Hi Robert - it does look like we may know about the CFPB case tomorrow. I just looked at the calendar on SCOTUS Blog and it has been updated to make it an Order issuance day also - I had thought it was going to be delayed a full week to the 27th due to the Holiday.
What is interesting in the MQD is that the West Virginia case is so new that there is not much of a road map and the outcome is in some ways just a philosophical or political interpretation by SCOTUS at this point in the application of the MQD. Here is the excerpt from the cite that NeoSonTzu referenced regarding the guidelines proposed by Justice Gorsuch - it is just full of judgement calls and decisions on what is a " great political significance." for example:
Justice Gorsuch wrote a concurring opinion, joined by Justice Alito, to “offer some additional observations” on the major questions doctrine.
Gorsuch characterized the major questions doctrine as a clear statement rule developed to ensure judicial adherence to the constitutional principle of separation of powers, similar to the clear statement rules on retroactive liability and waivers of sovereign immunity. Gorsuch then identified the following triggers, based on the Court’s precedents, for determining that “an agency action involves a major question for which clear congressional authorization is required:
First, if the agency is claiming power to resolve a matter of “great ‘political significance’” or if the agency is seeking to end an “earnest and profound debate across the country.” Instructive for these questions are whether Congress has considered and rejected taking similar action to that of the agency’s proposed action through legislation in the past.
Second, if the agency seeks to regulate “a significant portion of the American economy” or “require ‘billions of dollars in spending’ by private persons or entities.”
Third, if the agency seeks to intrude in an area that is the particular province of state law.
Gorsuch wrote that “this list of triggers may not be exclusive” but “each of the signs the Court has found significant in the past is present” in West Virginia v. EPA, making it “a relatively easy case for the doctrine’s application.”
Gorsuch then identified the following factors for determining whether a congressional authorization is sufficiently clear:
First, courts must look to the text of the statutory provisions “with a view to their place in the overall statutory scheme.” Oblique or elliptical language will not supply a clear statement, nor will gap-filler provisions.
Second, courts may examine the age and focus of the statute in relation to the problem being addressed, since “an 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 previous interpretation of the relevant statutory language. Where an agency asserts a new power after long interpreting a statute more narrowly, that warrants skepticism.
Fourth, courts should inquire as to whether there is a mismatch between an agency’s challenged action and its congressionally-assigned mission and expertise.
Gorsuch concluded that “[a]sking these questions again yields a clear answer in” West Virginia v. EPA—that the EPA lacked the requisite clear congressional authorization.
AI
