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. In September 2023, a federal district court blocked the Executive Order from being enforced in three states, relying in part on the “major questions doctrine.” The Department of Labor appealed the decision to the Fifth Circuit Court of Appeals.

In January 2024, CAC filed an amicus brief in support of the DOL. 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. Presidents have regulated federal contractors’ interactions with their workers for decades.

Finally, we show that applying the major questions doctrine too broadly 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, including ones that have no bearing on the ordinary public meaning of the statute. 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 explain why overuse of the major questions doctrine would undermine—not support—the separation of powers and thrust the courts beyond their proper role in interpreting the law.