
the eviction moratorium was a politically significant major question sounded in concerns
reflecting the ideology and professed political philosophy of the Republican Party. Polling
indicated that over half of Democrats supported the CDC’s eviction moratorium, while just
sixteen percent of Republican voters did. The same dynamics played out in the case
challenging OSHA’s rule governing workplaces. . . .
Now consider the matters that the Court has not identified as major (spoiler alert:
they are cases in which the agency’s policy was supported by Republican officials). In Little
Sisters of the Poor v. Pennsylvania, the five Republican-appointed Justices on the Court
upheld the Trump Administration’s statutory authority to create exemptions from
regulations that required employer health insurance policies to cover certain forms of
health care. All of those five Republican Justices had signed onto opinions invoking the
major questions doctrine, but in this case they joined an opinion reasoning that the
Affordable Care Act gave the Health Resources and Services Administration “broad
discretion . . . to create the religious and moral exemptions.” The case involved an
agency’s effort to exempt employers from covering certain forms of contraception. That
issue, and specifically the existence of exemptions from health insurance coverage for
contraception, is an issue of national political significance insofar as it is politically
controversial; it is economically significant as well. Yet that concern was nowhere evident
in the Court’s opinion. . . .
Or take Trump v. Hawaii, a challenge to then-President Trump’s policy of excluding
persons from several Muslim majority countries from entering the United States. That
policy was certainly politically controversial, and there were widespread protests against it
and many of President Trump’s immigration policies. Yet there too, the Court did not even
seem to perceive that question as significant; it certainly did not allow the significance of
that question to affect the Court’s analysis of the statute. . . .
A . . . skepticism of regulatory novelty is now firmly part of the major questions
doctrine. . . . [T]he novelty of an agency’s regulatory approach is an indication that the
policy is major and therefore likely not authorized by statute. . . . [T]he novelty of an
agency’s regulation has increasingly featured in the Court’s major questions cases and has
147
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
also taken on additional significance. It has now hardened into a central principle guiding
the application of the doctrine. . . .
[T]here are myriad reasons why an agency might not adopt a particular regulation
aside from the agency (or anyone) thinking that the statute did not authorize the action in
question. Indeed, the federal government argued that OSHA adopted the vaccination
policy only after it had concluded that the measures adopted to date by employers were
not effective in controlling the spread of COVID-19. So the fact that the agency took a new
course in response to a developing problem could just reflect the agency’s response to
changed circumstances and new information; it is not a reliable proxy for the agency’s
view that it lacked certain kinds of authority under a statute. . . .
By discouraging novel exercises of agency authority, the new major questions
doctrine prevents an agency from using its greater expertise and flexibility in precisely
those situations where agencies’ greater expertise and flexibility are likely to be most
valuable: when the agency’s considered expertise, perhaps in conjunction with
unanticipated changes or new information, counsels a previously untried regulatory
approach.
Take the expertise rationale for delegations. The premise of the expertise rationale is
that Congress is not likely to know how or when or in what context a particular goal might
be achieved. When Congress operates under those conditions, the thinking goes, it may
delegate authority to an agency, which is more likely to know the best solution. Yet the
major questions doctrine requires Congress to anticipate many of the means that an
agency might use to pursue a particular goal. The fact that Congress did not anticipate a
particular method of regulation (and perhaps could not have) is no longer an explanation
for why Congress might instead have used a broad and unspecific delegation to an agency.
Under the major questions doctrine, it is a reason why such a delegation may not be used
in a particular way.
Or consider the flexibility rationale for delegations to agencies. The premise behind
this rationale is that there may be unanticipated problems, crises, or factual developments
that arise that may require adaptation along the way. Here too, when Congress legislates
in a field where this might be true, it may rely on a delegatory approach. Yet, the major
questions doctrine requires Congress to anticipate circumstances that might precipitate
an agency action and possible responses that an agency might adopt. This too inverts the
reasons why Congress might rely on and might need to rely on delegations into the bases
for restricting the delegation. . . .
148
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
Louis J. Capozzi III, The Past and Future
of the Major Questions Doctrine
84 Ohio St. L.J. 191 (2023)
. . . . The major questions doctrine sits upon an uneasy throne, its legitimacy
constantly questioned. Many scholars have argued that the major questions doctrine’s
clear-statement rule is a recent innovation invented by Justices eager to weaken the
administrative state. Justice Kagan’s dissent suggested the same, arguing the Court
“magically” conjured the “arrival of the ‘major questions doctrine’ ” as part of an “antiadministrative-state” agenda. Even more sympathetic commentators have admitted “it is
not entirely clear where the doctrine comes from,” “rais[ing] questions about [its]
justification.”
But the major questions doctrine is not entirely novel. The doctrine has a history that
has largely been overlooked by scholars. That history reveals a doctrinal ancestor: a clearstatement rule in the mid-to-late 1800s to limit delegations of authority to administrative
agencies. In fact, courts applied a general rule against any implied delegations, with
perhaps more stringency in cases deemed to involve major questions. The doctrine was
first applied in state courts. But the Supreme Court prominently invoked the doctrine in
ICC v. Cincinnati, New Orleans & Texas Pacific Railway Co. (The Queen and Crescent Case),
confronting a major claim to power by the Interstate Commerce Commission. Indeed,
history shows the Court has long—if inconsistently—enforced Article I’s lawmaking
requirements through a clear-statement rule against implied delegations and its doctrinal
sibling: the nondelegation doctrine. Rather than being a modern fabrication, West Virginia
is merely the latest chapter of an old book. . . .
Article I “vested” “all legislative Powers herein granted” in “a Congress of the United
States.” Believing that excess lawmaking was a threat to liberty, the framers drafted
Article I to make it difficult for Congress to pass laws. Before a bill can become law,
majorities of both the House of Representatives and the Senate must concur; and either
the President must also agree or two thirds of both houses must override his veto.
Altogether, Article I’s system of bicameralism and presentment “represents the Framers’
decision that the legislative power of the Federal Government be exercised in accord with
a single, finely wrought and exhaustively considered, procedure.” Influenced by John
Locke, there was also general agreement in the 1800s that Congress could not circumvent
these rules by transferring its legislative power to other entities.
By contrast, the President was not given the power to make laws. . . .
149
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
The railroads were frequent targets of new administrative agencies; by 1887, around
twenty states had established commissions regulating the railroads.
In the ensuing conflicts between state agencies and railroads, courts demanded clear
evidence that agencies really had the power to regulate. To be more specific, courts
employed a general presumption against implied delegations by legislatures. In cases
involving both major and mundane stakes, courts demanded a clear statement that the
legislature intended to delegate the power at issue. By 1891, the rule was well established
enough that Sutherland’s treatise on statutory interpretation recited it. And Frank
Goodnow’s early 1905 treatise on American administrative law also recognized that that
the power of administrative agencies to issue regulations must be “expressly given.”
A good example of the rule’s application comes from 1888, when the Oregon
Supreme Court considered whether the state legislature had given the Oregon Board of
Railroad Commissioners the power to investigate and adjudicate allegations that railroads
had overcharged consumers. [Bd. of R.R. Comm’rs of Or. v. Or. Ry. & Navigation Co., 19 P.
702, 703 (Or. 1888)]. The court held that the legislature had not, applying the rule against
implied delegations. The court claimed that “for a very long time” it had “been considered
the safer and better rule, in determining questions of jurisdiction of boards and officers
exercising powers delegated to them by the legislature, to hold that their authority must
affirmatively appear from the commission under which they claim to act.” Not only that,
when “creat[ing] a commission and cloth[ing] it with important functions,” the court held
that the state legislature needed to “define and specify the authority given it so clearly
that no doubt can reasonably arise in the mind of the public as to its extent.” Applying
that rule, the court expressed its fear that, under the agency’s view, it “would be the most
important tribunal in the state,” making the court skeptical the “legislature would confer
so important a prerogative upon a board of commissioners.” The court then concluded
the agency lacked a clear statement of authority. . . .
[In ICC v. Cincinnati, New Orleans & Tex. Pac. Ry. Co. (The Queen and Crescent Case),
167 U.S. 479, 481 (1897),] [r]ather than relying on ordinary statutory interpretation, the
Court applied a rule that looks similar to the major questions doctrine applied in West
Virginia. First, the Court explained that the power at issue was both “legislative” and very
important. As to the nature of the power, the Court distinguished between “prescrib[ing]
rates which shall be charged in the future,” which it deemed a “legislative act,” and the
“judicial act” of reviewing whether rates charged in the past were just and reasonable.
Having established that the power at issue was legislative, the Court repeatedly
emphasized the importance of the ICC’s claimed power to set railroad freight rates. “The
importance of the question [at stake] cannot be overestimated,” the Court explained,
150
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
because “[b]illions of dollars [were] invested in railroad properties” and “[m]illions of
passengers, as well as millions of tons of freight, [were] moved each year by the railroad
companies[.]” And the power to set rates was “so vast and comprehensive, so largely
affecting the rights of carrier and shipper, as well as indirectly all commercial
transactions[.]”
Having concluded that the ICC was claiming “a power of supreme delicacy and
importance,” the Court imposed a heightened statutory burden for the ICC to prove
Congress had granted it the power to set carriage rates. Reciting the rule previously
applied in state courts, the Court insisted that “[t]he grant of such a power is never to be
implied.” Rather, such a delegation must be “clear and direct”—“open to no
misconstruction.” . . .
Why did courts develop a rule against implied delegations? Part of the motivation
was likely a formalist concern rooted in the separation of powers. Disclaimers that
agencies are subject to legislative control are found repeatedly in these decisions,
regardless of whether the agency won or lost. For example, after the Minnesota Supreme
Court found it “perfectly evident” that the legislature had delegated the authority to
prescribe railroad rates, the court reaffirmed that “[i]t is, of course, one of the settled
maxims in constitutional law, that the power conferred upon the legislature to make laws
cannot be delegated by that department to any other body.” . . .
Ilan Wurman, Importance and Interpretive Questions
110 Va. L. Rev. 909 (2024)
. . . . Perhaps the major questions doctrine is simply the nondelegation doctrine
deployed as a canon of constitutional avoidance, or a blend of avoidance and a clearstatement requirement. Under the modern formulation, constitutional avoidance allows
courts to adopt narrowing constructions of statutes when they have “serious doubts” as
to the statute’s constitutionality. This version of the doctrine would be hard to defend for
two reasons. First, constitutional avoidance is generally indefensible: it allows courts to
rewrite statutes without having actually to decide that the statute as Congress wrote it
violates the Constitution. Second, even if the canon were otherwise legitimate, we would
need to know what the serious constitutional doubt is, and thus far the Court has not
explained what majorness has to do with nondelegation. That’s not to say there is no
connection, but that the Court has not explicated it precisely because under constitutional
avoidance it does not have to do so.
151
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
The fourth and most recent version, at least as most academics understand it, is that
the doctrine is one among many clear statement rules, such as the demand for a clear
statement to abrogate sovereign immunity, to apply the Administrative Procedure Act to
the President, or to make regulatory requirements applicable to ships sailing under
foreign flags. Major questions, at least as currently theorized, also seems a poor fit for this
category. Ordinarily clear statement rules exist to advance some constitutional value—like
federalism or state sovereignty—and apply even against otherwise unambiguous statutes.
But Congress can take the relevant action so long as it speaks clearly and specifically. That
is, neither the best reading of a statute, nor an unambiguous statute, is enough; specificity
is also required. In the major questions cases there is a constitutional value
(nondelegation) that may be motivating the Court, but it is not fully clear how the canon
relates to or advances the doctrine, and, if it does, whether Congress’s delegations would
be constitutional even if it did speak clearly. The clear-statement version also contradicts
the Chevron framework (if we care about that) and appears to allow courts to ignore even
a statute’s plain meaning.
There is a way to explain, if not all, then certainly some of the cases, however, that
constructs a coherent and defensible version of the doctrine. In each, the statute was
plausibly ambiguous. And, in each, the Court can be understood to have resolved the
ambiguity by adopting the narrower reading of the statute on the ground that, as a matter
of legislative intent, it was more plausible to think that Congress intended the narrower
reading. Thus, the Court arrived at what it deemed the best reading of the statute, and
not necessarily a clear or unambiguous reading. It is also possible that the Court is
demanding unambiguous, though not necessarily specific, statutory language; and usually
the best reading of an otherwise ambiguous statute is that it does not do major,
controversial things without being clearer about it. That is just another way of saying that
“Congress does not hide elephants in mouseholes.” But sometimes a hole is elephant
sized, and the best reading of the statute suggests that it contains an elephant whether or
not Congress was clear about it [as in King v. Burwell].
In other words, when the Court asks for a clear statement, it does not have to be
understood as deploying the same concept as other clear statement rules—what some
have called “super strong clear statement rules”—where both clarity and specificity are
required. . . .
On this conceptualization, the importance of a purported grant of authority would
operate as a kind of linguistic canon: ordinarily, lawmakers and private parties tend to
speak clearly, and interpreters tend to expect clarity, when those lawmakers or parties
authorize others to make important decisions on their behalf.
152
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
Although “linguistic” in the sense that it is about how speakers use and interpret
language, such an “importance canon” is unlike other linguistic canons: it is about how
people and lawmakers use language in a circumscribed range of substantive contexts,
namely, the delegation of important authorities to other parties. But it is unlike
substantive canons: it does not flow from any substantive policy encoded in the
Constitution or in longstanding tradition. One might call it a “quasi” linguistic canon,
although the label does not much matter. Scholars have shown that the dividing line
between linguistic and substantive canons is often thinner than traditionally believed, and
there may be ambiguity-resolving canons that defy either the linguistic or substantive
label, such as the longstanding and contemporaneous interpretations canon.
However labeled, such a canon may be consistent with textualism . . . .
The inquiry . . . is not whether Congress likes to delegate important questions
through broad language—it often does—but rather whether it is likely to do so through
ambiguous language. True, scholars have noted that Congress often compromises on
ambiguous, and not only broad, language. . . . And empirical research has shown that
Congress does sometimes legislate with deliberate ambiguity to achieve greater
consensus.
Whether Congress is likely to delegate the resolution of important questions through
ambiguous statutory language, however, is the question, and it is an open one. The only
available study suggests that the major questions canon is an accurate description of how
Congress legislates. Abbe Gluck and Lisa Bressman [Abbe R. Gluck & Lisa Schultz
Bressman, Statutory Interpretation from the Inside—An Empirical Study of Congressional
Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 1003–04 (2013)]
surveyed congressional drafters and described their findings as follows:
Our findings offer some confirmation for the major questions doctrine—the
idea that drafters intend for Congress, not agencies, to resolve these types of
questions. More than 60% of our respondents corroborated this assumption.
Only 28% of our respondents indicated that drafters intend for agencies to fill
ambiguities or gaps relating to major policy questions; only 38% indicated that
drafters intend for agencies to fill ambiguities or gaps relating to questions of
major economic significance; and only 33% indicated that drafters intend for
agencies to fill ambiguities or gaps relating to questions of major political
significance (answering questions that tracked the Court’s three formulations of
the major questions doctrine). We also note that we did not find differences
across respondents based on whether they worked for members in the majority
or the minority of Congress, which suggests that, at least for our respondents,
153
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
the answer did not depend on whether the respondent was a member of the
same party as the President.
. . . . That analysis makes intuitive sense. Deliberate ambiguity benefits both parties
when it comes to issues that are not sufficiently important to scuttle an entire piece of
legislation. But whether to tackle climate change through CO2 regulation, or to regulate
cigarettes, or to allow a public health agency to prohibit evictions, are probably not the
kinds of things legislators leave to strategic ambiguity; they are the kinds of things that
one side wins and the other loses. . . .
To the extent textualists are supposed to ignore legislative intent and focus on public
understanding, using importance to resolve interpretive ambiguity may also be consistent
with how ordinary speakers use language. At least, insights from philosophy of language
help explain why courts (and people) are more likely to find statutory ambiguities in cases
involving questions of major political and economic significance. Those same insights also
suggest that ordinary readers are likely to resolve such ambiguities against an agency
purporting to take major and consequential actions.
As Ryan Doerfler has explained [in Ryan D. Doerfler, High-Stakes Interpretation, 116
Mich. L. Rev. 523, 527 (2018)], “to say that the meaning of a statute is ‘clear’ or ‘plain’ is,
in effect, to say that one knows what that statute means.” And, “[a]s numerous
philosophers have observed, . . . ordinary speakers attribute ‘knowledge’—and, in turn,
‘clarity’—more freely or less freely depending upon the practical stakes.” “In low-stakes
situations,” Doerfler explains, “speakers are willing to concede that a person ‘knows’ this
or that given only a moderate level of justification.” If the stakes are high, in contrast,
“speakers require greater justification before allowing that someone ‘knows’ that same
thing, holding constant that person’s evidence.” . . .
The application to some of the major questions cases is intuitive, at least as to the
threshold question of ambiguity. The meaning of an “occupational health and safety
standard” may seem straightforward in an ordinary, relatively low-stakes regulation of the
workplace. We might “know” that the statute permits such regulations, or find the statute
is “clear” in this regard. But when dealing with a regulation that imposes a requirement on
millions of individuals, that persists beyond the workplace itself, and which requirement is
itself hugely controversial, it is intuitive to think that ordinary speakers would in fact
demand more epistemic confidence before concluding that the statute in fact authorizes
such a requirement. In other words, ordinary readers and speakers are more likely to find
the statute ambiguous in that context than in a relatively lower-stakes context.
154
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
More to the present point, these same insights suggest that, because ordinary
speakers demand clearer proofs when making assertions with high stakes generally, they
would demand clearer proofs that the agency has the asserted power when the regulation
involves high stakes. . . . In most major questions cases, the high-stakes proposition is,
“the agency has authority to do X.” It is that proposition that needs to be proven with
great epistemic confidence . . . .
This argument does assume a certain framing of the question: whether the statute
authorizes the agency. It is possible to reframe the question as whether the agency’s
action is contrary to law, and then Doerfler’s insights suggest that the judge should
demand more epistemic certainty before deciding that question against the agency in the
context of a consequential rulemaking. Neither the major questions canon nor textualism
more broadly can tell us which of these two framings is correct; it is a matter of the legal
system’s other features. . . .
Fortunately, the legal system already contingently addresses this question of framing
differently: because agencies are creatures of statute, they must demonstrate authority
for their actions. Thus, as a matter of constitutional structure, the agencies are the
asserters of the legal claim and bear the burden of proof. Even if one does not buy this
distribution of proof burdens, it is enough to say that the question addressed here is the
meaning of the statute, which is not necessarily the same question as whether the agency
has acted unlawfully; and on that former question, the insights about high-stakes
interpretation militate in favor of a major questions canon of some sort. . . .
Historical research reveals that it was commonly understood in many different
contexts that, ordinarily, lawmakers and ordinary people do not delegate important
authorities without being more explicit than they might be in other contexts. . . .
That is what James Madison argued in opposition to the Bank of the United States.
“It cannot be denied that the power proposed to be exercised is an important power. As a
charter of incorporation the bill creates an artificial person previously not existing in law,”
he said. “It confers important civil rights and attributes which could not otherwise be
claimed. It is, though not precisely similar, at least equivalent to the naturalization of an
alien, by which certain new civil characters are acquired by him. Would Congress have had
the power to naturalize if it had not been expressly given?” Here we see that Madison
argued that incorporation of a bank is an important power, similar to the naturalization
power—and we would not lightly presume that Congress had such powers without
express authorization. Later in his speech, he added, “Had the power of making treaties,
for example, been omitted, however necessary it might have been, the defect could only
155
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
have been lamented or supplied by an amendment of the Constitution.” Important
powers are generally not delegated through cryptic language or implication. . . .
Versions of this rule persist to this day in modern agency law. The Third Restatement
explains that “[e]ven if a principal’s instructions or grant of authority to an agent leave
room for the agent to exercise discretion, the consequences that a particular act will
impose on the principal may call into question whether the principal has authorized the
agent to do such acts.” For example, “[a] reasonable agent should consider whether the
principal intended to authorize the commission of collateral acts fraught with major legal
implications for the principal, such as granting a security interest in the principal’s
property or executing an instrument confessing judgment.” An agent might still bind the
principal with regard to such matters, but at least there will be a question as to whether
more clarity was required. . . .
Finally, it might be suggested that the arguments here put forward about the role of
importance in resolving interpretive questions might apply not only to ambiguity, but to
broad language as well. That would militate in favor of a clear statement rule. To take a
quotidian example, suppose a parent tells a nanny to “have fun with the kids for the day.”
Although broad and unambiguous, surely the parent did not mean to suggest that the
nanny can go on a joyride or buy plane tickets and take the kids to Disneyland. Sometimes
broad yet unambiguous statements are not enough to authorize such important activities.
This is similar to the example that Justice Barrett subsequently used—and which she
argued militates in favor of the major questions doctrine.
Whether that context translates to congressional delegations to agencies is a matter
of social facts about how Congress actually operates and how people understand
Congress to operate—or, as in agency law, how Congress and agencies ordinarily interact.
As noted previously, Congress often does delegate important questions to the agency
through broad language, such as when it authorizes an agency to grant licenses “in the
public interest.” And more generally Congress does compromise on broad statutory
delegations. . . . The claim throughout has been only that importance can and perhaps
should play a role in resolving interpretive questions involving ambiguities. . . .
5.
The Net Neutrality Saga
This section presents a case study in a particular regulation, colloquially known as
“net neutrality.” The leading Supreme Court case was decided firmly within the thenexisting Chevron framework. The case, however, remains relevant. How should the statute
be interpreted today, post-Loper Bright? Was the statute ever actually ambiguous, or is
156
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
the nature of service over the Internet an evolving, fact-based question? Might it be a
major question?
And how would you apply to this case the Court’s dictum in Loper Bright about
“statutory stare decisis”? As you shall see, the Court held that the statute was ambiguous
and therefore treating Internet Service Providers (ISPs) as information services rather than
as telecommunications services (which could be subject to common carrier rules like “net
neutrality”) was permissible. Does stare decisis mean that if the agency continues to treat
ISPs as information services, for which net neutrality would not be allowed, the courts will
continue to respect that decision? What if the FCC tries to impose net neutrality and treat
ISPs as a telecommunications service? Do the courts, in that situation, decide the matter
de novo? It is hard to know what the future courts will do. For now, here is the leading,
pre-Loper Bright case on the statute.
Nat’l Cable & Telecommunications Ass’n v.
Brand X Internet Servs.
545 U.S. 967 (2005)
JUSTICE THOMAS delivered the opinion of the Court.
Title II of the Communications Act of 1934 subjects all providers of
“telecommunications servic[e]” to mandatory common-carrier regulation, § 153(44). In
the order under review, the Federal Communications Commission concluded that cable
companies that sell broadband Internet service do not provide “telecommunications
servic[e]” as the Communications Act defines that term, and hence are exempt from
mandatory common-carrier regulation under Title II. We must decide whether that
conclusion is a lawful construction of the Communications Act under Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and the Administrative
Procedure Act. We hold that it is.
I
The traditional means by which consumers in the United States access the network of
interconnected computers that make up the Internet is through “dial-up” connections
provided over local telephone facilities. Using these connections, consumers access the
Internet by making calls with computer modems through the telephone wires owned by
local phone companies. Internet service providers (ISPs), in turn, link those calls to the
Internet network, not only by providing a physical connection, but also by offering
157
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
consumers the ability to translate raw Internet data into information they may both view
on their personal computers and transmit to other computers connected to the Internet.
Technological limitations of local telephone wires, however, retard the speed at which
data from the Internet may be transmitted through end users’ dial-up connections. Dialup connections are therefore known as “narrowband,” or slower speed, connections.
“Broadband” Internet service, by contrast, transmits data at much higher speeds.
There are two principal kinds of broadband Internet service: cable modem service and
Digital Subscriber Line (DSL) service. Cable modem service transmits data between the
Internet and users’ computers via the network of television cable lines owned by cable
companies. DSL service provides high-speed access using the local telephone wires owned
by local telephone companies. Cable companies and telephone companies can either
provide Internet access directly to consumers, thus acting as ISPs themselves, or can lease
their transmission facilities to independent ISPs that then use the facilities to provide
consumers with Internet access. Other ways of transmitting high-speed Internet data into
homes, including terrestrial- and satellite-based wireless networks, are also emerging.
II
At issue in these cases is the proper regulatory classification under the
Communications Act of broadband cable Internet service. The Act, as amended by the
Telecommunications Act of 1996, defines two categories of regulated entities relevant to
these cases: telecommunications carriers and information-service providers. The Act
regulates telecommunications carriers, but not information-service providers, as common
carriers. Telecommunications carriers, for example, must charge just and reasonable,
nondiscriminatory rates to their customers, 47 U.S.C. §§ 201–209, design their systems so
that other carriers can interconnect with their communications networks, § 251(a)(1), and
contribute to the federal “universal service” fund, § 254(d). These provisions are
mandatory, but the Commission must forbear from applying them if it determines that the
public interest requires it. §§ 160(a), (b). Information-service providers, by contrast, are
not subject to mandatory common-carrier regulation under Title II . . . .
These two statutory classifications originated in the late 1970’s, as the Commission
developed rules to regulate data-processing services offered over telephone wires. That
regime . . . distinguished between “basic” service (like telephone service) and “enhanced”
service (computer-processing service offered over telephone lines). The . . . rules defined
both basic and enhanced services by reference to how the consumer perceives the service
being offered.
158
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
In particular, the Commission defined “basic service” as “a pure transmission
capability over a communications path that is virtually transparent in terms of its
interaction with customer supplied information.” By “pure” or “transparent” transmission,
the Commission meant a communications path that enabled the consumer to transmit an
ordinary-language message to another point, with no computer processing or storage of
the information, other than the processing or storage needed to convert the message into
electronic form and then back into ordinary language for purposes of transmitting it over
the network—such as via a telephone or a facsimile. Basic service was subject to commoncarrier regulation.
“[E]nhanced service,” however, was service in which “computer processing
applications [were] used to act on the content, code, protocol, and other aspects of the
subscriber’s information,” such as voice and data storage services . . . . By contrast to basic
service, the Commission decided not to subject providers of enhanced service, even
enhanced service offered via transmission wires, to Title II common-carrier regulation. . . .
The definitions of the terms “telecommunications service” and “information service”
established by the 1996 Act are similar to the . . . basic-and enhanced-service
classifications. “Telecommunications service”—the analog to basic service—is “the
offering of telecommunications for a fee directly to the public . . . regardless of the
facilities used.” 47 U.S.C. § 153(46). “Telecommunications” is “the transmission, between
or among points specified by the user, of information of the user’s choosing, without
change in the form or content of the information as sent and received.” § 153(43).
“Telecommunications carrier[s]”—those subjected to mandatory Title II common-carrier
regulation—are defined as “provider[s] of telecommunications services.” § 153(44). And
“information service”—the analog to enhanced service—is “the offering of a capability for
generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making
available information via telecommunications. . . .” § 153(20).
In September 2000, the Commission initiated a rulemaking proceeding to, among
other things, apply these classifications to cable companies that offer broadband Internet
service directly to consumers. In March 2002, that rulemaking culminated in the
Declaratory Ruling under review in these cases. In the Declaratory Ruling, the Commission
concluded that broadband Internet service provided by cable companies is an
“information service” but not a “telecommunications service” under the Act, and
therefore not subject to mandatory Title II common-carrier regulation. . . . Because
Internet access provides a capability for manipulating and storing information, the
Commission concluded that it was an information service.
159
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
The integrated nature of Internet access and the high-speed wire used to provide
Internet access led the Commission to conclude that cable companies providing Internet
access are not telecommunications providers. This conclusion, the Commission reasoned,
followed from the logic of the Universal Service Report. The Report had concluded that,
though Internet service “involves data transport elements” because “an Internet access
provider must enable the movement of information between customers’ own computers
and distant computers with which those customers seek to interact,” it also “offers end
users information-service capabilities inextricably intertwined with data transport.” . . . In
other words, the Commission reasoned that consumers use their cable modems not to
transmit information “transparently,” such as by using a telephone, but instead to obtain
Internet access.
The Commission applied this same reasoning to cable companies offering broadband
Internet access. Its logic was that, like non-facilities-based ISPs, cable companies do not
“offe[r] telecommunications service to the end user, but rather . . . merely us[e]
telecommunications to provide end users with cable modem service.” . . .
The Court of Appeals . . . vacated the ruling to the extent it concluded that cable
modem service was not “telecommunications service” under the Communications Act. It
held that the Commission could not permissibly construe the Communications Act to
exempt cable companies providing Internet service from Title II regulation. Rather than
analyzing the permissibility of that construction under the deferential framework of
Chevron, however, the Court of Appeals grounded its holding in the stare decisis effect of
AT & T Corp. v. Portland, 216 F.3d 871 (9th Cir. 2000). Portland held that cable modem
service was a “telecommunications service,” though the court in that case was not
reviewing an administrative proceeding and the Commission was not a party to the case.
Nevertheless, Portland’s holding, the Court of Appeals reasoned, overrode the contrary
interpretation reached by the Commission in the Declaratory Ruling. . . .
III
We first consider whether we should apply Chevron’s framework to the
Commission’s interpretation of the term “telecommunications service.” We conclude that
we should. We also conclude that the Court of Appeals should have done the same,
instead of following the contrary construction it adopted in Portland. . . .
A court’s prior judicial construction of a statute trumps an agency construction
otherwise entitled to Chevron deference only if the prior court decision holds that its
construction follows from the unambiguous terms of the statute and thus leaves no room
for agency discretion. This principle follows from Chevron itself. . . . Chevron’s premise is
160
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
that it is for agencies, not courts, to fill statutory gaps. The better rule is to hold judicial
interpretations contained in precedents to the same demanding Chevron step one
standard that applies if the court is reviewing the agency’s construction on a blank slate:
Only a judicial precedent holding that the statute unambiguously forecloses the agency’s
interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting
agency construction.
A contrary rule would produce anomalous results. It would mean that whether an
agency’s interpretation of an ambiguous statute is entitled to Chevron deference would
turn on the order in which the interpretations issue: If the court’s construction came first,
its construction would prevail, whereas if the agency’s came first, the agency’s
construction would command Chevron deference. . . .
Against this background, the Court of Appeals erred in refusing to apply Chevron to
the Commission’s interpretation of the definition of “telecommunications service,” 47
U.S.C. § 153(46). Its prior decision in Portland held only that the best reading of § 153(46)
was that cable modem service was a “telecommunications service,” not that it was the
only permissible reading of the statute. . . .
IV
We next address whether the Commission’s construction of the definition of
“telecommunications service,” 47 U.S.C. § 153(46), is a permissible reading of the
Communications Act under the Chevron framework. . . .
A
We first set forth our understanding of the interpretation of the Communications Act
that the Commission embraced. The issue before the Commission was whether cable
companies providing cable modem service are providing a “telecommunications service”
in addition to an “information service.”
The Commission first concluded that cable modem service is an “information
service,” a conclusion unchallenged here. The Act defines “information service” as “the
offering of a capability for generating, acquiring, storing, transforming, processing,
retrieving, utilizing, or making available information via telecommunications . . . .”
§ 153(20). Cable modem service is an information service, the Commission reasoned,
because it provides consumers with a comprehensive capability for manipulating
information using the Internet via high-speed telecommunications. That service enables
users, for example, to browse the World Wide Web, to transfer files from file archives
available on the Internet via the “File Transfer Protocol,” and to access e-mail and Usenet
161
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
newsgroups. Like other forms of Internet service, cable modem service also gives users
access to the Domain Name System (DNS). DNS, among other things, matches the Web
page addresses that end users type into their browsers (or “click” on) with the Internet
Protocol (IP) addresses of the servers containing the Web pages the users wish to access.
All of these features, the Commission concluded, were part of the information service that
cable companies provide consumers.
At the same time, the Commission concluded that cable modem service was not
“telecommunications service.” “Telecommunications service” is “the offering of
telecommunications for a fee directly to the public.” 47 U.S.C. § 153(46).
“Telecommunications,” in turn, is defined as “the transmission, between or among points
specified by the user, of information of the user’s choosing, without change in the form or
content of the information as sent and received.” § 153(43). The Commission conceded
that, like all information-service providers, cable companies use “telecommunications” to
provide consumers with Internet service; cable companies provide such service via the
high-speed wire that transmits signals to and from an end user’s computer. For the
Commission, however, the question whether cable broadband Internet providers “offer”
telecommunications involved more than whether telecommunications was one necessary
component of cable modem service. Instead, whether that service also includes a
telecommunications “offering” “turn[ed] on the nature of the functions the end user is
offered,” for the statutory definition of “telecommunications service” does not “res[t] on
the particular types of facilities used,” see § 153(46) (definition of “telecommunications
service” applies “regardless of the facilities used”).
Seen from the consumer’s point of view, the Commission concluded, cable modem
service is not a telecommunications offering because the consumer uses the high-speed
wire always in connection with the information-processing capabilities provided by
Internet access, and because the transmission is a necessary component of Internet
access: “As provided to the end user the telecommunications is part and parcel of cable
modem service and is integral to its other capabilities.” The wire is used, in other words,
to access the World Wide Web, newsgroups, and so forth, rather than “transparently” to
transmit and receive ordinary-language messages without computer processing or storage
of the message. The integrated character of this offering led the Commission to conclude
that cable modem service is not a “stand-alone,” transparent offering of
telecommunications.
B
This construction passes Chevron’s first step. Respondents argue that it does not, on
the ground that cable companies providing Internet service necessarily “offe[r]” the
162
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
underlying telecommunications used to transmit that service. The word “offering” as used
in § 153(46), however, does not unambiguously require that result. Instead, “offering” can
reasonably be read to mean a “stand-alone” offering of telecommunications, i.e., an
offered service that, from the user’s perspective, transmits messages unadulterated by
computer processing. That conclusion follows not only from the ordinary meaning of the
word “offering,” but also from the regulatory history of the Communications Act.
Cable companies in the broadband Internet service business “offe[r]” consumers an
information service in the form of Internet access and they do so “via
telecommunications,” § 153(20), but it does not inexorably follow as a matter of ordinary
language that they also “offe[r]” consumers the high-speed data transmission
(telecommunications) that is an input used to provide this service, § 153(46). We have
held that where a statute’s plain terms admit of two or more reasonable ordinary usages,
the Commission’s choice of one of them is entitled to deference. . . . The term “offe[r]” as
used in the definition of telecommunications service, § 153(46), is ambiguous in this way.
It is common usage to describe what a company “offers” to a consumer as what the
consumer perceives to be the integrated finished product, even to the exclusion of
discrete components that compose the product . . . . One might well say that a car
dealership “offers” cars, but does not “offer” the integrated major inputs that make
purchasing the car valuable, such as the engine or the chassis. . . .
The question, then, is whether the transmission component of cable modem service
is sufficiently integrated with the finished service to make it reasonable to describe the
two as a single, integrated offering. . . . What cable companies providing cable modem
service and telephone companies providing telephone service “offer” is Internet service
and telephone service respectively—the finished services, though they do so using (or
“via”) the discrete components composing the end product, including data transmission.
Such functionally integrated components need not be described as distinct “offerings.”. . .
Because the term “offer” can sometimes refer to a single, finished product and
sometimes to the “individual components in a package being offered,” . . . the statute fails
unambiguously to classify the telecommunications component of cable modem service as
a distinct offering. . . .
***
C
. . . . Respondents argue that the Commission’s construction is unreasonable because
it allows any communications provider to “evade” common-carrier regulation by the
163
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
expedient of bundling information service with telecommunications. Respondents argue
that under the Commission’s construction a telephone company could, for example, offer
an information service like voice mail together with telephone service, thereby avoiding
common-carrier regulation of its telephone service.
We need not decide whether a construction that resulted in these consequences
would be unreasonable because we do not believe that these results follow from the
construction the Commission adopted. As we understand the Declaratory Ruling, the
Commission did not say that any telecommunications service that is priced or bundled
with an information service is automatically unregulated under Title II. The Commission
said that a telecommunications input used to provide an information service that is not
“separable from the data-processing capabilities of the service” and is instead “part and
parcel of [the information service] and is integral to [the information service’s] other
capabilities” is not a telecommunications offering.
This construction does not leave all information-service offerings exempt from
mandatory Title II regulation. “It is plain,” for example, that a local telephone company
“cannot escape Title II regulation of its residential local exchange service simply by
packaging that service with voice mail.” Universal Service Report 11530, ¶ 60. That is
because a telephone company that packages voice mail with telephone service offers a
transparent transmission path—telephone service—that transmits information
independent of the information-storage capabilities provided by voice mail. For instance,
when a person makes a telephone call, his ability to convey and receive information using
the call is only trivially affected by the additional voice-mail capability. . . . By contrast, the
high-speed transmission used to provide cable modem service is a functionally integrated
component of that service because it transmits data only in connection with the further
processing of information and is necessary to provide Internet service. . . .
***
The Commission is in a far better position to address these questions than we are.
Nothing in the Communications Act or the Administrative Procedure Act makes unlawful
the Commission’s use of its expert policy judgment to resolve these difficult questions.
The judgment of the Court of Appeals is reversed, and the cases are remanded for further
proceedings consistent with this opinion.
[Concurring opinions by JUSTICES STEVENS and BREYER are omitted.—Ed.]
JUSTICE SCALIA, with whom JUSTICE SOUTER and JUSTICE GINSBURG join, dissenting.
164
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
. . . . I agree . . . that it would be odd to say that a car dealer is in the business of
selling steel or carpets because the cars he sells include both steel frames and carpeting.
Nor does the water company sell hydrogen, nor the pet store water (though dogs and cats
are largely water at the molecular level). But what is sometimes true is not, as the Court
seems to assume, always true. . . .
If, for example, I call up a pizzeria and ask whether they offer delivery, both common
sense and common “usage,” would prevent them from answering: “No, we do not offer
delivery—but if you order a pizza from us, we’ll bake it for you and then bring it to your
house.” The logical response to this would be something on the order of, “so, you do offer
delivery.” But our pizza-man may continue to deny the obvious and explain, paraphrasing
the FCC and the Court: “No, even though we bring the pizza to your house, we are not
actually ‘offering’ you delivery, because the delivery that we provide to our end users is
‘part and parcel’ of our pizzeria-pizza-at-home service and is ‘integral to its other
capabilities.’” Any reasonable customer would conclude at that point that his interlocutor
was either crazy or following some too-clever-by-half legal advice. . . .
[C]ustomers shopping for dial-up or DSL service will not be able to use the Internet
unless they get both someone to provide them with a physical connection and someone
to provide them with applications and functions such as e-mail and Web access. It is
therefore inevitable that customers will regard the competing cable-modem service as
giving them both computing functionality and the physical pipe by which that functionality
comes to their computer—both the pizza and the delivery service that nondelivery
pizzerias require to be purchased from the cab company. . . .
When cable-company-assembled information enters the cable for delivery to the
subscriber, the information service is already complete. The information has been (as the
statute requires) generated, acquired, stored, transformed, processed, retrieved, utilized,
or made available. All that remains is for the information in its final, unaltered form, to be
delivered (via telecommunications) to the subscriber. . . .
After all is said and done, after all the regulatory cant has been translated, and the
smoke of agency expertise blown away, it remains perfectly clear that someone who sells
cable-modem service is “offering” telecommunications. . . .
NOTES AND QUESTIONS
1. Summary. The Court’s decision in Brand X seems to flow inevitably from the logic
of Chevron. Even if a prior court has interpreted the statute in a certain way, the agency
165
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
should be free to interpret the statute differently, so long as that interpretation is
reasonable. But Chevron deference is no more. How would you interpret the statute
deploying a de novo standard of review? Is whether Internet Service Providers offer a
telecommunications or information service a legal question, or a factual question? Or a
mixed question of law and fact? Does it matter? The Ninth Circuit in the Portland case had
held that the “best” reading of the statute was that ISPs are in fact telecommunications
services. Do you agree?
2. The saga continues. In 2015, the FCC again did an about-face: it classified
broadband Internet as a “telecommunications service” under the Communications Act of
1934 and subjected providers to “net neutrality” regulations. These regulations were
highly controversial. Yet, under the Court’s 2005 Brand X opinion, wasn’t the FCC clearly
free to adopt this change and impose common-carrier regulations? Note that the FCC, in
2018, repealed the 2015 regulations and reclassified broadband Internet once again as an
“information service.”
What do you make of these constant changes in policy? Wouldn’t it be better if the
Supreme Court simply adopted what it thought was the “best” interpretation of the
statute? Does the statute truly leave discretion for the agency to decide whether to
subject Internet providers to regulation? If so, might that be a nondelegation problem?
Or, if it’s not a nondelegation problem, might it nevertheless be a “major question”? In
2016, a panel of the D.C. Circuit upheld the 2015 net neutrality regulations. An en banc
court denied a petition for rehearing, with several judges writing their own opinions.
Then-Judge Kavanaugh dissented from the denial of rehearing and argued the net
neutrality order violated the major questions doctrine. The two judges who had voted on
the panel to uphold the regulations responded to Judge Kavanaugh’s argument. These are
presented below, along with some excerpts from the original panel opinion.
If such regulations were to come up to the Supreme Court today post-Loper Bright
and post-West Virginia, how do you think the Justices would resolve it? What do you
make of Justice Scalia—who authored many of the “elephants-in-mousehole” cases—
dissenting and arguing that the best reading of the statute is that the offering of Internet
services through cable is offering a telecommunications services, therefore requiring
common-carrier regulations?
POLITICAL INFLUENCE
How much should administrative policies change with new presidential administrations? Does the Net Neutrality
saga inform your views on the question?
166
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
3. Statutory stare decisis. How exactly would the Court’s dictum about “statutory
stare decisis” apply to Brand X? If the agency does not impose net neutrality, would that
be upheld on the force of the Brand X decision, but the Court would review the statute
under a de novo standard if the agency chose to impose net neutrality? And what do we
do with the Ninth Circuit’s Portland decision? Why would the Supreme Court’s deference
to the agency receive the weight of stare decisis, but not the Ninth Circuit decision? All of
this is very unclear, and we simply won’t know what the Court will do until it does it.
United States Telecom Ass’n v.
Federal Communication Comm’n.
825 F. 3d. 674 (2016)
TATEL and SRINIVASAN, Circuit Judges:
....
I
. . . . The Commission then promulgated the order at issue in this case—the 2015
Open Internet Order—in which it reclassified broadband service as a telecommunications
service, subject to common carrier regulation under Title II of the Communications Act.
The Commission also exercised its statutory authority to forbear from applying many of
Title II's provisions to broadband service and promulgated five rules to promote internet
openness. . . .
Called “one of the most significant technological advancements of the 20th century,”
the internet has four major participants: end users, broadband providers, backbone
networks, and edge providers. Most end users connect to the internet through a
broadband provider, which delivers high-speed internet access using technologies such as
cable modem service, digital subscriber line (DSL) service, and fiber optics. Broadband
providers interconnect with backbone networks—“long-haul fiber-optic links and highspeed routers capable of transmitting vast amounts of data.” Edge providers, like Netflix,
Google, and Amazon, “provide content, services, and applications over the Internet.” To
bring this all together, when an end user wishes to check last night’s baseball scores on
ESPN.com, his computer sends a signal to his broadband provider, which in turn transmits
it across the backbone to ESPN’s broadband provider, which transmits the signal to ESPN’s
computer. Having received the signal, ESPN’s computer breaks the scores into packets of
information which travel back across ESPN’s broadband provider network to the backbone
167
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
and then across the end user’s broadband provider network to the end user, who will
then know that the Nats won 5 to 3. In recent years, some edge providers, such as Netflix
and Google, have begun connecting directly to broadband providers’ networks, thus
avoiding the need to interconnect with the backbone, and some broadband providers,
such as Comcast and AT&T, have begun developing their own backbone networks.
Proponents of internet openness “worry about the relationship between broadband
providers and edge providers.” “They fear that broadband providers might prevent their
end-user subscribers from accessing certain edge providers altogether, or might degrade
the quality of their end-user subscribers’ access to certain edge providers, either as a
means of favoring their own competing content or services or to enable them to collect
fees from certain edge providers.” Thus, for example, “a broadband provider like Comcast
might limit its end-user subscribers’ ability to access the New York Times website if it
wanted to spike traffic to its own news website, or it might degrade the quality of the
connection to a search website like Bing if a competitor like Google paid for prioritized
access.” . . .
The appropriate regulatory treatment therefore turns on what services a provider
offers to the public: if it offers telecommunications, that service is subject to Title II
regulation. . . .
[T]he Court [in Brand X] explained that the key statutory term “offering” in the
definition of “telecommunications service” is ambiguous. What a company offers, the
Court reasoned, can refer to either the “single, finished product” or the product’s
individual components. According to the Court, resolving that question in the context of
broadband service requires the Commission to determine whether the information
service and the telecommunications components “are functionally integrated ... or
functionally separate.” That question “turns not on the language of [the Communications
Act], but on the factual particulars of how Internet technology works and how it is
provided . . .” . . . .
The Order consists of three components. First, the Commission reclassified both fixed
and mobile “broadband Internet access service” as telecommunications services. . . .
[T]he Order’s second component, the Commission carried out its statutory mandate
to forbear “from applying any regulation or any provision” of the Communications Act if it
determines that the provision is unnecessary to ensure just and reasonable service or
protect consumers and determines that forbearance is “consistent with the public
interest.” 47 U.S.C. § 160(a). Specifically, the Commission forbore from applying certain
168
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
Title II provisions to broadband service, including section 251’s mandatory unbundling
requirements.
In the third portion of the Order, the Commission promulgated five open internet
rules, which it applied to both fixed and mobile broadband service. The first three of the
Commission’s rules, which it called “bright-line rules,” ban blocking, throttling, and paid
prioritization. The anti-blocking and anti-throttling rules prohibit broadband providers
from blocking “lawful content, applications, services, or non-harmful devices” or
throttling—degrading or impairing—access to the same. The anti-paid-prioritization rule
bars broadband providers from “favor[ing] some traffic over other traffic ... either (a) in
exchange for consideration (monetary or otherwise) from a third party, or (b) to benefit
an affiliated entity.” The fourth rule, known as the “General Conduct Rule,” prohibits
broadband providers from “unreasonably interfer[ing] with or unreasonably
disadvantag[ing] (i) end users’ ability to select, access, and use broadband Internet access
service or the lawful Internet content, applications, services, or devices of their choice, or
(ii) edge providers’ ability to make lawful content, applications, services, or devices
available to end users.” The Commission set forth a nonexhaustive list of factors . . . .
Finally, the Commission adopted an enhanced transparency rule . . . .
II
In the Open Internet Order, the Commission determined that broadband service
satisfies the statutory definition of a telecommunications service: “the offering of
telecommunications for a fee directly to the public.” 47 U.S.C. § 153(53). In accordance
with Brand X, the Commission arrived at this conclusion by examining consumer
perception of what broadband providers offer. . . .
In support of its conclusion, the Commission pointed to record evidence
demonstrating that consumers use broadband principally to access third-party content,
not email and other add-on applications. “As more American households have gained
access to broadband Internet access service,” the Commission explained, “the market for
Internet-based services provided by parties other than broadband Internet access
providers has flourished.” Indeed, from 2003 to 2015, the number of websites increased
from “approximately 36 million” to “an estimated 900 million.” By one estimate, two edge
providers, Netflix and YouTube, “account for 50 percent of peak Internet download traffic
in North America.”
That consumers focus on transmission to the exclusion of add-on applications is
hardly controversial. Even the most limited examination of contemporary broadband
usage reveals that consumers rely on the service primarily to access third-party content.
169
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
The “typical consumer” purchases broadband to use “third-party apps such as Facebook,
Netflix, YouTube, Twitter, or MLB.tv, or . . . to access any of thousands of websites.” As
one amicus succinctly explains, consumers today “pay telecommunications providers for
access to the Internet, and access is exactly what they get. For content, they turn to [the]
creative efforts ... of others.” . . .
In support of its second conclusion—that from the user’s point of view, the
standalone offering of broadband service provides telecommunications—the Commission
explained that “[u]sers rely on broadband Internet access service to transmit ‘information
of the user’s choosing,’ ‘between or among points specified by the user,’ ” without
changing the form or content of that information. The Commission grounded that
determination in record evidence that “broadband Internet access service is marketed
today primarily as a conduit for the transmission of data across the Internet.” Specifically,
broadband providers focus their advertising on the speed of transmission. . . .
In concluding that broadband qualifies as a telecommunications service, the
Commission explained that although broadband often relies on certain information
services to transmit content to end users, these services “do not turn broadband Internet
access service into a functionally integrated information service” because “they fall within
the telecommunications system management exception.” The first, DNS, routes end users
who input the name of a website to its numerical IP address, allowing users to reach the
website without having to remember its multidigit address. The second, caching, refers to
the process of storing copies of web content at network locations closer to users so that
they can access it more quickly. The Commission found that DNS and caching fit within the
statute’s telecommunications management exception because both services are “simply
used to facilitate the transmission of information so that users can access other services.”
...
Seeking to escape Brand X, US Telecom argues that the Court held only that the
Commission could classify as a telecommunications service the “last mile” of transmission,
which US Telecom defines as the span between the end user's computer and the
broadband provider’s computer. . . . We have no need to resolve this dispute because,
even if the Brand X decision was only about the last mile, the Court focused on the nature
of the functions broadband providers offered to end users, not the length of the
transmission pathway, in holding that the “offering” was ambiguous. . . .
US Telecom next claims that 47 U.S.C. § 230, enacted as part of the Communications
Decency Act of 1996, a portion of the Telecommunications Act, “confirms that Congress
understood Internet access to be an information service.” Section 230(b) states that “[i]t is
the policy of the United States . . . to promote the continued development of the Internet
170
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
and other interactive computer services and other interactive media.” 47 U.S.C. §
230(b)(1). In turn, section 230(f) defines an “interactive computer service” “[a]s used in
this section” as “any information service, system, or access software provider that
provides or enables computer access by multiple users to a computer server, including
specifically a service or system that provides access to the Internet.” Id. § 230(f)(2).
According to US Telecom, this definition of “interactive computer service” makes clear
that an information service “includes an Internet access service.” As the Commission
pointed out in the Order, however, it is “unlikely that Congress would attempt to settle
the regulatory status of broadband Internet access services in such an oblique and indirect
manner, especially given the opportunity to do so when it adopted the
Telecommunications Act of 1996.” [S]ee Whitman v. American Trucking Ass’ns, 531 U.S.
457, 468 (2001) (“Congress . . . 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.”). . . .
Amici Members of Congress in Support of Petitioners advance an additional
argument that post-Telecommunications Act legislative history “demonstrates that
Congress never delegated to the Commission” authority to regulate broadband service as
a telecommunications service. In support, they point out that Congress has repeatedly
tried and failed to enact open internet legislation, confirming, in their view, that the
Commission lacks authority to issue open internet rules. But as the Supreme Court has
made clear, courts do not regard Congress’s “attention” to a matter subsequently
resolved by an agency pursuant to statutory authority as “legislative history
demonstrating a congressional construction of the meaning of the statute.” . . .
US Telecom argues that the Commission’s classification is unreasonable because
many broadband providers offer information services, such as email, alongside internet
access. According to US Telecom, because broadband providers still offer such services,
consumers must perceive that those providers offer an information service. For its part,
the Commission agreed that broadband providers offer email and other services, but
simply concluded that “broadband Internet access service is today sufficiently
independent of these information services that it is a separate offering.” . . .
***
V
Having upheld the Commission's reclassification of broadband services, both fixed
and mobile, we consider next Full Service Network’s challenges to the Commission’s
decision to forbear from applying portions of the Communications Act to those
171
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
services. Section 10 of the Communications Act provides that the Commission “shall
forbear from applying any regulation or any provision” of the Communications Act to a
telecommunications service or carrier if three criteria are satisfied: (1) “enforcement of
such regulation or provision is not necessary to ensure that” the carrier's practices “are
just and reasonable and are not unjustly or unreasonably discriminatory,” 47 U.S.C. §
160(a)(1); (2) “enforcement of such regulation or provision is not necessary for the
protection of consumers,” id. § 160(a)(2); and (3) “forbearance from applying such
provision or regulation is consistent with the public interest,” id. § 160(a)(3). Under the
third criterion, “the Commission shall consider whether forbearance ... will promote
competitive market conditions, including the extent to which such forbearance will
enhance competition among providers of telecommunications services.” Id. § 160(b).
Thus, section 10 imposes a mandatory obligation upon the Commission to forbear when it
finds these conditions are met. . . .
In the Order, the Commission decided to forbear from numerous provisions of the
Communications Act. . . .
Full Service Network contends that the Commission acted arbitrarily and capriciously
in forbearing from the mandatory network connection and facilities unbundling
requirements contained in sections 251 and 252. As relevant here, section 251 requires
telecommunications carriers “to interconnect directly or indirectly” with other carriers
and prohibits them from “impos[ing] unreasonable or discriminatory conditions or
limitations on[ ] the resale of . . . telecommunications services.” 47 U.S.C. § 251(a)(1),
(b)(1). . . .
The Commission reasoned that its decision to forbear from section 251’s unbundling
requirement, in combination with regulation under other provisions of Title II, would
avoid similar problems and encourage further deployment because the scheme
“establishes the regulatory predictability needed by all sectors of the Internet industry to
facilitate prudent business planning, without imposing undue burdens that might interfere
with entrepreneurial opportunities.”
The Commission also identified “numerous concerns about the burdens—or, at a
minimum, regulatory uncertainty—that would be fostered by a sudden, substantial
expansion of the actual or potential regulatory requirements and obligations relative to
the status quo from the near-term past,” in which many broadband providers were not
subject to any aspect of Title II. In reaching this conclusion, the Commission drew from its
experience with the mobile voice industry, which “thrived under a market-based Title II
regime” that included significant forbearance, “demonstrating that robust investment is
not inconsistent with a light-touch Title II regime.”
172
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
The partial dissent agrees with much of this, but nonetheless believes that the
Commission acted arbitrarily and capriciously by “attempt[ing] to have it both ways” when
it found a lack of competition in its reclassification decision, but simultaneously found
adequate competition to justify forbearance. . . . Notably, however, . . . Full Service
Network has never claimed that the Commission misapplied any of the section 10(a)
factors, failed to analyze competitive effect as required by section 10(b), or acted contrary
to its forbearance precedent. . . .
[An opinion be Senior Circuit Judge Williams concurring and dissenting in part is
omitted.—Ed.]
United States Telecom Ass’n v.
Federal Communication Comm’n.
855 F. 3d. 381 (2017)
On Petition for Rehearing En Banc
SRINIVASAN, Circuit Judge, joined by TATEL, Circuit Judge, concurring in the denial of
rehearing en banc:
. . . . While we concur in the court’s denial of en banc review, we write to respond to
a particular contention pressed by one of our dissenting colleagues: that . . . Supreme
Court decisions require clear congressional authorization for rules like the net neutrality
rule, and the requisite clear statutory authority, he argues, is absent here. . . .
We have no need in this case to resolve the existence or precise contours of the
major rules (or major questions) doctrine described by our colleagues. Assuming the
existence of the doctrine as they have expounded it, and assuming further that the rule in
this case qualifies as a major one so as to bring the doctrine into play, the question posed
by the doctrine is whether the FCC has clear congressional authorization to issue the rule.
The answer is yes. Indeed, we know Congress vested the agency with authority to impose
obligations like the ones instituted by the Order because the Supreme Court has
specifically told us so. . . .
The upshot of Brand X with regard to the FCC’s congressionally delegated authority
over broadband ISPs is unmistakable and straightforward. All nine Justices recognized the
agency’s statutory authority to institute “common-carrier regulation of all ISPs,” with
some Justices even concluding that the Act left the agency with no other choice. . . .
173
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
KAVANAUGH, Circuit Judge, dissenting from the denial of rehearing en banc:
The FCC’s 2015 net neutrality rule is one of the most consequential regulations ever
issued by any executive or independent agency in the history of the United States. The
rule transforms the Internet by imposing common-carrier obligations on Internet service
providers and thereby prohibiting Internet service providers from exercising editorial
control over the content they transmit to consumers. The rule will affect every Internet
service provider, every Internet content provider, and every Internet consumer. The
economic and political significance of the rule is vast.
The net neutrality rule is unlawful and must be vacated . . . .
Congress did not clearly authorize the FCC to issue the net neutrality rule. Congress
has debated net neutrality for many years, but Congress has never enacted net neutrality
legislation or clearly authorized the FCC to impose common-carrier obligations on Internet
service providers. The lack of clear congressional authorization matters. In a series of
important cases over the last 25 years, the Supreme Court has required clear
congressional authorization for major agency rules of this kind. . . .
[I]n a narrow class of cases involving major agency rules of great economic and
political significance, the Supreme Court has articulated a countervailing canon that
constrains the Executive and helps to maintain the Constitution’s separation of powers.
For an agency to issue a major rule, Congress must clearly authorize the agency to do so. If
a statute only ambiguously supplies authority for the major rule, the rule is unlawful. This
major rules doctrine (usually called the major questions doctrine) is grounded in two
overlapping and reinforcing presumptions: (i) a separation of powers-based presumption
against the delegation of major lawmaking authority from Congress to the Executive
Branch, see Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448
U.S. 607, 645-46 (1980) (opinion of Stevens, J.), and (ii) a presumption that Congress
intends to make major policy decisions itself, not leave those decisions to agencies. . . .
In order for the FCC to issue a major rule, Congress must provide clear authorization.
We therefore must address two questions in this case: (1) Is the net neutrality rule a major
rule? (2) If so, has Congress clearly authorized the FCC to issue the net neutrality rule?
The FCC’s net neutrality rule is a major rule for purposes of the Supreme Court’s
major rules doctrine. Indeed, I believe that proposition is indisputable.
The Supreme Court has described major rules as those of “vast ‘economic and
political significance.’” The Court has not articulated a bright-line test that distinguishes
major rules from ordinary rules. As a general matter, however, the Court’s cases indicate
174
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
that a number of factors are relevant, including: the amount of money involved for
regulated and affected parties, the overall impact on the economy, the number of people
affected, and the degree of congressional and public attention to the issue. See UARG, 134
S.Ct. at 2443-44 (regulation would impose massive compliance costs on millions of
previously unregulated emitters); Gonzales v. Oregon, 546 U.S. at 267 (physician-assisted
suicide is an important issue subject to “earnest and profound debate across the
country”); Brown & Williamson, 529 U.S. at 126-27, 133, 143-61 (FDA’s asserted authority
would give it expansive power over tobacco industry, which was previously unregulated
under the relevant statute); MCI, 512 U.S. at 230, 231 (rate-filing requirements are
“utterly central” and of “enormous importance” to the statutory scheme). The Court’s
concern about an agency’s issuance of a seemingly major rule is heightened, moreover,
when an agency relies on a long-extant statute to support the agency’s bold new assertion
of regulatory authority. See UARG, 134 S.Ct. at 2444.
To be sure, determining whether a rule constitutes a major rule sometimes has a bit
of a “know it when you see it” quality. So there inevitably will be close cases and debates
at the margins about whether a rule qualifies as major. But under any conceivable test for
what makes a rule major, the net neutrality rule qualifies as a major rule.
The net neutrality rule is a major rule because it imposes common-carrier regulation
on Internet service providers. (A common carrier generally must carry all traffic on an
equal basis without unreasonable discrimination as to price and carriage.) In so doing, the
net neutrality rule fundamentally transforms the Internet by prohibiting Internet service
providers from choosing the content they want to transmit to consumers and from fully
responding to their customers’ preferences. The rule therefore wrests control of the
Internet from the people and private Internet service providers and gives control to the
Government. The rule will affect every Internet service provider, every Internet content
provider, and every Internet consumer. The financial impact of the rule—in terms of the
portion of the economy affected, as well as the impact on investment in infrastructure,
content, and business—is staggering. Not surprisingly, consumer interest groups and
industry groups alike have mobilized extraordinary resources to influence the outcome of
the policy discussions.
Moreover, Congress and the public have paid close attention to the issue. Congress
has been studying and debating net neutrality regulation for years. It has considered (but
never passed) a variety of bills relating to net neutrality and the imposition of commoncarrier regulations on Internet service providers. [Citations to numerous bills omitted.—
Ed.] The public has also focused intensely on the net neutrality debate. For example, when
the issue was before the FCC, the agency received some 4 million comments on the
175
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
proposed rule, apparently the largest number (by far) of comments that the FCC has ever
received about a proposed rule. Indeed, even President Obama publicly weighed in on the
net neutrality issue, an unusual presidential action when an independent agency is
considering a proposed rule. The President’s intervention only underscores the enormous
significance of the net neutrality issue.
In addition, as in other cases where the Supreme Court has held that the major rules
doctrine applied, the FCC is relying here on a long-extant statute—namely, the
Communications Act of 1934, as amended in 1996. . . . The net neutrality rule is a major
rule under any plausible conception of the major rules doctrine. . . .
Because the net neutrality rule is a major rule, the next question is whether Congress
clearly authorized the FCC to issue the net neutrality rule and impose common-carrier
regulations on Internet service providers. The answer is no.
Congress enacted the Communications Act in 1934 and amended it in 1996. The
statute sets up different regulatory schemes for “telecommunications services” and
“information services.” To simplify for present purposes, the statute authorizes heavy
common-carrier regulation of telecommunications services but light regulation of
information services. (Recall that a common carrier generally must carry all traffic on an
equal basis without unreasonable discrimination as to price and carriage.) The statute was
originally designed to regulate telephone service providers as common carriers.
By the time of the 1996 amendments to the Act, the Internet had come into being.
The 1996 amendments reflected that development. Among other things, the amendments
articulated a general philosophy of limited regulation of the Internet. “It is the policy of
the United States,” Congress stated, “to preserve the vibrant and competitive free market
that presently exists for the Internet and other interactive computer services, unfettered
by Federal or State regulation.” 47 U.S.C. § 230(b).
In keeping with the express statutory philosophy of light regulation of the Internet,
the FCC until 2015 regulated Internet service provided over cable systems as an
information service, the lighter regulatory model. The 1934 Act (as amended in 1996)
permits such light regulation of the Internet. What that Act does not clearly do is treat
Internet service as a telecommunications service and thereby authorize the FCC to
regulate Internet service providers as common carriers. At most, the Act is ambiguous
about whether Internet service is an information service or a telecommunications service.
Since 1996, Congress has not passed a statute clearly classifying Internet service as a
telecommunications service or otherwise giving the FCC authority to impose commoncarrier regulations on Internet service providers. That inaction has not been the result of
176
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
inattention. On the contrary, as noted above, Congress has been studying and debating
the net neutrality issue for years. And Congress has considered a variety of bills relating to
net neutrality and the imposition of common-carrier regulations on Internet service
providers. But none of those bills has passed.
In 2015, notwithstanding the lack of clear congressional authorization, the FCC
decided to unilaterally plow forward and issue its net neutrality rule. The rule classified
Internet service as a telecommunications service and imposed onerous common-carrier
regulations on Internet service providers. By doing so, the FCC’s 2015 net neutrality rule
upended the agency’s traditional light-touch regulatory approach to the Internet.
The problem for the FCC is that Congress has not clearly authorized the FCC to
classify Internet service as a telecommunications service and impose common-carrier
obligations on Internet service providers. Indeed, not even the FCC claims that Internet
service is clearly a telecommunications service under the statute. On the contrary, the FCC
concedes that “the Communications Act did not clearly resolve the question of how
broadband should be classified.” FCC Opposition Br. 9. Therefore, by the FCC’s own
admission, Congress has not clearly authorized the FCC to subject Internet service
providers to the range of burdensome common-carrier regulations associated with
telecommunications services.
Under the major rules doctrine, that is the end of the game for the net neutrality
rule: Congress must clearly authorize an agency to issue a major rule. And Congress has
not done so here, as even the FCC admits.
To avoid that conclusion, the FCC relies almost exclusively on the Supreme Court’s
2005 decision in National Cable & Telecommunications Association v. Brand X Internet
Services, 545 U.S. 967 (2005). . . . The Supreme Court stated that the statute was
ambiguous about whether Internet service was an information service or a
telecommunications service. The Court applied Chevron deference and upheld the FCC’s
decision to classify Internet service as an information service and to subject Internet
service providers to only light regulation.
Here, the FCC argues that, under Brand X, the agency has authority to classify
Internet service as a telecommunications service because the statute is ambiguous. The
FCC is badly mistaken. Brand X’s finding of statutory ambiguity cannot be the source of
the FCC’s authority to classify Internet service as a telecommunications service. Rather,
under the major rules doctrine, Brand X’s finding of statutory ambiguity is a bar to the
FCC’s authority to classify Internet service as a telecommunications service.
177
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.
Importantly, the Brand X Court did not have to—and did not—consider whether
classifying Internet service as a telecommunications service and imposing common-carrier
regulation on the Internet would be consistent with the major rules doctrine. In other
words, Brand X nowhere addressed the question presented in this case: namely, whether
Congress has clearly authorized common-carrier regulation of Internet service
providers. . . . Brand X’s finding of ambiguity by definition means that Congress has not
clearly authorized the FCC to issue the net neutrality rule. And that means that the net
neutrality rule is unlawful under the major rules doctrine.
***
The FCC adopted the net neutrality rule because the agency believed the rule to be
wise policy and because Congress would not pass it. The net neutrality rule might be wise
policy. But even assuming that the net neutrality rule is wise policy, congressional inaction
does not license the Executive Branch to take matters into its own hands. . . .
178
This document is authorized for use by Manisha Ratakonda, from 07/22/2025 to 12/19/2025 in the course:
LGST 6130: 001-002 Business, Social Responsibility, and the Environment - Light (Fall 2025), University of Pennsylvania
Any unauthorized use or reproduction of this document is strictly prohibited.