In January 2024, the FCC implemented a recently passed law by publishing a new regulation requiring equal and nondiscriminatory access to broadband internet service. Industry representatives challenged this regulation, arguing that it exceeds the FCC’s statutory authority. Among other things, the industry petitioners object that the new rules do not just prohibit intentional discrimination but extend to policies that have a disparate impact on consumers of different races or income levels, and that the rules cover entities other than the broadband service providers themselves, such as their contractors. Sixteen challenges to the rules have been consolidated in the Eighth Circuit.

In July 2024, CAC filed an amicus brief in support of the federal government. Our brief makes two main points.

First, we explain that under Supreme Court precedent the major questions doctrine applies only in “extraordinary” cases, where an agency’s breathtaking assertion of new power reflects a dubious effort to transform the fundamental nature of its authority. Supreme Court decisions have consistently demonstrated that more is needed to implicate the doctrine than economic and political significance alone; other factors 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 extending the major questions doctrine to cases like this would undermine traditional statutory interpretation and constitutional principles. We discuss how the major questions doctrine is in tension with textualism because it emphasizes considerations outside the statutory text. We also explain that the Constitution’s original public meaning does not support the premise underlying the doctrine: the Founders had no qualms about directing the executive branch to handle major policy questions, and history does not suggest that Congress must speak in any particular manner to do so. 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.