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ACUS members press for clearer LoperBright and major-questions guidance in preamble recommendations
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Summary
Committee members told staff to add explicit doctrinal background on LoperBright and related case law to the preamble that introduces the recommendations, and debated whether the recommendations should name the major-questions doctrine or leave that discussion to the introduction and footnotes.
Committee members repeatedly urged that the draft recommendations be anchored to a clearer statement of the recent case law that motivated them, particularly LoperBright and major-questions jurisprudence. Consultant Dan Deacon described multiple possible paths courts could take under LoperBright and said the report offers alternative ways agencies could justify actions; members asked staff to make those connections more explicit in the recommendation preamble.
Several members recommended adding case citations or a short taxonomy of legal issues so readers understand why particular drafting advice is on the table. Dan Walters and others suggested mapping the recommendations to doctrinal categories discussed in the LoperBright opinion rather than relying on a simple “specific versus general” delegation distinction.
On naming the doctrine: some members worried invoking the term "major questions doctrine" directly in recommendation text might be premature or politicize the report; others said naming it makes the recommendation’s purpose clearer. A compromise discussed was to add targeted citations and background to the preamble and to use more general recommendation text that cross-references evolving case law. Members also recommended staff add examples of factors courts find relevant (novelty, costs, scope) while preserving language that the law is evolving.
Committee direction: staff to add clearer background and consider surgical edits—e.g., moving some LoperBright-based language into the introductory preamble, flagging that the recommendations primarily address judicial-review considerations, and including a non-exhaustive list of factors agencies should consider when the major-questions issue is in play. The group will review redlines at their next session.
