Shugerman - fold 'em ?-Biden's Student-Debt Rescue Plan Is a Legal Mess - The Atlantic

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.

Twitter has seen a raft of commentary as by Julian Mortenson (Michigan) who foresees a hostile Supreme Court but a reasonably well-founded initiative.  Luke Herrine criticizes Shugerman for downplaying the challengers standing problems, and for positioning himself as an "even liberal professors" critic.

The Shugerman `practical lawyer' strategy looks to minimize the damage and find interstices in which to avoid the worst of the Supreme Court conservative super-majority's wrath.  Jed Shugerman dismisses the Department of Justice elite Office of Legal Counsel's reliance on the 2003 HEROES Act as doomed for its failure to accede to the high court's increasingly firm embrace in West Virginia v. EPA of the so-called Major Questions Doctrine. The court there stripped the EPA of its right to enact a contemplated rule forcing power plants to move away from fossil fuels.  Because Congress had not spoken "clearly", Chief Justice John Roberts wrote for the six right wing Justices,  the agency lacked authority to adopts its contemplated generation-shifting Clean Power Plan.

The problem of how specific a law need be is an ancient one.  Too much and the judge's equity power to adapt to the individual case is erased, too little and the judge's preference may vitiate the legislators purposes.  Twenty five hundred years ago Aristotle observed:

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

Deference to legislative intent, and to the administrative will of elected executives has earned the judiciary the term "the least dangerous branch".  But the Supreme Court, flush with its supermajority, has now elevated a handful of its recent anti-regulatory rulings into a "doctrine", the so-called `major questions doctrine'. 

In these cases the conservative court declares that an agency - relying on a  statute  "[d]espite its textual plausibility"- cannot take action that will have major impact unless Congress has spoken "clearly".  

This is not a recently invented rule of statutory interpretation.  It is a substantive policy objection to the powers of federal administrative agencies which must implement broad legislative directives, subject to Administrative Procedure Act judicial review 5 USC 706 for arbitrariness and unconstitutionality.  It is the latest of a string of cases that began with the Court's invalidating FDA efforts to regulate nicotine - the addictive drug in tobacco. FDA v. Brown & Williamson Tobacco Co. 529 U. S. 120, 159 (2000).  That decision - which granted the tobacco industry years of continued free rein, has recently been developed in a string of cases.  John Roberts for the majority writes in the WVA v. EPA opinion:

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.

The Department of Labor's test or vaccinate Rule fell.  In NFIB v. OSHA the high court  enjoined that emergency Rule, with Justices Gorsuch and Alito relying on the so called major questions doctrine despite the text of 29 USC 655(c)(1) which instructs OSHA to issue Emergency Temporary Standards if "necessary to protect employees" from "new agents". 

Similarly the per curiam opinion in Alabama Realtors Association v. Department of Health and Human Services acknowledges that the Public Health Services Act 42 U. S. C. §264(a) states: “The Surgeon General, with the approval of the [Secretary of Health and Human Services], is authorized to make and enforce such regulations as in his are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.

But the court's unsigned opinion enjoining the moratorium declared:

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)). 

So much for textualism.  Plain language now may be found an insufficient "paper-thin reed", which dissolves under the weight of judges disdain.  The super-majority of six styles their demand for legislative clarity as deference to the elected branches,  It is more aptly seen as encroachment .  Perhaps it can be better framed in Josh Chafetz's phrase "judicial aggrandizement" or, in Mark Lemley's provocative essay The Imperial Supreme Court from which none is safe - not federal agencies, nor states, nor precedents declaring or limiting fundamental rights.  

We can see the imperial approach in the elevation of the self-defense right above state police power in New York State Rifle & Pistol v. Bruen,  erasing a constitutional privacy right to abortion in Dobbs v. Jackson Women's Health, and now in WVA v. EPA in which fossil fuel dependent states and power plant operators succeeded in putting a keep away sign on the EPA's door.

Senator Sheldon Whitehouse, with his New England colleagues Richard Blumenthal, Elizabeth Warren, and Bernie Sanders,  in an amicus brief in the  WVA v. EPA case paint a picture of a phalanx of fossil fuel funded amici entreating the Court to bypass Congress and the EPA to turn the court into their protectors. The progressive Senators warn too of the threat posed to EPA authority by the court's closely related non-delegation doctrine.

As Blake Emerson (UCLA) points out in a recent Slate piece  titled "What's Really at Stake" in the West Virginia case:

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.

- GWC 9/6/2022

Biden’s Student-Debt Rescue Plan Is a Legal Mess - The Atlantic

The good news is that there’s still time to fix it.

By Jed Shugerman [ Jed Shugerman is a professor at Fordham Law, a visiting professor at Boston University School of Law, and the author of The People's Courts and shugerblog.com.]

The Biden administration’s recently announced plan to reduce student debt for borrowers who earn less than $125,000 is popular, according to recent polls. Unfortunately, the plan has a major legal flaw: The administration’s arguments for its executive power to make such a broad effort under federal law will likely lose—and should lose—in the courts. The good news, for President Joe Biden and for borrowers, is that the administration has time to change those arguments.

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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