Over the last two years, the Supreme Court’s six conservative justices have wielded tremendous power over federal decision-making by striking down a wide range of consequential policies: the Centers for Disease Control’s national eviction moratorium, the Occupational Safety and Health Administration’s Covid-19 testing mandate, and a moribund Obama-era rule on power-plant emissions. If the justices likewise nullify President Biden’s executive order on student debt relief, they will use the same mechanism as in those prior examples: the major questions doctrine.
That doctrine, which allows the justices to overturn a federal regulation if they think Congress didn’t “speak clearly” enough to authorize it, has seen a meteoric rise amid the court’s increasingly conservative tilt. And unlike most legal doctrines frequently cited by the court, this one does not have a long and distinguished history. The New York Times’ Adam Liptak noted earlier this week that it first appeared by name in a federal court opinion in 2017, when then-Judge Brett Kavanaugh mentioned it in a dissenting opinion on the D.C. Circuit Court of Appeals. Before then, it had spent only a few years percolating in conservative legal circles.
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