WATERLOO – President Joe Biden’s prospects of getting his program passed via Congress are limited as a result of Republicans obtaining control of the House of Representatives. After the midterm elections, it is a challenge that the majority of first-term presidents face.
But Biden must overcome another obstacle that might block a route that his predecessors have long used as a fallback: the federal courts, particularly the Supreme Court, are cracking down on efforts by government agencies to make significant policy changes without approval from Congress.
Going it alone is getting more difficult to argue in court, whether it be with a pen-and-phone method, as President Barack Obama put it during his second term, or by declaring a national emergency to fund for a border wall, as President Donald Trump did in 2019.
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Biden’s $400 billion proposal to eliminate student loan debt has already been suspended by the courts. A program from the Obama administration protecting illegal immigrants who were brought to the country as minors was overturned by an appeals court last month. In January, the Supreme Court put an end to Biden’s vaccination or testing requirement for big companies. And in June, the high court rejected an EPA initiative to reduce emissions from power plants.
The conservative movement has been trying for years to limit the “administrative state,” believing that agencies shouldn’t have as much authority to act without explicit legislative permission. In June, the Supreme Court strengthened that effort by using the “major issues doctrine” to reach a decision in a well-known climate change case.
Ian Gershengorn, a seasoned Supreme Court attorney, said that if the government is going to accomplish many of its aims, it will have to do it via the regulatory process, which will bring “big issue” objections. This philosophy “will come into play each time an agency is attempting to push the limits a little bit”
The Supreme Court expresses doubt about “major” agency rules
More than a week after the election on November 8, Republicans took control of the House late on Wednesday. As a result, that chamber will now be at conflict with the White House almost constantly. When they are unable to get their agenda through Congress, presidents of both parties often turn to executive orders and agency rules.
However, if such restrictions have a significant influence on the economy or are deemed to be of significant “political importance,” judges are expected to be wary of them under the big questions doctrine. The exact definitions of those phrases are unclear, and experts are currently disputing how and when courts should apply the idea.
For example, the theory may make it difficult for the Biden administration to reinstate Obama-era net neutrality regulations. Internet service providers like Verizon and Comcast would be prohibited from favoring some sites over others under those regulations, which the Federal Communications Commission first proposed and then abandoned.
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Others have questioned whether the Supreme Court’s reliance on the concept of key issues would have a significant influence on the way courts resolve legal challenges to regulations.
Professor of law at George Mason University Jennifer Mascott described it as “another tool in the toolbox for folks who want to find agency action unlawful” at a recent Federalist Society event, but noted that it largely follows the “textualist” approach courts have already been using for years to decide comparable cases. Judges make judgements using that textualist approach primarily based on the plain interpretation of the law.
The most recent case in which the theory has surfaced is the court battle over Biden’s student loan scheme. It was the basis for U.S. District Judge Mark Pittman’s judgment invalidating the loan program on November 10. The major-questions approach is applicable since the program is an agency activity with significant economic and political ramifications, according to Pittman.
However, the Biden administration argued before an appeals court on Thursday that the doctrine shouldn’t apply to the student loan program because, according to the administration, Congress had expressly given the Department of Education permission to waive or alter student loan program provisions in a 2003 law.
The administration’s lawyers informed the U.S. Court of Appeals for the 5th Circuit that “agencies routinely conduct politically divisive or economically important measures; the Supreme Court has never said the concept applies in all such circumstances.”
Major questions’ approach central to climate decision
The conservative majority of the Supreme Court used the major questions doctrine to strike down an attempt by the Environmental Protection Agency to control emissions from power plants that contribute to climate change in a high-profile environmental decision in June that was largely overshadowed by the 5-4 decision to overturn Roe v. Wade six days earlier.
Chief Justice John Roberts said in a 6-3 majority opinion that the theory permits courts to overturn rules in “exceptional instances” if they are not expressly authorized by a statute.
A law that grants the surgeon general the authority to “make and enforce such regulations as in his judgment are necessary to prevent the…spread of communicable diseases,” for example, does not grant him the right to halt evictions simply because tenants who are evicted from their apartments may end up in shelters, where COVID-19 could spread more readily.
The Supreme Court hinted last year that if the government wishes to stop evictions, it must persuade Congress to pass legislation giving them that authority. Some judges have said that it is not an excuse because it is impossible to enact such a bill via a divided Congress.
Associate Justice Neil Gorsuch said in the EPA case that the Constitution “sought to assure that any new laws would enjoy wide societal support by virtually requiring a broad consensus to enact legislation.” Therefore, he said, such rules will “benefit from input from a variety of diverse views” and “prove stable over time.”
The liberal justices of the court claim that is irrelevant. When Congress adopts broad wording, such as that included in the health bill, it is doing so on purpose to provide the agency vast authority. That may be so because legislators want it to be ready to act rapidly in the event of an emergency that Congress was unable to anticipate. Or it might be that Congress wishes to give the technical staff of an administration, who have the know-how to carry out the major objectives of a legislation, the benefit of the doubt.
Associate Justice Elena Kagan noted in her dissent from the EPA ruling that “over time, the administrative delegations Congress has made have served to establish a modern country” and cited rules that have made consumer goods like vehicles, consumer travel, and consumer items safer. “It wasn’t achieved just by means of law. It took place as a result of Congress giving administrative bodies enormous authority.
