In light of ongoing and dire nationwide housing challenges, tenant advocacy groups have been pushing for greater action by the federal government. Tenants and organizers are calling on federal administrative agencies to impose rent regulations in federally backed properties, curb discriminatory screening practices, limit the grounds for eviction, and affirmatively further fair housing, among other such policies that would significantly regulate the housing market. The newly formed Tenant Union Federation is leading the charge, having recently developed a national tenant policy agenda on the heels of its successful advocacy for the 2023 Whitehouse Blueprint for a Renters Bill of Rights.
These efforts raise administrative law questions related to the legal authority of federal agencies to promulgate such regulations. Further complicating matters, the most recent term of the U.S. Supreme Court witnessed dramatic upheaval in the area of administrative law. As federal agencies like the U.S. Department of Housing & Urban Development (HUD), the Federal Housing Finance Agency (FHFA), and the Federal Trade Commission (FTC) consider how best to proceed with proposed housing regulations, questions are emerging about the limits of their authority to pass progressive rules in this new regulatory environment. We argue that these limits, while real, are not so restrictive as to justify inaction and that progressive housing regulation need not be curtailed for fear of legal scrutiny.
Major Questions after the Demise of Chevron
In a decision last term that sent administrative law scholars scrambling to re-write casebooks over the summer, the Supreme Court discarded yet another long-standing precedent when it overruled the Chevron doctrine. This doctrine, which emerged from a 1984 decision upholding the Reagan-era Environmental Protection Agency’s interpretation of the Clean Air Act, required courts to defer to an agency’s reasonable interpretation of ambiguous provisions in statutes that the agency is charged with administering. Thanks to the recent 6-3 opinion in Loper Bright v. Raimondo, the Court has clawed back that deference. Now, courts are instructed to use their independent judgment to determine the best reading of such statutes, relying on the traditional tools of statutory construction.
The decision has left in limbo the ongoing relevance of a more recent Supreme Court doctrine—the Major Questions doctrine (MQD). First appearing by name in the Court’s 2022 West Virginia v. EPA decision, but with earlier roots, the doctrine initially was understood as an exception to Chevron deference. Under this exception, courts would not defer to agency interpretations on matters of “vast economic and political significance.” With the recent overruling of Chevron deference, the question arises: is the MQD now moot? What relevance, after all, is there for an exception to a doctrine that no longer applies?
On the other hand, the Court has recently suggested that the MQD is more than just an exception to Chevron deference—that on major questions, an agency cannot act unless it can point to clear congressional authorization. Accordingly, prominent administrative law scholars have come to see the doctrine as a “threshold check on administrative action and congressional delegation.” No clear authorization means the agency loses outright. If this strong threshold view is correct, the relevance of the MQD persists beyond Chevron. Agencies would be counseled to avoid acting on issues of “vast economic and political significance” without clear congressional authorization or risk being struck down by the courts as a threshold matter.
We argue against the strong threshold view and for the view that the MQD should not automatically dictate results post Loper Bright. We ground this argument in the reasoning of the Loper Bright decision itself. Recall that, post-Loper Bright, courts are charged in all cases with determining the “best” interpretation of a statute using the traditional tools of statutory construction. At oral argument, Justice Kavanaugh and Justice Gorsuch spent significant time considering what the “best” interpretation actually means. Writing for the majority, Chief Justice Roberts explained:
“Courts . . . understand that such statutes, no matter how impenetrable, do—in fact, must—have a single, best meaning. . . . So, instead of declaring a particular party’s reading “permissible” in such a case, courts use every tool at their disposal to determine the best reading of the statute and resolve the ambiguity. . . . It therefore makes no sense to speak of a “permissible” interpretation that is not the one the court, after applying all relevant interpretive tools, concludes is best. In the business of statutory interpretation, if it is not best, it is not permissible.”
In other words, even in a case in which an agency interpretation lacks clear congressional authorization and implicates a major question, a court should not automatically rule against an agency. Rather, it should do what it does in all cases—apply the tools of statutory construction to come up with the best interpretation. And it is at least possible that the best interpretation will be the one deployed by the agency.
In fact, far from just being possible, scholars have argued that often the agency’s interpretation will be the best one. Why? Because “[w]hen judges identify the ‘best reading’ of the statute, that best reading might itself just be that an explicit or implicit congressional delegation of such authority to the agency has occurred.” The Court in Loper Bright itself noted that “[i]n a case involving an agency, of course, the statute’s meaning may well be that the agency is authorized to exercise a degree of discretion. Congress has often enacted such statutes.” In September, the Fifth Circuit decided a case precisely pursuant to this logic.
Further, the Chevron doctrine has been around for four decades, from 1984 to 2024. Without evidence to the contrary, statutes—and amendments to statutes—enacted during this era should be presumed to have been passed by a Congress that assumed agencies would be afforded Chevron deference. The terms of such statutes should be interpreted against this doctrinal backdrop.
In its upcoming term, the Supreme Court may clarify the ongoing role, if any, of the MQD in a post-Chevron world. The Court recently granted certiorari in Nuclear Regulatory Commission v. Texas, a case in which the Fifth Circuit applied the MQD to hold that the Commission did not have the authority to regulate the disposal of nuclear waste.
The current justices, even among the six-member conservative bloc, do not appear entirely united in their understanding of the MQD. On the one hand, Justice Gorsuch has argued in a concurrence for the MQD to be understood as a hard and fast “clear-statement rule” (what some have deemed a “substantive canon”). As Justice Kagan has quipped, such an understanding of the MQD provides a “get-out-of-text free card,” operating in tension with the strict textualist approach to statutory interpretation often celebrated by conservative members of the Court. Justice Barrett, by contrast, suggests the MQD is merely an “interpretive tool reflecting ‘common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude . . . .’” At present, given these competing understandings, and in the future, if a view along the lines of Justice Barrett’s ultimately prevails, the MQD should not be viewed as dispositive and rather should be deployed alongside other tools of statutory interpretation in determining the scope of agency authority.
Taking the Long View on Housing Regulation
More broadly, setting aside technical legal debates about the ongoing relevance of the MQD, other good reasons remain for agencies to continue to regulate areas of significant economic and political import—air quality, food safety, and yes, housing—notwithstanding the lack of crystal clear and exceedingly specific congressional authorization. Even if under a strong threshold view such regulations are more likely to be struck down by this Supreme Court, trimming regulatory sails to avoid losing in court is not necessarily more beneficial for long-term progress than facing short-term negative judicial scrutiny. Recent legal scholarship has explored how campaigns can “win by losing” in court if the post-decision backlash is used to galvanize broader political support.
As one of us has argued recently, this “is not an argument for lawlessness or a call for civil disobedience by agency officials.” Scholars of popular constitutionalism and administrative constitutionalism have shown that although courts play the central role in interpreting the law, this interpretation occurs within a dynamic conversation with various actors and institutions, including administrative agencies. When agencies make good-faith interpretations of statutes, informed by public input through mechanisms such as notice-and-comment rulemaking, they engage in an ongoing dialectical conversation with the Supreme Court and other constitutional actors. This process strengthens democratic norms and reinforces the checks-and-balances framework of our political system.
Applying the logic of this brief essay to the area of housing, agencies such as HUD should not shy away from issuing robust interpretations, for example, of the federal Fair Housing Act (FHA) for fear of becoming ensnared in MQD analysis. Whether a housing regulation is deemed “major” or “minor,” courts will no longer defer to agency interpretations. In either case, courts must, per the logic of Loper Bright, determine the best interpretation of the statute, which may indeed be the agency’s interpretation. Given that the FHA was amended in 1988 (post-Chevron), there is a strong argument that Congress intended that the terms of the law should be interpreted with the assumption that HUD be afforded deference moving forward.
For example, HUD could interpret the FHA’s “affirmatively furthering fair housing” provision to promulgate a rule conditioning federal funding on the requirement that states and localities pass laws preventing landlords from discriminating against tenants who seek to pay rent with government assistance. The FHFA could pass rules limiting rent-gouging, as Senator Elizabeth Warren has urged, and requiring stronger tenant protections in properties receiving assistance from the government-sponsored enterprises—the agency has already started to take modest steps in this direction. The FTC could promulgate background check rules to prevent discrimination in tenant screening, as suggested in the Whitehouse Blueprint for a Renters Bill of Rights.
Furthermore, even if such agencies were to lose in court, if that loss could be channeled toward building momentum in the burgeoning national tenant rights movement, led by groups like the Tenant Union Federation, then all is not lost. Let the Supreme Court strike down reasonable housing regulations and face the political repercussions from a nation that increasingly can’t access or afford a decent place to live. Such an approach may ultimately better serve long-term fair housing goals than prematurely curtailing a regulatory agenda for fear of court scrutiny. Far from engaging in lawlessness, HUD and its fellow agencies would be helping to fortify democratic norms and fulfilling a vital checks-and-balances role they play in our political system.
