WASHINGTON (CN) — A challenge to President Joe Biden’s student loan forgiveness plan appeared to have lined up Supreme Court support this week, with some conservative justices focused on a doctrine that experts say gives the court a judicial veto over actions they dislike.
“I just wonder, given the posture of the case and given our historic concern about the separation of powers, you would recognize at least that this is a case that presents extraordinarily serious, important issues about the role of Congress and about the role that we should exercise in scrutinizing that — significant enough that the major questions doctrine ought to be considered implicated,” Chief Justice John Roberts asked the government on Tuesday.
Not even a year prior, Roberts wrote the majority opinion in a case that cemented the major questions doctrine in the court’s jurisprudence: West Virginia v. EPA, which limited the Environmental Protection Agency’s regulatory power under the Clean Air Act. The major questions doctrine governs agency interpretation of statutes passed by Congress and is derived from a 1984 ruling in Chevron USA Inc. v. National Resources Defense Council Inc.
Under Chevron, the court generally deferred to agency power unless Congress specified otherwise. That power was limited, however, to rare exceptions. In recent years, as some of the justices have shown disdain for Chevron, the idea of expanding those rare expectations became more prominent. Under the major questions doctrine, the court can shoot down “major” agency action if Congress did not “clearly” empower them.
What constitutes “major” agency action and “clear” congressional delegation is yet to be decided. In West Virginia, Roberts looked to the practical understanding of legislative intent and the separation-of-powers principles for when the major questions doctrine should be applied. But on Tuesday, when the justices questioned Biden’s authority to forgive student loan debt using the Higher Education Relief Opportunities for Students Act of 2003, it did not appear they had come to an agreement over the doctrine’s parameters.
“In the oral argument, the justices were even open to revisiting that theoretical basis for the major questions doctrine, which suggests to me that there's just a lot of unresolved questions in the justices' minds about what this doctrine even is,” Daniel Walters, an associate professor of law at Texas A&M University School of Law, said in a phone call.
One significant area of the justices' focus was the cost of Biden’s loan forgiveness plan, which will forgive up to $20,000 in loans for low-income borrowers who received Pell Grants and up to $10,000 from other borrowers earning less than $125,000 per year. The Department of Education has estimated that the plan’s total cost will be around $30 billion a year over the next decade. Roberts and other justices repeatedly cited the plan’s price tag in their questions.
“We're talking about half a trillion dollars and 43 million Americans,” the Bush appointee said.
While there are counterarguments that suggest the cost of a program should be evaluated after the court has determined if a plan qualifies under statutory authority, it appears some justices think there might be a case to consider cost as a reason to apply the major questions doctrine. Experts note that if the justices did want to do this, West Virginia mentions agency action of economic significance to fall under the major questions doctrine.
Court watchers say if the justices did decide to consider cost as a trigger for the major questions doctrine, it would signal a shift in the court’s role within the governing structure.
“Ever since the New Deal, the Supreme Court has been reluctant to second-guess the economic reasonableness of policies,” Jeffrey Rosen, legal scholar and president and CEO of the National Constitution Center, said in a phone call. "And with a major questions doctrine, it's now returning to a pre-New Deal understanding of the court's role that's much more vigorous in policing separation-of-powers boundaries and much more likely to strike down programs on the grounds that they might have bad economic effects."
The court’s gravitation toward the major questions doctrine coincides with a greater push from Republican and Democratic administrations toward executive action in light of congressional stalemates. Many critics of Biden’s student loan forgiveness plan chalk his executive action up to lawmakers’ impasse on the longtime Democratic goal.
“The court is taking a formalistic response and saying, ‘all Congress has to do is do its job. If it doesn't like a policy, it can say so. And if it does like it, should say so clearly,’” Rosen said. “That ignores the polarization that's leading presidents to resort to these executive actions in the first place. And the practical effect of this is that it'll be hard for presidents to enact policies that might even be supported by national majorities because of congressional polarization.”
If presidents can no longer compensate for congressional inaction using executive authority, experts warn the result could be less government action overall.
"I don't think it's very likely that Congress is going to pick up the slack much in light of the major questions doctrine," Walters said. "The much more likely outcome seems to be that we're just going to have the Supreme Court using this doctrine as effectively a judicial veto to provisions that it doesn't like."
By wielding the major questions doctrine against administrative authority, experts say the court has shifted the separation-of-powers equilibrium.
“We're talking about a major shift of power from Congress and the executive branch to the courts,” Walters said. “There's much that remains to be seen about how aggressively the court wants to use the major questions doctrine, but I think the raw potential is there for there to be a really big transformation of how our separation of powers system works.”
The elephant in the room is if the court will even get to decide the merits of the case because of procedural hurdles the challenges could fail to meet. The states challenging Biden’s student debt forgiveness plan have to prove they were injured by the program to achieve standing. Without standing, the justices cannot rule on whether a major question for Congress is even inherent in Biden’s plan.
Noting the justices' enthusiasm to invoke the major questions doctrine, experts expect concurring opinions to opine on the major questions doctrine if the court ultimately dismisses the challenge for lack of standing. While these opinions would not be binding, they could still shed some light on a crucial judicial tool in limiting administrative power.
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