How long has this been going on? The Major Questions Doctrine and the Judicial Stranglehold on the President and Congress

How long has this been going on?  The Major Questions Doctrine and the Judicial Stranglehold on the President and Congress

There’ll be time enough to analyze Judge Gorsuch’s work, but after reading a stack of his opinions over the weekend, the most salient parts of his judicial record are as follows:

1. A keen appreciation for constitutional structure as a guarantor of our rights and liberties.

2. A real devotion to originalism — probably more than the self  described “faint  hearted originalist” Antonin Scalia — and textualism.

3. Strong support for the freedom of speech and religion, and the First Amendment more broadly.

4. Skepticism of the administrative state.

Ilya Shapiro – Cato at Liberty  – 2017

Five years is a blink of the eye on a court where service is for life and only a crime in broad daylight can end your tenure.  But in that moment Neil Gorsuch has vindicated the hopes of his conservative celebrants.  Ilya Shapiro – whose intemperate remarks deprecating then-nominee Ketanji Brown Jackson cost him a job at Georgetown – accurately forecast the role that then Tenth Circuit Judge Neil Gorsuch – son of an anti-environmentalist EPA Administrator – would play on the high court.

When Henry the VIII chopped off the head of his Chancellor Thomas More, the author of Utopia, no one thought that a Chancellor could strike at the King himself.  But the men who met in Philadelphia in 1787 so feared the monarch, that rather than declare Congressional/parliamentary Supremacy they separated the judiciary from the Executive.  They doubtless had no clear sense of where that choice might lead.  But by placing in separate judiciary the jurisdiction of both law and equity they laid the foundation for an adversarial relationship between judges and Executive.

Congress - a part time institution - 150 years later   granted the judiciary oversight powers via the Administrative Procedure Act.  But even the extensive powers granted did not satisfy everyone.

Four years ago Neil Gorsuch lamented that the high court’s 'Auer’ deference doctrine embedded “a systematic bias in favor of the federal government, the most powerful of parties, and against everyone else.”   Pining for the days before the Administrative Procedure Act [APA] Justice Gorsuch , concurring in Kisor v. Wilkie, wrote “[O]verruling Auer” would take us “directly back to Skidmore [v. Swift & Co. (1944],  liberating courts to decide cases based on their independent judgment and `follow [the] agency’s [view] only to the extent it is persuasive.”

 

Many expected that the expansive deference granted by emergency powers laws would see a period of extensive executive authority.  But the election of Donald Trump, who delegated judicial selection to Mitch McConnell and Leonard Leo of the Federalist Society yielded a super majority on the Supreme Court eager to cabin the executive branch.

The process of reasoning by incomplete analogy has yielded the Major Questions Doctrine now enthroned by John Roberts in West Virginia v. EPA.  The Chief Justice there rather breezily brought the phrase into the pantheon of interpretive maxims.  

`Majorness' in King v. Burwell simply meant that the consequence of the interpretation urged by the objectors would be grossly contrary to the multiple objectives of a comprehensive legislation transforming a major part of the economy in a vital sector.  Similarly in the Brown and Williamson case the Court recognized that even though nicotine could reasonably be understood as a drug, the use of tobacco was so deeply embedded in the culture that Congress plainly did not intend to give the FDA comprehensive authority 

But in what Mila Sohoni has labeled the Major Questions Quartet the conservative 6-3 majority has embedded this vague slogan and elevated it to the status of Doctrine.  Josh Chafetz - a Congressional scholar - has labeled the process judicial aggrandizement, and IP professor Mark Lemley has given it the name The imperial Supreme Court.  They key fact is that in the relations between the three branches of government the Supreme Court - ideologically unified - has increased its power.

Taking advantage of a divided Congress, and its virtually unreviewable rulings on Constitutional grounds the unelected, life term judges are positioned to hobble a President and executive branch.  They have chosen to do so by creating something called the Major Questions Doctrine. It is a sub-constitutional tool of untested but already demonstrably broad scope.

It’s vintage is very recent.  The oldest case they rely on is Brown & Williamson v. FDA (2000). That decision can be readily defended on the grounds that it was a qualitative expansion of administrative power by the FDA which - reasonably characterized nicotine as a drug and cigarets as a means of delivering the drug. But to regulate tobacco required an administrative regime which no one doubted Congress had not intended to authorize.  So ordinary principles of statutory construction were sufficient to reach the result - that the FDA was not empowered to regulate cigarets as a drug.

The Doctrine really comes into its own only with Alabama Association of Realtors in 2021. The court, per curiam writes:

The CDC relied on §361(a) of the Public Health Service Act for authority to promulgate and extend the eviction moratorium. See 58 Stat. 703, as amended, 42 U. S. C. §264(a). That provision 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 judgment 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.

For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.”

See also 42 CFR §70.2 (2020) (delegating this authority to the CDC). 

Even if the text were ambiguous, the sheer scope of the CDC’s claimed authority under §361(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.’” 

From that modest beginning a new Doctrine has sprung.  No longer a tool of statutory construction, it has become a substantive rule of law: that Congressional authority - and therefore Executive authority as the good faith executor of Congressional will, cannot act unless the statutory mandate is “clear”.

That is the situation that Solicitor General Elizabeth Prelogar faced last week as she rose to defend the Secretary of Education’s plan to waive modest amounts of student loan debt for millions of Americans.

- George Conk

March 7, 2023 

Biden Loan relief gets Cold Reception - Amy Howe

Oral Argument - Biden v Nebraska. Transcript 

Opening Statement - SG Elizabeth Prelogar 383 words, 2 minutes

Memorandum of the Department of Justice in support of the student loan forgiveness plan