“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.”
“Less than a year into Donald Trump’s presidency, top homeland security officials were so alarmed about escalating tensions with North Korea that they held multiple meetings to prepare for a nuclear attack on American soil, according to a forthcoming book by Miles Taylor, who was a top official in the department at the time.
In an excerpt of the book Blowback: A Warning to Save Democracy from the Next Trump that was shared with POLITICO, Taylor describes acute concerns in the Trump administration in 2017 after North Korean missile tests — including one while then-Japanese Prime Minister Shinzo Abe visited Trump at Mar-a-Lago. Trump responded to the missile tests with increasingly bellicose rhetoric.
“In the national security world, anything having to do with nuclear weapons is handled with extreme sensitivity — well planned, carefully scripted — yet we didn’t know what Trump might say at any given moment,” writes Taylor, who was intelligence and counter-threats counselor to the secretary of homeland security at the time. “One day, he threatened North Korea ‘with fire, fury and frankly power the likes of which this world has never seen before.’ He almost seemed to welcome a nuclear conflict, which terrified us.”
Taylor said then-Defense Secretary James Mattis cornered him one day after a Situation Room meeting.
“‘You all need to prepare like we’re going to war,’ he warned. Mattis was serious. DHS should assume the homeland was in mortal danger.”
The Department of Homeland Security took a step it had never taken before, according to Taylor, who is best known for writing an anonymous op-ed in The New York Times in 2018 describing a “quiet resistance” in the Trump administration “of people choosing to put country first.”
“We convened every top leader in DHS to discuss the brewing crisis,” he writes in the new book, which is set for release on July 18. “Experts walked through various scenarios of a nuclear strike on the U.S. homeland, dusted off response plans, and outlined best-case scenarios which nevertheless sounded horrifically grim. I cannot provide the details, but I walked out of those meetings genuinely worried about the safety of the country. In my view, the department was unprepared for the type of nuclear conflict Trump might foment.””
“former President Donald Trump announced that he would seek a second nonconsecutive term as president. While it’s too early to predict Trump’s chances of going all the way, the former president is the current favorite to win the Republican primary again. But nothing is assured.
First, Trump remains popular and influential among Republican voters. According to Civiqs, 80 percent of registered Republican voters have a favorable view of the former president, and only 11 percent have an unfavorable view. Admittedly, he is a little less popular than on Election Day 2020 when 91 percent viewed him favorably. But the decline has been gradual.”
“Republican voters also demonstrated their loyalty to Trump — or at least his vision for the party — when they nominated 82 percent of the nonincumbents he endorsed in contested Republican primaries for Senate, House and governor.
Granted, that isn’t as impressive as it seems. Several times, Trump endorsed candidates who were already well on their way to winning. And Trump’s endorsees did fail to win certain highly watched contests, like the primary for Georgia governor. But just as often, Trump’s endorsement seemed to give a meaningful polling boost to its recipient. For example, Ohio Senate candidate and author J.D. Vance went from trailing in the polls before Trump’s endorsement to leading in almost every survey afterward.
Trump also leads early polling of the Republican primary by a substantial margin. In most national surveys, he registers in the high 40s or low 50s, 20-30 points ahead of his closest competitor, Florida Gov. Ron DeSantis. (Though DeSantis is polling higher than he did earlier in the year.)”
“Finally, Trump leads in polls of early primary states, albeit generally by smaller margins. A poll of Iowa conducted by a pro-DeSantis group over the summer showed Trump leading DeSantis 38 percent to 17 percent. In August, a poll of New Hampshire conducted by Saint Anselm College put Trump up 50 percent to 29 percent. And most recently, Susquehanna Polling & Research found Trump at 41 percent and DeSantis at 34 percent in Nevada in late October.1”
“we’re still more than a year away from anyone casting their votes, so those numbers could change. But an analysis by my colleague Geoffrey Skelley in 2019 found that national primary polls in the first half of the year before the election are pretty predictive of who will win the nomination. Historically, from 1972 to 2016, candidates with high name recognition who polled in the 40s and 50s nationally won the nomination more than 75 percent of the time.”
“As I wrote in August 2020, there was effectively a dam preventing the president’s corrupt or political pressures from crashing through and flooding the DOJ — but, as Trump’s term stretched on, that dam began to spring more and more leaks.
Berman, in his telling, was part of the dam. And according to the Times, his book provides new details on how he faced private pressure to prosecute two Trump targets in particular: former Secretary of State John Kerry and former Obama White House Counsel Greg Craig. In both cases, Berman reveals a troubling pattern: Once he concluded no charges were merited, top Trump appointees working under the attorney general simply reassigned each case to another US Attorney’s office in the hope of a different outcome.”
“Despite Trump’s many efforts to bend the Justice Department to his whims, officials resisted many of his demands. None of his big targets — Clinton, Kerry, the Bidens, Comey, and McCabe — were prosecuted, and the Department largely did not assist him in his attempts to overturn the 2020 election result.
But if Trump should return to power after 2024, there’s no guarantee that resistance will continue. He would no longer need to constrain himself for reelection, and after January 6, he’s embittered against traditional Republican establishment forces he believes abandoned him.
So Trump and his team may well become more skilled at identifying and empowering true loyalists who really would act in Trump’s personal interests, defying law or tradition. Indeed, his recent legal peril will make that of paramount personal importance to him.
Furthermore, Trump allies have recently been floating a plan to purge many career government officials, including at the Justice Department and FBI, should he return to power, according to Axios’s Jonathan Swan. Trump has repeatedly argued that the Justice Department has been politicized against him, after four years of trying to politicize it against his enemies. So there’s every reason to expect he’d go much further in his second term — including to totally unprecedented places.”
“just one of 34 currently active national emergencies—each coming with its own special powers that the president can use until he decides to stop. The longest-running was invoked by President Jimmy Carter in response to the Iran hostage crisis (which ended in 1981, though the “emergency” never did). Other emergencies authorized by Presidents Bill Clinton, George W. Bush, Barack Obama, and Donald Trump are still humming along too, many with no obvious end in sight.
Congress can respond to presidential emergency declarations by disapproving of them after the fact, which it occasionally does.”
“But doing so requires a supermajority of both chambers and, generally, Congress can’t be persuaded to get off its collective duff.”
“Under a bill the two senators reintroduced..all presidential emergency declarations would expire after 72 hours unless Congress votes to allow them to continue.”
“the bill is undermined by the fact that Paul and Wyden propose to exempt some presidential powers, such as those granted by the International Emergency Economic Powers Act (IEEPA), which allows presidents to impose sanctions on foreign officials and businesses deemed a threat to American national security. The powers granted by the IEEPA form the basis of many of the 34 ongoing national emergencies”
“The outgoing administration will continue to hold power within administrative agencies long after noon on January 20, 2021. Even worse: In many cases, these office-holders are, at least in theory, not subject to at-will removal by the president because federal law provides that they can be removed only for “good cause.” For example, members of the Federal Reserve Board, including newly appointed member Waller, enjoy this statutory protection from removal—with the right to seek judicial review of the legal sufficiency of the president’s reasons if he attempts to remove them from office. By confirming a slew of last-minute Trump appointments to key posts within the administrative bureaucracy, Trump’s imprint on the federal government could remain long after he and Melania have decamped from the White House.”
“Biden could adopt a theory advanced by conservative judges and legal academics, and long championed by The Federalist Society: The unitary executive theory. Under this theory, President Biden would be constitutionally empowered to remove executive-branch personnel who are opposed to his administration’s policies and programs whether or not they hold a fixed term of office or enjoy statutory good-cause protection against removal.
The Federalist Society, a conservative legal organization that has played an integral role in Trump’s judicial selection process, has long advocated the unitary executive theory. Under this theory, the president must be able to exercise direct forms of control over any and all officers holding policymaking posts within the federal executive branch—including, for example, a sitting member of the Federal Reserve Board of Governors.
Trump-appointed federal judges, such as Brett Kavanaugh and Neomi Rao, have written in both academic articles and judicial opinions about the central importance of the unitary executive theory to the proper enforcement of the separation of powers. Both have argued, strenuously, that the federal courts must interpret “good cause” removal protections very narrowly so that the president has the ability to fire subordinates within the executive branch in whom he lacks confidence.
Under this theory, it’s unthinkable that an entity charged with enforcing federal laws, such as the FCC, could be rendered largely unaccountable to the president.”
“Many of these nominees hold odd, even bizarre, policy positions that are clearly opposed to the Biden administration’s policies. Judy Shelton, for example, a Trump nominee to the Federal Reserve Board, has publicly advocated a return to the gold standard. If the Federal Reserve Board were to embrace her position, it would hobble the agency’s ability to use monetary policy to help limit the effect of shocks to the national and global financial systems. Shelton’s nomination currently remains pending before the Senate; despite failing to secure a majority vote last month (with two GOP senators absent due to Covid-19), Senator McConnell has preserved his ability to call up her nomination again before President-elect Biden is inaugurated.
If Republicans retain control of the Senate after the Georgia special elections, Biden should offer McConnell a choice: Either swiftly confirm a Biden appointee to the fifth seat on the FCC, or President Biden will remove Simington from the commission. Biden should adopt exactly the same negotiating tactic with respect to other federal independent agencies where the presence of lame-duck Trump holdovers, coupled with the Senate’s refusal to timely confirm the president’s nominees, would leave Biden without the ability to perform his constitutional duty to “take Care that the Laws be faithfully executed.”
Indeed, it may well be that the Biden administration’s only practical option to counter these unprecedented midnight appointments will be to fire these appointees after he takes office. And, when the newly unemployed federal officers seek judicial review of Biden’s action, the administration should quote the Federalist Society judges back to themselves in the legal briefs. In fact, were Biden to signal that he will remove illegitimate lame-duck appointees after taking office, it might persuade McConnell to cease and desist trying to saddle the Biden administration with a federal bureaucracy committed to seeing his administration fail.”
“Trying to booby-trap administrative agencies for an incoming administration is inconsistent with a meaningful commitment to the peaceful transfer of power.
To be sure, taking this step would constitute a further escalation of the confirmation wars and represent yet another step toward creating an imperial presidency. Firing a GOP member of the FCC would, like the Senate’s behavior, break an existing convention and also escalate of the battle between the Senate and the president, in periods of divided government, over control of independent regulatory agencies.
On the other hand, though, it was the Senate—not Biden—that started this fight.
Moreover, for independent regulatory bodies that feature multimember heads and partisan balance requirements for the membership, Biden simply has no effective workaround other than dismissing GOP members if the Senate will not consider his nominees with the same alacrity that they have considered Trump’s lame-duck picks. The Federal Vacancies Reform Act does not, for instance, permit a president to name “acting” voting members to independent agencies. Thus, for administrative bodies like the FCC, the Securities and Exchange Commission and the Equal Employment Opportunity Commission, which have partisan balance requirements and feature a multimember head, the only way for the president to establish control over the agency, if the Senate will not speedily consider and confirm his nominees, would be to remove opposition party members from it.
Further expanding the president’s unilateral authority is unfortunate collateral damage—but if a choice must be made between having an agency operating free and clear of meaningful presidential supervision and further accelerating the devolution of the separation of powers toward an imperial presidency, unaccountable government power in the hands of a rogue agency presents the greater of the two evils.
McConnell’s effort to do to federal agencies what he has systematically done to the federal courts can work only if Biden lets it work.”
“Education Secretary Betsy DeVos submitted her resignation Thursday, citing the president’s role in the riot on Capitol Hill.
“There is no mistaking the impact your rhetoric had on the situation, and it is the inflection point for me,” she wrote in a letter to President Trump. The behavior of the “violent protestors overrunning the U.S. Capitol” was “unconscionable,” she wrote.
“Impressionable children are watching all of this, and they are learning from us. I believe we each have a moral obligation to exercise good judgment and model the behavior we hope they would emulate,” she wrote. “They must know from us that America is greater than what transpired yesterday.”
She said her resignation is effective Friday. The resignation, she said was “in support of the oath I took to our Constitution, our people, and our freedoms.””
“There’s a reason we expect presidents of the United States to say that they support the peaceful transfer of power.
Donald Trump has never committed to it, and we saw the bitter fruit on Wednesday afternoon when, shockingly, pro-Trump rioters stormed the U.S. Capitol and disrupted the counting of electors.”
“The rioters themselves bear ultimate responsibility for their acts, but Trump egged them on.
He fed them poisonous lies about the election, including lunatic conspiracy theories worthy of QAnon that, if true, would justify violent revolution.
He encouraged them to come to Washington and said they wouldn’t stand for his “landslide” victory getting taken away.
He whipped them up on Wednesday with one of his typically high-octane speeches about how the election was stolen from them, and urged them to march on the Capitol to give “weak” Republicans the “pride and boldness they need to take back out country.”
When the mob overwhelmed security and made its way on the Senate and House floors, sending Vice President Pence and lawmakers fleeing, Trump tweeted about how he’d been wronged by Pence’s entirely correct view that he lacks the power as vice president to unilaterally declare him the victor.
It was only a couple of hours later that Trump released a pro forma video calling on his supporters to go home, but, of course, repeating all his same attacks on the integrity of American democracy that motivated the rioters in the first place.
Trump has been engaged in a grotesque, but utterly characteristic, display of failed leadership since he insisted late on election night that he’d won big.”
“I don’t entirely understand the polls-were-wrong storyline. This year was definitely a little weird, given that the vote share margins were often fairly far off from the polls (including in some high-profile examples such as Wisconsin and Florida). But at the same time, a high percentage of states (likely 48 out of 50) were “called” correctly, as was the overall Electoral College and popular vote winner (Biden). And that’s usually how polls are judged: Did they identify the right winner?”
“the margins by which the polls missed — underestimating President Trump by what will likely end up being 3 to 4 percentage points in national and swing state polls — is actually pretty normal by historical standards.”
“However, there are nevertheless reasons to be concerned about the polls going forward, especially if it’s hard to get a truly representative sample of people on the phone.”
“Voters and the media need to recalibrate their expectations around polls — not necessarily because anything’s changed, but because those expectations demanded an unrealistic level of precision — while simultaneously resisting the urge to “throw all the polls out.””