The poker players motto - you need to know when to hold 'em and when to fold 'em - is the progressive lawyers and judges question of the moment. Do we rage against the dying of the light, or go gentle into that good night? Jed Shugerman has opted for the latter. Confronted with the newly minted "major questions doctrine" - the conservative sabre du jour - Shugerman takes the practical lawyer's route. Count the votes, face the music and dance. Some lawyers will label the "doctrine" specious; judges will try to evade its expectations, or craft more dissents [the fate of the high Court's Greek chorus of three] ; others will aim to counter-pack the Courts; and more will cry, with Joe Biden, Vote, Vote, Vote for Democrats.
Equity’s existence partly is and
partly is not intended by the legislators; not intended where they have noticed
no defect in the law; intended where they find themselves unable to define
things exactly, and are obligated to legislate as if the that held good
always which in fact only holds good
usually.
Aristotle - Rhetoric - Book I, para
13
In Brown & Williamson, for instance, the Food and Drug Administration claimed that its authority over “drugs” and “devices” included the power to regulate, and even ban, tobacco products. Id., at 126–127. We rejected that “expansive construction of the statute,” concluding that “Congress could not have intended to delegate” such a sweeping and consequential authority “in so cryptic a fashion.” Id., at 160. In Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ____ (2021) (per curiam) , we concluded that the Centers for Disease Control and Prevention could not, under its authority to adopt measures “necessary to prevent the . . . spread of ” disease, institute a nationwide eviction moratorium in response to the COVID–19 pandemic. We found the statute’s language a “wafer-thin reed” on which to rest such a measure, given “the sheer scope of the CDC’s claimed authority,” its “unprecedented” nature, and the fact that Congress had failed to extend the moratorium after previously having done so.
Even if the text were ambiguous, the sheer scope of the CDC’s claimed authority under [42 USC 264(a) would counsel against the Government’s interpretation. We expect Congress to speak clearly when authorizing an agency to exercise powers of “vast ‘economic and political significance.’” Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 160 (2000)).
Together with the court’s elimination of the constitutional right to abortion, restriction of gun regulations, and expansion of religious authority, a clear picture is emerging: The people have less power now to create a safe and healthy society. Instead, the court has consolidated power in its own hands to the benefit of factional economic and cultural interests.
Biden’s Student-Debt Rescue Plan Is a Legal Mess - The Atlantic
The good news is that there’s still time to fix it.
In conjunction with the announcement of the program, the Office of Legal Counsel at the Department of Justice issued a memo explaining the legal basis for it: the COVID-19 emergency. Unfortunately, no evidence has emerged that the Biden administration is tailoring the program to fit this justification, nor have Biden and his team offered any sign that they are taking seriously the Supreme Court’s recent administrative-law rulings or its clear skepticism about invoking the COVID-19 emergency as a reason for any far-reaching government policy.
In its memo, the Office of Legal Counsel relied on a post-9/11 statute—the Higher Education Relief Opportunities for Students (or HEROES) Act of 2003—as the legal basis for this executive action. That statute, the OLC explained, allows the secretary of Education to make major changes to policy if “a national emergency” caused student borrowers to be “placed in a worse position financially.”
The OLC concluded that the coronavirus pandemic fit the text of the statute as a “national emergency” and that a debt-relief program would ensure that Americans with student debt were not left in a “worse position.” As a matter of narrow textualism, all of this seems plausible. And as a matter of administrative law circa 1990 or 2000 or 2010, under a famous (or infamous) precedent known as Chevron, courts were supposed to defer to reasonable interpretations of ambiguous statutes.
However, a lot of administrative law has changed over the past decade, especially in the past year. The Roberts Court has effectively abandoned Chevron deference to the executive branch in questions of “vast economic and political significance.” This new approach, known as “the major-questions doctrine,” does not turn on “textualism”—reading just the words of the statute on their own—but instead emphasizes the context, purposes, and legislative history of the statute. As a matter of theory and common sense, this distinction between “major questions” and more mundane or technical agency policies makes sense: Judges do not have the time or expertise to dig into the historical details of statutes in many mundane or technical cases, but when the policy is major, the statutory purposes are more readily discoverable, and they must be clear and salient to permit an executive agency to make a major policy change. The Roberts Court relied on this “major-questions doctrine” approach to strike down two of the Biden administration’s boldest COVID-emergency policies—the eviction moratorium and the vaccine-or-testing mandate at certain places of employment—and a significant Obama-era climate-change policy in West Virginia v. EPA.****
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