In November 2021, the U.S. Department of Health and Human Services (HHS) issued an interim final rule that, in relevant part, set COVID-19 vaccination requirements for Head Start program staff, volunteers, and contractors. Shortly afterward, several states as well as a teacher who serves Head Start students filed a complaint challenging the rule.

In September 2022, the U.S. District Court for the Western District of Louisiana ruled in favor of the plaintiffs and issued a permanent injunction against implementing the rule. It determined that the major questions doctrine applied because the rule involves vast economic and political significance and concluded that Congress did not clearly authorize HHS to impose the requirements.

The federal government appealed the decision to the Fifth Circuit Court of Appeals.

On March 10, 2023, CAC filed an amicus curiae brief in support of HHS Secretary Xavier Becerra and other agency defendants. Our brief makes three main points.

First, we explain that West Virginia v. EPA and its predecessor cases show that the major questions doctrine applies only in “extraordinary” cases where an agency’s breathtaking assertion of power reflects a dubious effort to transform the fundamental nature of its authority.  The Supreme Court has consistently demonstrated that more than economic and political significance alone is needed to invoke the doctrine; additional evidence must also indicate that the agency is subverting congressional intent by seeking “an unheralded power representing a transformative expansion in its regulatory authority.”

Second, we argue that the Head Start rule is far from “extraordinary.” None of the factors that determine whether a case involves a major question are met in this case. Instead, the challenged requirements are akin to previously-issued Head Start performance standards that fit squarely within the HHS’s history and purpose of “regulating the health of the Head Start staff in order to protect the children in the program.”

Finally, we argue that extending the major questions doctrine to cases like this would undermine traditional statutory interpretation and constitutional principles. We describe how a broad major questions doctrine is in tension with textualism and that when the district court concluded that a heightened standard applied to this case even though the authorizing statute “is arguably broad enough to encompass the Head Start Mandate,” it overemphasized economic and political considerations unrelated to the text. We also explain that the Constitution’s original public meaning does not support a broad reading of the major questions doctrine; the Founding-era Congress had no qualms about directing the executive branch to handle major policy questions, and there is no basis for requiring Congress to speak in a certain manner in order to do so today. And finally, we discuss how overuse of the major questions doctrine would undermine the separation of powers and thrust the courts beyond their proper role in interpreting the law.

In sum, the district court was wrong to apply the major questions doctrine to the Head Start vaccination requirements. The challenged standards do not rise to the level of an “extraordinary case,” and arguments to the contrary are in tension with textualism, the original public meaning of the Constitution, and the separation of powers.

In June 2023, HHS issued a final rule that eliminated the Head Start vaccination requirement. In August 2023, the Fifth Circuit concluded that the case was moot and vacated the district court’s injunction.