In March 2022, the Consumer Financial Protection Bureau (CFPB) updated its Supervision and Examination Manual to clarify that discrimination can qualify as an “unfair . . . practice” prohibited by federal law. The Chamber of Congress and other industry plaintiffs challenged the Manual update, arguing that it violated the major questions doctrine. In September 2023, the Eastern District of Texas held that the Manual update was unlawful, and the CFPB subsequently appealed to the Fifth Circuit.

In August 2024, 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 CFPB’s update to its Examination Manual is far from “extraordinary,”  and none of the requirements for applying the major questions doctrine is satisfied in this case. The update 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. The CFPB is merely carrying out its existing obligation under the Dodd-Frank Act to prevent consumer financial services providers from “engaging in an unfair, deceptive, or abusive act or practice under Federal law.”

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. In addition, 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 update to the Examination Manual 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 Fifth Circuit should decline to apply the doctrine and should uphold the CFPB’s revision to its Examination Manual.