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By:  William H. Fields, Esquire

For decades, courts have given federal agencies broad discretion in promulgating regulations to enforce statutes pursuant to the Chevron doctrine. But in recent years, the Supreme Court, under its “major questions doctrine,” has gone from trimming agencies’ discretion to carving off huge chunks of agency authority. Based on this trend, special education services as set forth in regulations issued pursuant to the Rehabilitation Act of 1973, 29 U.S.C. 794 (“Section 504”) would be unlikely to survive the Court’s chopping block.

  1. The History Of The Chevron Doctrine

In Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 840 (1984), a rare 6-0 decision, the Court granted federal agencies authority to “fill in” undefined or ambiguous statutory terms set by Congress.  In Chevron the Court reviewed Clean Air Act (CAA) regulations that were promulgated by the Environmental Protection Agency (EPA) and challenged by the Natural Resources Defense Counsel (NRDC) as not authorized by the CAA.

Under the statutory terms of the CAA, states were required to establish a permit program for stationary sources of air pollution from manufacturing plants, but the statute did not allow permits to be issued unless several conditions were met. Chevron, at 840.  The EPA then promulgated regulations which allowed states to treat a plant which had several pollution-emitting devices as if the plant was under a “bubble,” effectively aggregating the polluting effects of all devices.  Id. at 840-841. The regulations allowed such a plant (or “bubble”) to install or modify polluting equipment without a permit where the installation did not increase total emissions from the bubble.  Id.

The NRDC and other organizations challenged the regulations as inconsistent with the CAA.  The D.C. Court of Appeals set the regulations aside, Natural Resources Defense Council, Inc. v. Gorsuch, 222 U.S.App.D.C. 268, 685 F.2d 718 (1982), finding that the CAA did not “define what Congress envisioned as a ‘stationary source,’ to which the permit program … should apply.”  The appellate court found that as the CAA’s purpose was to improve air quality, and the “bubble” concept did not advance that purpose, the EPA’s regulations were contrary to the statute and therefore invalid.

The Supreme Court reversed and provided the following analytical framework to review an agency’s construction of the statute it administers:

  • Has Congress directly addressed the precise question at issue?
  • If Congress has not directly addressed the precise question at issue, the court does not impose its own construction on the statute, but looks to see whether the agency’s answer is based on a permissible construction of the statute.

Id. at 842-843.  The Chevron Court explained:

“’The power of an administrative agency to administer a congressionally created … program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress. If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.

We have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations.”

The Court found that 1) Congress did not directly address the bubble concept, but 2) the EPA’s use of the bubble concept was a reasonable policy choice for the agency to make. Id. at 845.

  1. The Major Questions Doctrine

Without identifying Chevron by name, the Roberts Court has severely limited if not effectively overturned this case by way of the “major questions doctrine.”  This doctrine was first discussed by the Court in Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000), citing to then-Judge Stephen Breyer’s article Judicial Review of Questions of Law and Policy, 38 Admin. L.Rev. 363, 370 (1986).  In the article, Judge Breyer considered courts’ deference to agencies, and noted “Congress is more likely to have focused upon, and answered, major questions, while leaving interstitial matters to answer themselves in the course of the statute’s daily administration.”[1]

In FDA v. Brown & Williamson, the FDA claimed authority to regulate tobacco after having previously and expressly disavowed any such authority.  Id. at 125. The FDA now claimed that cigarettes were both a “restricted device” and a “combination product” and therefore subject to regulation.  Id. at 129.  The Court found the FDA’s attempts at regulation contravened the clear intent of Congress.  Id. at 132.  It also noted that if FDA could regulate cigarettes, it would have no choice but to ban them as unsafe, and that the FDA had previously said as much.  Id at 136-137. Finally, the Court found that as other statutes passed by Congress specifically allowed the sale of tobacco products without regulation by the FDA, the FDA’s regulation was invalid because it was inconsistent with those statutes. Id. at 143-144.  The Court noted that while the FDA had properly and amply identified a public health concern to be addressed, i.e. smoking by children, its regulations were not “grounded in a valid grant of authority from Congress” and were therefore invalid. Id. at 161.

The “major questions doctrine” then went dormant for two decades until reappearing in Gundy v. United States in a dissent penned by Justice Gorsuch and joined by Chief Justice Roberts and Justice Thomas.  That case involved the authority given by Congress to the Attorney General to require sex offenders to be registered.  The dissent found the authority was an improper delegation of legislative power to the executive branch.  See Gundy v. United States, ___ U.S. ___, 139 S. Ct. 2116, 2148 (2019)(dissent by Gorsuch, J.).

As the Court’s composition changed over the next twenty years, the Justices began dropping hints that the major questions doctrine would be brought to bear on regulatory issues.  Paul v. United States, ___ U.S. ___,  140 S. Ct. 342 (2019)(Justice Kavanaugh assents to denial of cert., but states that Justice Gorsuch’s dissent in Gundy showed that the major questions doctrine would warrant further consideration in future cases.); Dep’t of Homeland Sec. v. Regents of the Univ. of California, ___ U.S. ___, 140 S. Ct. 1891, 1925 (2020)(dissent of Sotomayor, J. on immigration regulations).

The major questions doctrine first appeared in a majority opinion in Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., Occupational Safety & Health Admin., ___ U.S. ___, 142 S. Ct. 661 (2022).  In this case, the Occupational Safety & Health Administration (OSHA) issued an emergency regulation that required certain employers to mandate that their employees be vaccinated against COVID. The Court found that OSHA had no statutory authority to issue such a regulation, holding:

“The major questions doctrine [guards] against unintentional, oblique, or otherwise unlikely delegations of the legislative power. Sometimes, Congress passes broadly worded statutes seeking to resolve important policy questions in a field while leaving an agency to work out the details of implementation.  Later, the agency may seek to exploit some gap, ambiguity, or doubtful expression in Congress’s statutes to assume responsibilities far beyond its initial assignment.  The major questions doctrine guards against this possibility by recognizing that Congress does not usually ‘hide elephants in mouseholes.’  In this way, the doctrine is ‘a vital check on expansive and aggressive assertions of executive authority.’”

Id. (citations omitted).

In the past year, the Court has greatly curtailed the EPA’s discretion to issue or rely upon regulations that cannot be linked to clear statutory authority. W. Virginia v. Env’t Prot. Agency, ___ U.S. ___, 142 S. Ct. 2587, 2612 (2022); Sackett v. Env’t Prot. Agency, No. 21-454, 2023 WL 3632751, at *14 (U.S. May 25, 2023).  While the Court claims this doctrine is limited because it is focused on whether an agency has clear congressional authorization when it make decisions of extraordinary “economic and political significance,” it is hard to see how most federal regulations would not be of such significance.

Effectively, these cases overrule Chevron.  While Chevron’s test was:

  • Has Congress directly addressed the precise question at issue?
  • If no, is the agency’s regulation based on a permissible construction of the statute?
  • If yes, then the regulation is valid.

under Sackett et al., the test appears to be:

  • Has Congress directly addressed the precise question at issue?
  • If no, is the agency’s regulation of “extraordinary” economic and political significance?
  • If yes, then the regulation is not based on a permissible construction of the statute and is invalid.[2]

Note that in W. Va v. EPA, the agency had set up a program to address emissions, much like it did in Chevron. But in W. Va v. EPA, the Court found that because the program was not envisioned by Congress, and the regulation would give the EPA control over the fuels used to generate power, it would have extraordinary economic impact and therefore was not due deference – nearly the opposite of Chevron.  While Chevron may not be overruled, it has little precedential authority at this point.

  • The Likely Non-Viability Of Special Education Regulations Under The Rehabilitation Act.

Under the Supreme Court’s major questions doctrine, the Section 504 regulations on special education, 34 C.F.R. 104.33, are likely invalid.  Applying the Court’s analytical framework set out in FDA v. Brown & Williamson and Sackett, the first question in reviewing the regulations is to determine whether Congress has addressed special education in the Rehabilitation Act or in other statutes.

The statutory language of Section 504 does not expressly or implicitly address special education or special education concepts such as “free appropriate public education” (FAPE) or extended school year (ESY) services.  The focus of the statute is to ensure that:

“No otherwise qualified individual with a disability in the United States, […] shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.”

Local education agencies are included in the “program or activity” that may not exclude a person with a disability.  29 U.S.C. § 794(b)(2)(B).

Additionally, Congress has addressed special education in exhaustive detail in the Individuals with Disabilities Education Act (IDEA) 20 U.S.C. § 1400 et seq., which was first passed as the Education of the Handicapped Act in 1975.  Despite Congress’ direction as set out in the IDEA, the U.S. Dept. of Education’s Office for Civil Rights has interpreted the Rehabilitation Act to impose special education requirements on all public school systems.  34 CFR. 104.33; see Clark County (NV) Sch. Dist.16 IDELR 311 (OCR 1989); Dallas County (TX) Suburban Coop. & Dallas County Sch., 352 IDELR 360 (OCR 1987); Coachella Valley (CA) Unified Sch. Dist., 311 IDELR 42 (OCR 1985); and Baltimore (MD) City Pub. Schs., 352 IDELR 185 (OCR 1986).

Applying the Supreme Court’s major questions doctrine, the language of the Rehabilitation Act does not address special education at all, whereas Congress has specifically and thoroughly addressed special education in the IDEA.  Based on the Court’s major questions doctrine, this strongly suggests that Congress did not give authority for the U.S. Dept. of Education to issue regulations on special education pursuant to the Rehabilitation Act.  This should be sufficient to block the Rehabilitation Act regulations on special education.

But even if a court found that Congress had not addressed special education in the Rehabiliation Act, the next analytical step would be whether the regulation is of “extraordinary” economic and political significance.  Section 504’s special education regulations apply to every public school in the United States that receives federal dollars, which is likely all public schools.  These schools have staff who are responsible to evaluate, assess, review, and hold meetings on “504 plans” for eligible students, and may also have litigation related to 504 plans and services, all at significant public expense.  Under W.Va v. EPA, this should constitute extraordinary economic and political significance.  As there is no statutory authority for special education in the Rehabilitation Act, Congress has spoken to special education in the IDEA, and the 504 special education regulations have extraordinary economic and political significance, these regulations should be struck down under the major questions doctrine.

  1. Next Steps

Obviously, schools should continue to comply with the Rehabilitation Act and its regulations for the time being.  In the cases cited above, the agency’s regulation was challenged either immediately upon promulgation[3], or upon enforcement action by the agency, with the plaintiff seeking declaratory and injunctive relief.[4]  The U.S. Dept. of Education does enforce the Rehabilitation Act, see supra, and so it is possible for a school system to take the route set out by appellants in Sackett v. Env’t Prot. Agency.

But more commonly a parent brings a Section 504 claim via a request for a due process hearing.  In the appropriate case, school attorneys should consider requesting a declaratory judgment that Section 504 runs afoul of the major questions doctrine and must be struck.


William Fields is Counsel in PK Law’s Education, Labor, and Employment Group. In his practice, Bill focuses on the representation of county school boards across Maryland, as well as representing private schools, higher education institutions, and private sector employers with employment and labor issues. As an Assistant Attorney General, Bill was counsel to the Maryland State Department of Education and the Maryland School for the Deaf.  Previously, Bill was an Assistant Public Defender in the Maryland Office of the Public Defender’s Parental Defense Division, and Staff Attorney with Disability Rights Maryland. He can be reached at 410-740-3177 or


[1]  The reader is encouraged to determine whether this article and its use in FDA v. Brown are consistent vel non.

[2] To date, it does not appear any court has issued an opinion finding a regulation is not of economic and political significance.

[3] BST Holdings, L.L.C. v. Occupational Safety & Health Admin., United States Dep’t of Lab., 17 F.4th 604, 609 (5th Cir. 2021)(OSHA COVID rule); Coyne Beahm, Inc. v. U.S. Food & Drug Admin., 966 F. Supp. 1374, 1379 (M.D.N.C. 1997), rev’d sub nom. Brown & Williamson Tobacco Corp. v. Food & Drug Admin., 153 F.3d 155 (4th Cir. 1998), aff’d, 529 U.S. 120 (2000)(FDA cigarette rule); W. Virginia v. Env’t Prot. Agency, 213 L. Ed. 2d 896, 142 S. Ct. 2587, 2605 (2022) (EPA pollution rule),

[4] Sackett v. United States Env’t Prot. Agency, No. 2:08-CV-00185-EJL, 2019 WL 13026870, at *1 (D. Idaho Mar. 31, 2019), aff’d sub nom. Sackett v. U.S. Env’t Prot. Agency, 8 F.4th 1075 (9th Cir. 2021), rev’d and remanded sub nom. Sackett v. Env’t Prot. Agency, 143 S. Ct. 1322 (2023).