See Kagan at p. 24: "The new major-questions doctrine works not to better understand— but instead to trump—the scope of a legislative delegation. Here is a fact of the matter: Congress delegates to agencies often and broadly. And it usually does so for sound reasons. Because agencies have expertise Congress lacks. Because times and circumstances change, and agencies are better able to keep up and respond. Because Congress knows that if it had to do everything, many desirable and even necessary things wouldn’t get done. In wielding the major-questions sword, last Term and this one, this Court overrules those legislative judgments. The doctrine forces Congress to delegate in highly specific terms—respecting, say, loan forgiveness of certain amounts for borrowers of certain incomes during pandemics of certain magnitudes....It is hard to identify and enumerate every possible application of a statute to every possible condition years in the future. So, again, Congress delegates broadly. Except that this Court won't let it reap the benefits of that choice."
How much should we worry that many laws will never see the light of day if Congress must either enact them itself or provide clear direction to administrative agencies? Is it not the primary purpose of separation of powers and multiple veto points to make it difficult for the remote national government to pass laws taxing, regulating, and redistributing? If, as Speaker Pelosi said, Congress wished to cancel large amounts of student debt, it could enact a new law doing so. Such a new law could designate which debtors are eligible (maybe only those masking less than $50,000 per annum?) and how much debt should be cancelled. That is the essence of the power to make law, not the power to execute law. Thoughts?
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