Last word on nondelegation doctrine and Major Questions Doctrine

 

Nondelegation Doctrine (no delegation)

 

 

Major Questions Doctrine—a compromise that allows infinite delegation on Minor Questions but requires a clear statement delegating such major questions to executive agencies. All delegations are allowed, but major delegations require a clear statement of Congressional intent.

 

 

“As You Wish” Judicial Deference to Congressional Acts giving vague but broad delegation (nearly infinite delegation)

 

How clear must the clear statement be under the major questions doctrine?  Must it be very specific as to details? What if in Biden v Nebraska Congress authorized "The Secretary of Education to modify, waive, cancel, or supplement any provision of the Heroes Act including with respect to major issues of economic, political, or social policy? Good enough? I don't know, but it seems to do what the Court said Congress must do to authorize rule-making with respect to issues of major political or economic significance. We shall see how this body of law develops.

Free Enterprise Fund and Seila Law

 Here is a quick summary (from Chemerinsky) on Free Enterprise, a case dealing with removal of Board members of the Public Company Accounting Oversight Board (PCAOB). 

"The members of the Board are appointed by the Securities and Exchange Commission and are removable by the Commission only for 'good cause.' The issue was whether this was constitutional in light of the fact that the president cannot remove Board members and can remove members if the Securities and Exchange Commission also only for 'good cause.' The Court held this unconstitutional and declared: 'We hold that such multilevel protection from removal is contrary to Article II's vesting of the executive power in the President....This contravenes the President's constitutional obligation to ensure faitghful execution of the laws.'"

And here is Cherminsky's executive summary of the Court's 5 to 4 holding in Seila Law:

In Seila Law LLC v. Consumer Financial Protection Bureau, the Court held in 2020 that having the Bureau led by a single director who cannot be removed by the president except for cause violated separation of powers. Chief Justice Roberts wrote the opinion for the Court...and narrowly to focus just on the unconstitutionality of limiting presidential removal in an agency headed by a single director. The Court stated: "We are now asked to extend these precedents to a new configuration: an independent agency headed by a single individual who cannot be removed by the President unless certain statutory criteria are met. We decline to take that step. While we need not and do not revisit our prior decisions allowing certain limitations on the President's removal power, there are compelling reasons not to extend those precedents to the novel context of an independent agency led by a single Director. Such an agency lacks a foundation in historical practice and clashes with constitutional structure by concentrating power in a unilateral actor insulated from Presidential control.

So, it looks like the current Court is more protective of the Constitutional command that  "The executive power shall be vested in a President of the United States of America. But Congress may still limit removal power in many cases when independence from the President is desirable. For now, at least.

 

. The Court g the...Bureau led by a single director who cannot be removed by the president except for

Biden v Nebraska (from Oyez)

 From Oyez:

Facts of the case

In 2020, then-presidential candidate Joseph Biden promised to cancel up to $10,000 of federal student loan debt per borrower. After winning the election, the Biden administration announced its intent to forgive, via executive action, $10,000 in student loans for borrowers with an annual income of less than $125,000. [The plan canceled approximately $430 Billion of federal student loan debt]

Nebraska and five other states challenged the forgiveness program, arguing that it violated the separation of powers and the Administrative Procedure Act. The district court dismissed the challenge, finding that the states lacked judicial standing to sue. The U.S. Court of Appeals for the Eighth Circuit enjoined the forgiveness program pending the appeal. 

Question

1. Do Nebraska and other states have judicial standing to challenge the student-debt relief program?

2. Does the student-debt relief program exceed the statutory authority of the U.S. Secretary of Education, or does it violate the Administrative Procedure Act?

Conclusion

6–3 decision for Nebraska
majority opinion by John G. Roberts, Jr.

The Secretary of Education does not have authority under the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act) to establish a student loan forgiveness program that will cancel roughly $430 billion in debt principal and affect nearly all borrowers. Chief Justice John Roberts authored the majority opinion of the Court.

First, the Court concluded that Missouri has standing to challenge the student-debt relief program. Article III requires a plaintiff to have suffered an injury in fact—a concrete and imminent harm to a legally protected interest, like property or money—that is fairly traceable to the challenged conduct and likely to be redressed by the lawsuit. Here, the Secretary’s plan would cost MOHELA, a nonprofit government corporation created by Missouri to participate in the student loan market, an estimated $44 million a year in fees, and the harm to MOHELA in the performance of its public function is an injury to Missouri itself.

Second, the Court determined that the HEROES Act’s authorization of the Secretary to “waive or modify” existing statutory or regulatory provisions applicable to financial assistance programs under the Education Act does not extend to canceling $430 billion of student loan principal. The Act permits the Secretary to “modify” statutory provisions but only “moderately or in minor fashion” as the term is ordinarily used. The “modifications” challenged here create a novel and fundamentally different loan forgiveness program that Congress could not have intended to permit. And the power to “waive” does not remotely resemble how such power has been used on prior occasions, where it was simply used to nullify particular legal requirements.

Third, the Court rejected the Secretary’s argument that the unprecedented nature of the COVID-19 pandemic justified the unprecedented nature of the the debt cancellation plan. Citing its recent decision in West Virginia v. EPA, the Court expressed hesitance that Congress could have intended to confer such authority on the Secretary and not retain it for itself.

Justice Amy Coney Barrett authored a concurring opinion.

Justice Elena Kagan authored a dissenting opinion, in which Justices Sonia Sotomayor and Ketanji Brown Jackson joined.

Justice Barrett's Concurrence in Biden V Nebraska

 

 

Consider a few passages from Justice Barrett's concurring opinion:

She says the major questions doctrine "serves as an interpretive tool reflecting 'common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency....The major questions doctrine situates text in context, which is how textualists, like all interpreters, approach the task at hand." (p. 5) Thoughts?

I love her hypos about the grocers instructing his clerk to buy apples for the store and, especially, the one about the parent and the babysitter (p.7-8):

Consider a parent who hires a babysitter to watch her young children over the weekend. As she walks out the door, the parent hands the babysitter her credit card and says: “Make sure the kids have fun.” Emboldened, the babysitter takes the kids on a road trip to an amusement park, where they spend two days on rollercoasters and one night in a hotel. Was the babysitter’s trip consistent with the parent’s instruction? Maybe in a literal sense, because the instruction was open-ended. But was the trip consistent with a reasonable understanding of the parent’s instruction? Highly doubtful. In the normal course, permission to spend money on fun authorizes a babysitter to take children to the local ice cream parlor or movie theater, not on a multiday excursion to an out-of-town amusement park. If a parent were willing to greenlight a trip that big, we would expect much more clarity than a general instruction to “make sure the kids have fun.”

This is a wonderful hypo demonstrating the major questions doctrine and how it helps interpret Congressional authorization for rule-making. A weekend trip with a babysitter is a major question, and to be authorized it would require a much more clear statement, such as "here is my credit card; take the kids to Six Flags for the weekend." Thoughts?

Biden v Nebraska

Notice that the student loan debt cancellation plan, although supposedly enacted to deal with the Covid emergency, was created by the Department of Education only "a few weeks before President Biden stated that the 'pandemic is over.'" (p. 5)

 

Standing Issue: 

It does not appear that any of the states had standing in their capacity as states by the loan cancellation program. However, the Court holds that Missouri has standing because MOHELA, a nonprofit corporation the Court identifies as a "public instrumentality" of the state, has suffered a concrete injury in fact because it would lose some $44 million a year in servicing fees due to so many borrowers whose student loans would be completely discharged under the cancellation plan.

The dissent makes a persuasive argument that the injuries to MOHELA may not be claimed by the state of Missouri. The standing holding is the weakest part of the Court's opinion.

The Merits

Does the Heroes Act  grant President Biden and his Secretary of Education power to cancel $430 billion of student loan principal? The Court held "that the Act allows the Secretary to 'waive or modify' existing statutory or regulatory provisions applicable to financial assistance programs under the Education Act, not to rewrite that statute from the ground up." (p. 12) As Chief Justice Roberts puts it, to "modify" permits minor or moderate adjustments, but does not "authorize 'basic and fundamental changes in the scheme' designed by Congress." (id). The Secretary's modifications created a "novel and fundamentally different loan forgiveness program" canceling $10000 of student debt for every borrower with an income below $125,000 "no matter the circumstances." (p. 14). As Chief Justice Roberts puts it, "[t]he Secretary's plan has "modified' the cited provisions only in the same sense that 'the French Revolution modified the status of the French nobility--it has abolished them and supplanted them with a new regime entirely." (p. 14-15). Nor does it help the Secretary to claim that he is simply "waiving" loan balances or the obligation to repay." (p. 15-16)

Focusing on West Virginia and the major questions doctrine, Roberts concluded that "[t]he 'economic and political significance' of the Secretary's action is staggering by any measure." (p. 21) The economic impact "amounts to nearly one-third of the Government's $1.7 trillion in annual discretionary spending."  Moreover, the "Secretary's assertion of administrative authority has 'conveniently enabled [him] to enact a program' that Congress has chosen not to enact itself." (p. 21-22) Notice that even Speaker Pelosi had stated:

“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.” Press Conference, Office of the Speaker of the House (July 28, 2021).

Chief Justice Roberts concluded: 

Imagine instead asking the enacting Congress a more pertinent question: “Can the Secretary use his powers to abolish $430 billion in student loans, completely canceling loan balances for 20 million borrowers, as a pandemic winds down to its end?” We can’t believe the answer would be yes. Congress did not unanimously pass the HEROES  Act with such power in mind.  “A decision of such magnitude  and  consequence”  on  a  matter  of  “ ‘earnest and profound debate  across  the  country’” must “res[t]  with  Congress  itself,  or  an  agency  acting pursuant  to  a  clear delegation from that representative body.” (p. 22)(Citing West Virginia)        

 

What are your thoughts?