The Logic of the Major Questions Doctrine

It was far from surprising to see the Biden administration lose the student loans case, known as Biden v. Nebraska. The well-known conservative leanings of the Supreme Court aside, both Biden and other senior Democrats set themselves up for failure by repeatedly stating that the president lacked the authority to cancel student debt not very long before he decided that he could in August 2022. For example, Chief Justice John Roberts, who wrote the Biden v. Nebraska opinion, favorably quoted then House Speaker Nancy Pelosi’s remarks from July 2021: “People think that the president of the United States has the power for debt forgiveness. He does not. He can postpone. He can delay. But he does not have that power. That has to be an act of Congress.” The slow rollout of the plan itself also gave conservative legal activists ample time to plot their attack.

With the aid of Democratic Party incompetence, the Supreme Court’s conservative majority developed several arguments for striking down the debt relief plan. “The question here is not whether something should be done,” Chief Justice Roberts wrote, “it is who has the authority to do it.” Through its broad interpretation of the HEROES Act, he asserted, the “Executive [was] seizing the power of the Legislature.” The HEROES Act allows the president (through the secretary of education) to “waive” or “modify” student loan obligations during a national emergency, but the student loan forgiveness plan, Roberts said with derision, “has ‘modified’ the cited provisions [of the HEROES Act] only in the same sense that the French Revolution ‘modified’ the status of the French nobility.” Besides, Roberts added, the plan was announced just “a few weeks before President Biden stated that ‘the pandemic is over,’” undermining the plan’s COVID-19 emergency rationale.

The overarching problem, according to the six conservative justices for whom Roberts wrote, was that the cancelation of $430 billion in debt was “a decision of such magnitude and consequence” and a matter of such “earnest and profound debate across the country” that it must “rest with Congress itself, or an agency acting pursuant to a clear delegation” from Congress. If Congress wanted such bold executive action, it would have said so explicitly. Roberts referred to this logic as the “major questions doctrine,” a term first used by the Supreme Court in last term’s West Virginia v. Environmental Protection Agency decision but articulated differently in prior cases. “The shared intuition behind these cases,” Justice Amy Coney Barrett wrote in her Biden v. Nebraska concurrence, “is that a reasonable speaker would not understand Congress to confer an unusual form of authority [to the executive] without saying more.”

In both Roberts’s and Barrett’s opinions, discussions of pragmatism and Supreme Court precedents are much more prominent than discussions of the Constitution’s original meaning. Nevertheless, Roberts and Barrett trace the major questions doctrine to the separation of powers created by the Constitution. By stopping the executive branch from playing fast and loose with the powers given to it by Congress, the conservative justices believe that the major questions doctrine preserves the Constitution’s promise of a legislature that legislates and an executive that “faithfully” enforces the law but does not make it.

The Danger of the Major Questions Doctrine

On the other hand, an honest “originalist” could justifiably feel uncomfortable with the major questions doctrine. Although the framers of the Constitution deliberately vested “all legislative powers” in Congress, not the executive, it is debatable at best to conclude that the judiciary was supposed to police congressional delegations to the executive when the executive acted on matters of “earnest and profound debate.” Indeed, the original purpose of originalism — as popularized by conservatives in the 1970s and 1980s — was supposedly to cut the judiciary down to the modest role that the framers intended it to have. The major questions doctrine runs squarely against this purpose: it is a judge-made concept that gives more power to judges.

Apart from its dubious roots in the text, history, and structure of the Constitution, the major questions doctrine poses serious threats to the functionality of the federal government. As Justice Elena Kagan emphasized in her Biden v. Nebraska dissent, “Congress delegates to agencies often and broadly . . . because agencies have expertise Congress lacks,” “because times and circumstances change, and agencies are better able to keep up and respond,” and “because Congress knows that if it had to do everything, many desirable and even necessary things wouldn’t get done.”

In the context of student loan forgiveness, it seems as though the HEROES Act was a textbook example of broad delegation. In 1991 and 2002, Congress passed legislation providing student loan relief for Americans serving in the First Gulf War and those affected by the 9/11 attacks; in 2003, as Justice Kagan notes, “with those one-off statutes in its short-term memory, Congress decided there was a need for a broader and more durable emergency authorization,” so the HEROES Act did not mention any particular emergency, leaving this at the future discretion of the president and the secretary of education. It is irrelevant that President Biden said the pandemic was over “a few weeks” soon after announcing the student loan relief program, because a formal state of emergency still existed when the program was announced, and this is all the HEROES Act requires.

To be sure, it might have been unwise — and may often be unwise — for Congress to provide such broad delegations of power to the executive. Executive agencies are not always accountable and can be captured by the industries that they are supposed to regulate. But this has long been a complaint for the elected Congress or the elected president, not the unelected Supreme Court. The court waded into this territory in the 1930s, undermining New Deal legislation, but since 1937, when President Franklin D. Roosevelt threatened to pack the court, it has largely left the elected branches to figure out how they should divide or share their constitutional powers.

Among other examples, the Supreme Court has upheld delegations to the Federal Communications Commission to regulate in the “public interest,” to the under secretary of war to define “excessive profits” gained by subcontractors during wartime, to the Federal Power Commission to set “just and reasonable rates,” to the Environmental Protection Agency (EPA) to issue air-quality standards “requisite to protect the public health,” and to the US Sentencing Commission to set federal sentencing guidelines. For better or worse, almost the entire machinery of the federal government has come to rely on expansively worded delegations.

This is why the major questions doctrine is so dangerous. It allows the Supreme Court to look at almost any consequential action by a federal agency and question whether it was ever really authorized by Congress. Prior to Biden v. Nebraska, the current conservative Supreme Court has applied the doctrine to invalidate the EPA’s Clean Power Plan and the Center for Disease Control and Prevention’s eviction moratorium. In each case, the court reassured the public that it was not declaring these policies to be unconstitutional; it was only requiring Congress to be more explicit about what powers it had delegated. The problem, of course, is that Congress can rarely do this, because small factions can easily sabotage legislation, the Senate is a giant obstruction machine, and any remotely progressive legislation activates fierce resistance from powerful donors. In this context, the main achievement of the major questions doctrine will be an even more dysfunctional federal government.

Usually, the ability of the judiciary to implement dangerous doctrines such as this is limited by the Supreme Court’s standing rules. These rules require that a plaintiff show a real or imminent injury stemming from the government action that they seek to invalidate; they cannot simply say, “This is illegal!” and have their day in court. But in the Biden v. Nebraska case, the Supreme Court accepted a highly dubious theory of standing, allowing the state of Missouri (not, as the case name would suggest, Nebraska, which was one of five other states bringing suit) to sue on behalf of the Missouri Higher Education Loan Authority, a state-created corporation that is financially and legally independent from the state. Missouri itself suffered no plausible injury as a result of the student loan forgiveness plan.

If the Supreme Court is willing to make it this easy for states to sue the federal government, then the major questions doctrine will be coming soon to a courtroom near you. More menacingly, conservative legal activists will accelerate toward their long-standing goal of dismantling the “administrative state.”