Toolkit for Approaching Statutory Interpretation
Post-Loper Bright and Major Questions Doctrine (MQD)
Introduction
This toolkit is designed to assist litigants in defending agency actions, focusing on challenges involving the Major Questions Doctrine (MQD) post-Loper Bright. It offers arguments and strategies to effectively advocate for agency actions within the context of recent Supreme Court rulings.
Use this toolkit as a flexible guide to tailor your approach based on specific cases and contexts. Keep in mind that this document is a work in progress, and future updates may add new insights and strategies as case law evolves.
Toolkit Outline
Step 2: Arguing that MQD Is Not Triggered
Step 3: Overcoming MQD Factors
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Step 1: Argue That Congress Broadly Delegated Authority
The first step in defending agency actions is to argue that Congress broadly delegated authority to the agency or executive, and that the agency is acting within the bounds of that discretion. Focus on establishing that the agency’s interpretation aligns with the best reading of the statute.
Frame the statutory delegation in accordance with the intelligible principle doctrine.
Use Loper Bright to argue that Congress delegated sufficient discretion for the action.
Highlight the Skidmore factors when interpreting statutes.
Ensure that the argument is clear that the size of the agency action is not as relevant as whether Congress delegated authority for the action. Litigants defending agency actions may also need to address the Major Questions Doctrine (MQD), but starting with this delegation argument helps to frame the discussion effectively.
Step 2:
Arguing that MQD Is Not Triggered
When MQD is raised in a case, the goal is to show that it does not apply or that the factors for triggering it are not met. Several strategies can help demonstrate this:
Argue that the agency’s action is an iterative step in line with previous actions and is not an unheralded or unprecedented use of authority.
Demonstrate that the action is within the scope of the delegated authority and does not represent a transformative expansion of regulatory authority.
Explain why the agency’s action does not have vast economic or political significance, one of the key factors in applying MQD.
Step 3: Overcoming MQD Factors
In cases where the court finds that MQD is triggered, the focus should shift to overcoming the factors of MQD. This section offers guidance on how to argue that the agency action is within its delegated authority even when MQD is applied.
Argue that the delegation of authority is sufficient to overcome MQD concerns.
Highlight post-West Virginia v. EPA decisions that reject MQD applications based on clear delegations of authority.
Other Considerations and Strategies
This section provides additional strategies that can be used to strengthen your defense of agency actions:
Distinguish previous MQD precedents that may seem adverse to agency action.
Consider the role of administrative severability in addressing portions of agency actions that may be vulnerable to MQD attacks.
Long-term strategies for undermining the validity of MQD, such as arguing that it is incompatible with textualism or violates separation of powers principles.