The D.C. Circuit published eight opinions this week, including two on the Foreign Sovereign Immunities Act (here and here), one on standing to appeal a denial of a motion for class certification, another on the constitutionality of the Digital Millennium Copyright Act (spoiler alert: the facial challenges failed), and one on what I trust is rarely a contentious issue: a lawyer’s authority to represent a party. The three administrative law opinions were standard fare for the Circuit: a FERC order here, a DHS rule there, and an (unconstitutional!) NIH policy over there.

Let’s take those in reverse. In People for the Ethical Treatment of Animals v. Tabak, Judge Garcia wrote for a unanimous panel that held that the National Institute of Health’s social media moderation policy violates the First Amendment. The “off-topic posts” policy filters out comments that contain keywords such as “animal,” “testing,” and “cruel.” This policy unsurprisingly had an impact on PETA, which, in its own words, has “been at the forefront of exposing and ending experiments on animals.”

Classifying NIH’s comments threads as a limited public forum, the D.C. Circuit held that the off-topic posts filters were not reasonable restrictions on speech. The purpose of the NIH comments sections is to communicate with the public. And, the D.C. Circuit reasoned, the off-topic restriction furthered a permissible objective of keeping each topic thread on-topic. The First Amendment problem, however, was that the NIH had not reasonably distinguished between on-topic and off-topic posts. Crucially, “[a] substantial portion of the NIH posts included in the stipulated record either directly depict animals or discuss research conducted on animals.” They are, in other words, about animal testing. NIH itself thus repeatedly has made “animal testing” an on-topic subject, and “[t]o say that comments related to animal testing are categorically off-topic when a significant portion of NIH’s posts are about research conducted on animals defies common sense.” What, then, was NIH up to? The record was revealing: “NIH’s off-topic restriction [was] further compromised by the fact that NIH chose to moderate its comment threads in a way that skews sharply against the appellants’ viewpoint.” And so, the D.C. Circuit held, the NIH’s policy was unconstitutional.

The D.C. Circuit’s second administrative law opinion of the week straightforwardly applied Circuit precedent, with an interesting coda on the major questions doctrine. In Save JOBS USA v. DHS, Judge Walker wrote for a unanimous panel that rejected a challenge to a DHS rule about visa holders’ right to work in the U.S. The challengers argued that the rule violated the Immigration and Nationality Act. But the D.C. Circuit had already addressed the question in the Washtech case. Under that precedent, the analysis was simple: “Here, DHS authorized certain nonimmigrants to work in the United States—just like in Washtech. And to do so, DHS relied on § 1184(a)(1) and § 1103(a) of the INA—just like in Washtech.” All that was left for the panel to do was to remind the challengers that one panel “cannot overrule a prior panel’s decision, except via an Irons footnote or en banc review.” (Oh, the good old Irons footnote!)

Well, that was not quite all, because the panel also rejected the argument that the major questions doctrine authorized it to disregard Washtech. The panel’s reasoning is worth quoting:

The major questions doctrine holds that courts “expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.” West Virginia v. EPA, 597 U.S. 697, 716 (2022) (cleaned up). Like a dictionary, or expressio unius, or the extraterritoriality canon, the major questions doctrine is a tool of statutory interpretation. That’s true whether you think it’s a linguistic canon, or a substantive canon with a constitutional basis safeguarding the separation of powers, or both. Compare Biden v. Nebraska, 143 S. Ct. 2355, 2376-83 (2023) (Barrett, J., concurring), with West Virginia, 597 U.S. at 736-46 (Gorsuch, J., concurring). Regardless, the function of the major questions doctrine is simple—to help courts figure out what a statute means. And so far as today’s case is concerned, Washtech has already done that. . . .

Washtech was decided after West Virginia. So the relationship between those two cases was Washtech’s legal issue, not ours. And “if stare decisis means anything, it means a future court lacks the authority to say a previous court was wrong about how it resolved the actual legal issue before it.” Gibbons v. Gibbs, 99 F.4th 211, 215 (4th Cir. 2024).

There’s a lot there to think through here. Is the major questions doctrine really like a dictionary? Does it, like a dictionary, “help courts figure out what a statute means”? (And are “mere dictionaries” all that authoritative, anyway?) Is the major questions doctrine a semantic canon? A substantive clear statement rule? Just what, precisely, is the separation of powers justification for the major questions doctrine?

And then there was FERC. (At the D.C. Circuit, there’s always FERC.) In New Jersey Conservation Foundation v. FERC, Judge Childs wrote for a unanimous panel that vacated FERC orders allowing the construction of a gas pipeline. FERC had not adequately considered the environmental impacts or whether the pipeline’s additional capacity was actually needed. The former was a NEPA violation and the latter was a problem under Section 7 of the Natural Gas Act. As to market need, there were studies that found that current capacity was enough for New Jersey ratepayers beyond 2030. Moreover, New Jersey state law requires public utilities to reduce their natural gas usage—which FERC arbitrarily disregarded because it had misinterpreted state law. Vacatur was appropriate under the Allied-Signal factors: “Where a pervasively deficient agency action is remanded, only in rare instances do the disruptive consequences alone determine whether the order is vacated.”