Rule of Law

Nebraska v. Walsh

In Nebraska v. Walsh, the United States Court of Appeals for the Ninth Circuit is considering whether President Biden’s executive order establishing a minimum wage for employees of federal contractors is authorized by federal law.

Case Summary

In April 2021, President Biden issued Executive Order 14026, directing agencies to include in certain federal contracts a clause requiring a $15 minimum hourly wage for contractors’ employees. Shortly afterward, multiple states sued, claiming that the wage mandate exceeds the President’s statutory authority. A federal district court dismissed the case, concluding that the order falls within the President’s authority. The states appealed the decision to the Ninth Circuit Court of Appeals, arguing among other things that the minimum wage mandate violates the “major questions doctrine,” which requires agencies to show clear congressional authorization for certain actions.

In August 2023, CAC filed an amicus brief in support of the federal government. Our brief makes three 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 show that the minimum wage requirement for federal contractors is far from “extraordinary.” None of the criteria that weigh in favor of applying the major questions doctrine are met in this case. The minimum wage provision does not approach the magnitude of economic and political significance required to trigger the doctrine, nor does it transform the authority Congress meant to confer in the relevant statute.

Finally, 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 pragmatic 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.

Because the minimum wage requirement for employees of federal contractors does not meet the high standard the Supreme Court has prescribed for applying the major questions doctrine, and because applying the doctrine more widely would exacerbate its tensions with textualism, the Constitution’s original meaning, and the separation of powers, the Ninth Circuit should decline to apply the doctrine and should uphold the President’s executive order.

Case Timeline

  • August 28, 2023

    CAC files amicus brief in the Ninth Circuit Court of Appeals

    Nebraska v Walsh Amicus Brief
  • February 6, 2024

    Ninth Circuit hears oral arguments