“In the less than three years since President Joe Biden took office, the Supreme Court has effectively seized control over federal housing policy, decided which workers must be vaccinated against Covid-19, stripped the EPA of much of its power to fight climate change, and rewritten a federal law permitting the secretary of education to modify or forgive student loans.
In each of these decisions, the Court relied on something known as the “major questions doctrine,” which allows the Court to effectively veto any action by a federal agency that five justices deem to be too economically significant or too politically controversial.
This major questions doctrine, at least as it is understood by the Court’s current majority, emerged almost from thin air in the past several years. And it has been wielded almost exclusively by Republican-appointed justices to invalidate policies created by a Democratic administration. This doctrine is mentioned nowhere in the Constitution. Nor is it mentioned in any federal statute. It appears to have been completely made up by justices who want to wield outsize control over federal policy.
And the implications of this doctrine are breathtaking. In practice, the major questions doctrine makes the Supreme Court the final word on any policy question that Congress has delegated to an executive branch agency — effectively giving the unelected justices the power to override both elected branches of the federal government.
Consider, for example, the Court’s recent decision in Biden v. Nebraska, which invalidated a Biden administration program that would have forgiven up to $20,000 in debt for millions of student loan borrowers. The Court did so despite a federal law known as the Heroes Act, which permits the secretary of education to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs … as the Secretary deems necessary in connection with a war or other military operation or national emergency.”
So Congress explicitly granted the executive branch the power to alter or forgive student loan obligations during a national crisis like the Covid-19 pandemic. But six justices, the ones appointed by Republican presidents, decided that they knew better than both Congress and the executive.
The premise of the major questions doctrine is that courts should cast an unusually skeptical eye on federal agencies that push out ambitious new policies. As the Court said in a 2014 opinion, “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”
In practice, however, this doctrine functions more as a freewheeling judicial veto than as a principled check on agencies. The Heroes Act, after all, is crystal clear in giving Education Secretary Miguel Cardona — and not the Supreme Court — final say over which loans are forgiven during a national emergency.”
“the Supreme Court handed down a brief, 5-4 decision that effectively places Drew Tipton, a Trump-appointed federal trial judge in Texas, in charge of many of Immigration and Customs Enforcement’s (ICE) decisions about which immigrants to target.
The decision was largely along party lines, except that Justice Amy Coney Barrett joined the Court’s three Democratic appointees.
The decision in United States v. Texas is temporary, but the upshot of this decision is that Tipton will effectively wield much of Homeland Security Secretary Alejandro Mayorkas’s authority over how ICE officers prioritize their time for as much as an entire year — and that’s assuming that the Biden administration ultimately prevails when the Court reconsiders this case next winter.
At issue in this case is a perfectly standard decision Mayorkas made last September. Federal law provides that the secretary of homeland security “shall be responsible” for “establishing national immigration enforcement policies and priorities.” Pursuant to this authority, Mayorkas issued a memo to ICE’s acting director, informing him that the agency should prioritize enforcement efforts against undocumented or otherwise removable immigrants who “pose a threat to national security, public safety, and border security and thus threaten America’s well-being.”
Then-secretaries of homeland security issued similar memos setting enforcement priorities in 2000, 2005, 2010, 2011, 2014, and 2017.
Not long after Mayorkas handed down his memo, however, the Republican attorneys general of Texas and Louisiana went to Tipton, a Trump judge with a history of handing down legally dubious decisions halting Biden administration immigration policies, asking Tipton to invalidate Mayorkas’s memo. Tipton obliged, and an especially conservative panel of the United States Court of Appeals for the Fifth Circuit allowed Tipton’s order to remain in effect.
DOJ asked the Supreme Court to stay Tipton’s decision, temporarily restoring an elected administration’s control over federal law enforcement while this case proceeds. But the Court just refused. And it did so without explanation.”
“Now the West Virginia plaintiffs raise several different legal arguments against the nonexistent Clean Power Plan, several of which could permanently hobble the federal government’s power to regulate if adopted by the Court.
A brief filed by several senior red-state officials, for example, rests heavily on the “major questions” doctrine, a legal doctrine that is currently fashionable among Republican judges but that was also invented entirely by judges and has no basis in any statute or provision of the Constitution.
The major questions doctrine claims that there are fairly strict limits on federal agencies’ power to hand down particularly impactful regulations. As the Court most recently stated in NFIB v. OSHA (2022), “we expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” And several of the plaintiffs in West Virginia argue that the Clean Air Act isn’t sufficiently clear to justify a regulation like the Clean Power Plan.
One problem with this major questions doctrine is that it is vague. The Court has never explained what constitutes a matter of “vast economic and political significance,” or just how “clearly” Congress must “speak” to permit an agency to issue significant regulations. So, in practice, the major questions doctrine largely just functions as a veto power, allowing judges to justify blocking nearly any regulation they do not like. If a judge doesn’t like a particular regulation, they can just claim that it is too big.”
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“Other briefs in the West Virginia case suggest that the Clean Power Plan violates the “nondelegation doctrine,” another judge-created doctrine that limits Congress’s power to delegate the power to issue binding regulations to federal agencies. This doctrine is even more vague than the major questions doctrine, and even more capable of being applied selectively to strike down regulations that a particular panel of judges do not like.
As Justice Neil Gorsuch described nondelegation in 2019, a federal law authorizing an agency to regulate must be “‘sufficiently definite and precise to enable Congress, the courts, and the public to ascertain whether Congress’s guidance has been followed.” How “precise” must the law be? That’s up to judges to decide.
Notably because this doctrine outright forbids Congress from delegating certain powers to an agency, a Supreme Court decision that struck down the Clean Power Plan on nondelegation grounds could permanently strip Congress of its power to authorize the EPA to issue major regulations in the future. Indeed, depending on how broadly the Supreme Court worded such a decision, it could impose drastic new limits on every single federal agency.”
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“the issues at stake in West Virginia can be summarized fairly concisely. It is a case about a regulation that does not exist, that never took effect, and that would have imposed obligations on the energy industry that it would have met anyway. It also involves two legal doctrines that are mentioned nowhere in the Constitution, and that have no basis in any federal statute.
And yet, West Virginia could wind up permanently hobbling the government’s ability to fight climate change.”
“If Congress fails to enshrine key climate policies as federal laws, Biden’s Plan B includes executive orders and major regulations from the Environmental Protection Agency, the New York Times reported.
The problem is that executive actions aren’t an ideal substitute for federal laws, and may last only as long as Biden’s presidency. EPA regulation also “tends to lag [behind] the technological realities,” meaning it may only modestly nudge the economy in a new direction, Jesse Jenkins, an environmental engineering professor at Princeton University, told Vox. It’s also vulnerable to intervention by the Supreme Court.”
“The premise of the unitary executive doctrine is that all officials who execute federal law must be accountable to the president. That means that the president typically must be able to fire agency leaders and other top government officials at will — a view that the Supreme Court upheld in 2020.”
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“The Court’s previous decisions..have some language suggesting that any action taken by an agency led by a director who is unconstitutionally shielded from presidential accountability is void — and that’s certainly how the plaintiffs in Collins read those decisions. They argued that literally every action taken by the FHFA since its creation 13 years ago must be declared invalid.
Had the Supreme Court agreed with this approach, it would have meant that all of the hundreds of billions spent to prop up Fannie and Freddie were spent illegally. It’s hard to even imagine how to unravel these transactions, and the process of doing so could have sparked another housing crisis similar to the catastrophic 2008 meltdown.
In any event, when confronted with the possibility of being responsible for one of the greatest financial crises in modern American history, Justice Alito blinked, as did most of his colleagues. Collins did not lead to an apocalyptic event; instead, it will stand as a warning of what can go wrong if the Court is too cavalier about remaking our constitutional system in a conservative image.”
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“Though the head of the FHFA must be removable at will by the president, Alito argues in his opinion that “there was no constitutional defect in the statutorily prescribed method of appointment to that office” — that is, an FHFA director who is nominated by the president and confirmed by the Senate may still exercise executive power. Their previous actions are not void.
It’s as good a reason as any not to light the nation’s economy on fire.”
“That the Department of Justice sought the private phone data of US lawmakers without their knowledge is remarkable and disturbing. While details are still emerging, the exchange sets a concerning precedent about the ability of the executive branch to obtain the digital records of lawmakers as well as tech companies’ roles in complying with such orders.”
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“The DOJ’s inspector general, Michael Horowitz, announced on Friday that he will start a review of the agency’s actions under the Trump administration and will look at “whether any such uses, or the investigations, were based upon improper considerations.””
“While Congress or military leaders are involved in any other decision to use of military force, the president can legally order a nuclear strike on his own. “Congress doesn’t have any role in this at the moment,” says Alex Wellerstein, a historian of science at the Stevens Institute of Technology. “They’re not expected to be consulted.”
Unitary presidential control of nuclear weapons dates from the immediate aftermath of the Hiroshima and Nagasaki bombings, and the practice has been cemented over time. This is partly a product of the general shift toward a stronger executive, and partly just an issue of timing: If the missiles are coming, you can’t call up Congress.”
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“”The system we have is very much a product of the 1940s, with some modifications in the 1950s and the 1960s,” Wellerstein says. “And we don’t live in the 1940s, ’50s, or ’60s. So I think we should feel free to question whether the system we have now is the ideal system for our present day.””
“the justices largely focused on the question of whether the president may remove the CFPB’s sitting director at will.
A majority of the Court agreed that a president may remove the CFPB director. In the short term, that decision could benefit presumptive Democratic presidential nominee Joe Biden, who will be able to remove Trump’s CFPB director right away if Biden becomes president. In the long term, however, the decision could potentially empower the president to manipulate the political process.”
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“So the immediate upshot of Seila Law is that the CFPB survives this attempt to strike it down in its entirety, and Democrats gain the power to remove Trump’s CFPB director if Biden is sworn in next year. But it is unlikely that we will know the full significance of Seila Law until the Court hears a new case testing its meaning.”
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“Most independent agencies — including the Fed and the FCC — are led by a multi-member board.
The CFPB is unusual, though not entirely unique, in that it is led by a single director who could not be removed at will by the president. This unusual leadership structure, according to Roberts’s majority opinion, is not allowed. According to Roberts, the Constitution “scrupulously avoids concentrating power in the hands of any single individual.””
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“there are very good reasons why we do not want some agencies to be fully subject to presidential authority. If the president can threaten to fire Fed governors or FCC commissioners, those agencies might try to influence the result of an election in illegitimate ways.
And while much of Roberts’s decision focused on the CFPB’s single-director structure, it is far from clear, after Seila Law, whether multi-member agencies like the FCC or the Fed may remain independent.”