Kagan Decries Use Of Right-Wing 'Doctrine' In Student Loan Decision As 'Danger To A Democratic Order'

The majority — "as is becoming the norm," Justice Elena Kagan narrates in her dissent — relies heavily on the major questions "doctrine," a theory in vogue in right-wing legal circles. It dictates that when executive branch agencies take action of major "economic and political significance," they lose the usual judicial deference they enjoy. That standard of significance is wholly in the eye of the beholder — an amorphousness the majority has continually taken advantage of. That has usually translated, in the hands of this conservative Court, into various Biden administration actions meeting their doom.

So the Supreme Court is making decisions based on "theories" in vogue in right wing legal circles. Not a surprise at all. 

it continues to shift enormous power away from Congress and the executive branch to itself.

Interesting take, at least she didn't pull the race card on this.  All this ruling really did was show that the Administration over-reached again and the power to forgive debt is with Congress and not the White House.  

But if she's really all that fed up with SCOTUS she could always resign.  Then President Biden could nominate another to take her place.

The majority — "as is becoming the norm," Justice Elena Kagan narrates in her dissent — relies heavily on the major questions "doctrine," a theory in vogue in right-wing legal circles.

Where is the "major questions doctrine" in the Constitution ? 

Do you even know what the "major questions doctrine" is?  It would appear not as no, it's not in the Constitution.

Congress frequently delegates authority to agencies to 
regulate particular aspects of society, in general or broad 
terms. However, in a number of decisions, the Supreme 
Court has declared that if an agency seeks to decide an 
issue of major national significance, its action must be 
supported by clear congressional authorization. Courts and
commentators have referred to this doctrine as the major 
questions doctrine (or major rules doctrine). The Supreme 
Court never used that term in a majority opinion prior to 
2022, but the doctrine has recently become more prominent. The Major Questions Doctrine (congress.gov)

I bolded an important piece of this.  As I said, this ruling basically stated that Congress has the power to forgive debt,  the Administration does not and has not been granted that power in this case by Congress.  Even Pelosi stated that back in 2021.

House Speaker Nancy Pelosi suggested on Wednesday that people who believe President Joe Biden can forgive student debt on his own are misinformed.

“The president can’t do it,” Pelosi said, at a press briefing. “That’s not even a discussion.”

Pelosi said any student debt forgiveness would have to be carried out by Congress.

Pelosi says Biden doesn't have authority to cancel student debt (cnbc.com)

It would appear not as no, it's not in the Constitution.

I think I said that first. 

I phrased that poorly.  What I meant to say was 

   It would appear that you do not know what it is due to the question you ask, and no it's not in the Constitution.

I put up a link to a a document from congress.gov that explains what the Major Questions Doctrine is.  And as I stated, all this ruling does is return the power of the purse to Congress.  

Arguably, the conservative-supermajority Supreme Court’s greatest hits are still to come. Armed with the “major questions” doctrine, it may well strike down a bevy of environmental, health, and public safety laws.

God knows what it will do on the Second Amendment. And, lest anyone think that overturning Roe v. Wade was its final statement on women’s rights, conservative organizations are preparing challenges to the constitutional rights to contraception and even no-fault divorce. Because if there’s one thing that America needs, it’s more w

omen trapped in abusive marriages and forced to have more babies. I guess that’s two things.
Of course, it’s quite justifiable to be angry at religious and social conservatives, especially if you’re queer, nowhite, or female, or if you care about someone who is. But you gotta hand it to these theocrats: they outplayed us. They compromised, took the long view, turned out their base time and time again, and swung the Senate and thus the courts. Now it’s our turn.

rollingstone

I stopped reading the Rolling Stone years ago.  Glad to see they are still doing what they do best, pushing fear to help the next election cycle.  As for their predictions, guess we'll just have to wait and see.  But their track record is not one to be proud of IMO.

Love Rolling Stone. 

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LEFT BIAS

These media sources are moderately to strongly biased toward liberal causes through story selection and/or political affiliation.  They may utilize strong loaded words (wording that attempts to influence an audience by appealing to emotion or stereotypes), publish misleading reports, and omit information that may damage liberal causes. Some sources in this category may be untrustworthy.

How much did their lies in the UNC Jackie rape case cost them?

cue the idiotic Fox deflection in 3..2..1

She won’t know, they lost $4.65M in two lawsuits.

Kagan has it ass backwards.   The doctrine takes powers from the court and the executive and returns it to congress, the most democratically responsive branch of government. Kagan would like the president to have almost unlimited power to unilaterally order whatever he wants based on the most tenous relationship to a law congress actually passed.

look what happened here

1.  The speaker of the house says the president doesn’t have the power to unilaterally order  loan forgiveness.

2.  Biden does it anyway.

3.  Congress passes a bill making clear congress rejects the presidents claimed power to do this. Biden vetoes the bill. 

Kagan thinks that’s fine. It turns the legislative power on its head, granting it to the president and forcing congress to stop it was 2/3 majorities.

The Curious Rise of a Supreme Court Doctrine That Threatens Biden’s Agenda

The “major questions doctrine,” promoted by conservative commentators, is of recent vintage but has enormous power and may doom student loan relief and other programs.

By Adam Liptak
Mar 06, 2023 06:39 PM4 min. readView original

WASHINGTON — It has been only eight months since the Supreme Court first invoked the “major questions doctrine” by name in a majority opinion, using it to limit the Environmental Protection Agency’s power to address climate change. Last week, the court seemed poised to use it again, to kill the Biden administration’s plan to cancel more than $400 billion in student loans. In dissent in the climate case, Justice Elena Kagan wrote that the majority had engaged in a sleight of hand.

When ordinary legal principles fail to thwart disfavored programs, she wrote, “special canons like the ‘major questions doctrine’ magically appear.” The idea behind the major questions doctrine is that Congress must speak particularly clearly when it authorizes the executive branch to take on matters of political or economic significance. But what makes that idea a doctrine?

A timely new study traces the rapid and curious rise of the major questions doctrine, spurred by conservative scholars and commentators and driven by hostility to administrative agencies.

“The phrase was used just once by any federal judge before 2017, and in only five federal decisions — at any level of court — before 2020,” Allison Orr Larsen, a law professor at William & Mary, wrote in the new study, “Becoming a Doctrine.”

But she added that there had been a lot of other activity aimed at elevating a theory into something concrete and unassailable: a doctrine.

“The word ‘doctrine’ to describe the major questions concept was first used by law professors and then bandied about on blogs, quickly picked up by advocacy groups on Twitter and used as a rallying cry in opinion pieces and programming by those seeking to challenge the administrative state,” she wrote. “In 2016 — long before it was anointed a ‘doctrine’ by the Supreme Court — the ‘major questions doctrine’ was featured by name in the annual Federalist Society conference,” she wrote, referring to the conservative legal group.
The turning point came in 2017, when Justice Brett M. Kavanaugh, then a judge on the U.S. Court of Appeals for the District of Columbia Circuit, used the term in a dissent. “That moment,” Professor Larsen wrote, “seems to have changed the game.”

At Justice Kavanaugh’s Supreme Court confirmation hearings the next year, Senator Amy Klobuchar, Democrat of Minnesota, asked him about the doctrine, calling it “something else that you came up with.”

He responded that the “major questions doctrine is rooted in Supreme Court precedent.” Still, in his 2017 dissent, Justice Kavanaugh conceded that “determining whether a rule constitutes a major rule sometimes has a bit of a ‘know it when you see it’ quality.”

During his confirmation hearing, Justice Brett M. Kavanaugh stated that the “major questions doctrine” is rooted in Supreme Court precedent.”Credit...Erin Schaff/The New York Times
In his majority opinion in the climate case, Chief Justice John G. Roberts Jr. wrote that the court’s use of the term was unexceptional. “It took hold,” he wrote, “because it refers to an identifiable body of law that has developed over a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.” It is true that earlier decisions, notably one from 2000 about whether the Food and Drug Administration could regulate tobacco, employed that framework. Similarly, in 2015, in his second rescue of the Affordable Care Act, Chief Justice Roberts, quoting the tobacco case, wrote that Congress would not have given the Internal Revenue Service implicit power to decide “a question of deep ‘economic and political significance.’” Elevating an idea into a doctrine is particularly attractive to conservative judges, Professor Larsen said in an interview, as they “don’t want to be accused of activism or of making it up.”

The supporters of another contested concept, that of giving state legislatures all but unfettered power to conduct federal elections, like to call it the “independent state legislature doctrine.” But that effort to create a new doctrine has met with substantial resistance.

Scholars have raised objections to the major questions approach, saying it had changed the rules in the middle of the game and had, in any event, placed unrealistic burdens on Congress.
“When Congress drafted the many statutes that delegate authority to administrative agencies, it did so without thinking that it had to specify every possible major form of regulation that an agency might undertake,” Daniel T. Deacon and Leah M. Litman, law professors at the University of Michigan, wrote in “The New Major Questions Doctrine,” to be published in The Virginia Law Review. Even if lawmakers had anticipated the new doctrine, the two scholars added, “it is unrealistic and unlikely that Congress could, at the time of drafting, both foresee and spell out every possible form of regulation that would be perceived as major at some point in the future.”

The theory’s requirement that Congress speak clearly when the issue is of major political significance, they added, allows after-the-fact gamesmanship. “In politically polarized times,” they wrote, “this aspect of the major questions doctrine allows political parties and movements to make an issue ‘major’ through generating controversy.” Calling something a doctrine has consequences, Professor Larsen said in an interview. “You study it for the bar exam,” she said. “It gets its own section on the syllabus.”

But, she added, the mechanical application of a “doctrine” can be a substitute for reasoned judgment. “The nature of the shorthand,” she said, “eliminates nuance.”

Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002. @adamliptak • Facebook
A version of this article appears in print on , Section

Conservatives are fond of "theories" that allow them to decide cases in whatever way they want.  They are supposed to be originalists who follow the text of the Constitution. Where is the "major questions doctrine' in the Constitution ? 

Supreme Court Justice Elena Kagan’s Remarkable Dissent
Her dissent on the student loan decision is revealing.
By Jamelle Bouie

Jul 01, 2023 01:34 PM
5 min. read
View original

You have probably already heard about the Supreme Court’s decision in Biden v. Nebraska, where a 6-to-3 majority of the court — split along partisan lines — struck down President Biden’s student debt relief plan.
After blowing past an obvious problem of standing — the plaintiff, the state of Missouri, could not establish any injury to itself and had to sue on behalf of a state-created debt servicing company — Chief Justice John Roberts rejected the administration’s argument that the HEROES Act allowed the president to pursue large-scale debt relief.
Roberts did not base his conclusion on the text of the law. Instead, he used the “major questions doctrine,” which says that the court can overrule executive agencies if it believes their actions implicate questions of major political and economic significance that, in its view, require clear congressional direction. For this court, Biden’s student debt relief program was simply too large and too consequential to be allowed to stand.

(I’d be remiss if I did not point out that the main effect of this doctrine — meant to restore lawmaking authority to Congress — is to hand immense discretionary power to unelected judges.)

But I don’t want to discuss Roberts’s majority opinion as much as I do Justice Elena Kagan’s dissent. Kagan wrote something unusual. She didn’t just challenge the chief justice’s reasoning, she questioned whether the court’s decision was even constitutional.

“From the first page to the last, today’s opinion departs from the demands of judicial restraint,” Kagan wrote. “At the behest of a party that has suffered no injury, the majority decides a cont

sted public policy issue properly belonging to the politically accountable branches and the people they represent.”
She continued: “That is a major problem not just for governance, but for democracy too. Congress is of course a democratic institution; it responds, even if imperfectly, to the preferences of American voters. And agency officials, though not themselves elected, serve a President with the broadest of all political constituencies. But this Court? It is, by design, as detached as possible from the body politic. That is why the Court is supposed to stick to its business — to decide only cases and controversies, and to stay away from making this Nation’s policy about subjects like student-loan relief.”

The court, Kagan concluded, “exercises authority it does not have. It violates the Constitution.”

It’s a remarkable statement. To say that the Supreme Court can violate the Constitution is to reject the idea that the court is somehow outside the constitutional system. It is to remind the public that the court is as bound by the Constitution as the other branches, which is to say that it is subject to the same “checks and balances” as the legislature and the executive.

Kagan’s dissent, in other words, is a call for accountability. For Congress, especially, to exercise its authority to discipline the court when it oversteps its bounds.

 Democrats may or may not get this particular message. But John Roberts heard it loud and clear. “It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary,” he wrote in his opinion. “It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.” For Roberts, the problem isn’t that the Supreme Court is overstepping its bounds, it’s that one of its justices has decided that she’s had enough. 

Lets imagine for a second that Elena Kagan, not John Roberts, was Chief Justice of the Supreme Court, and the liberals held the majority. Does anyone think we would have the decision we have today? 

She would be no less "correct" that Roberts, and probably more so.  The Supreme Court is no longer remotely deciding cases on the merits as found in the Constitution, they are making national policy. 

Well I guess if that was true and liberals held the majority this would have been passed in favor of the Administration.  And IMO the downstream ramifications for this would have lead to more inflation and runaway spending by the Administration and faster growth of the National Debt due to increased borrowing.

The Higher Education Relief Opportunities For Students (HEROES) Act of 2003, allowed the Administration to grant relief to recipients of student loans  in connection with our "Wars on Terrorism" war or other national emergency. It allowed waiving of federal student loans for three categories of individuals: active-duty military or National Guard officials, those who reside or are employed in a declared disaster area, or those who have suffered direct economic hardship as a result of wars, military operations, or national emergencies.

That is not what the administration tried to do.

Public Law No: 108-76 (08/18/2003)

Higher Education Relief Opportunities for Students Act of 2003 - Authorizes the Secretary of Education to waive or modify any requirement or regulation applicable to the student financial assistance programs under title IV of the Higher Education Act of 1965 as deemed necessary with respect to an affected individual who: (1) is serving on active duty during a war or other military operation or national emergency; (2) is performing qualifying National Guard duty during a war, operation, or emergency; (3) resides or is employed in an area that is declared a disaster area by any Federal, State, or local official in connection with a national emergency; or (4) suffered direct economic hardship as a direct result of a war or other military operation or national emergency.

Authorizes the Secretary to grant such a waiver to ensure that: (1) affected individuals who have received student financial assistance (affected recipients) are not placed in a worse position financially in relation to that financial assistance because of their status; (2) administrative requirements placed on affected recipients are minimized to ease the burden on them and avoid inadvertent, technical violations or defaults; (3) calculations of income or overpayment amounts required to be returned may be modified in light of the special circumstances; and (4) institutions of higher education, eligible lenders, guaranty agencies, and other participating entities that are located in declared disaster areas in connection with a national emergency, or whose operations are significantly affected by such a disaster, may be granted temporary relief from requirements that are rendered infeasible or unreasonable by the emergency, including due diligence requirements and reporting deadlines.

Declares the sense of Congress that: (1) all institutions offering postsecondary education should provide a full refund (or credit) of tuition and related fees to students who are affected individuals for that portion of a period of instruction such a student was unable to complete, or for which such individual did not receive academic credit, because he or she was called up for active duty or active service; and (2) if affected individuals withdraw from a course of study as a result of such active duty or active service, such institutions should make every effort to minimize deferral of enrollment or reapplication requirements and should provide the greatest flexibility possible with administrative deadlines related to those applications.

I agree with what you posted, but to be honest Covid was declared a national emergency on March 13, 2020 by President Biden.

However I always disagreed with what the WH was trying to do with their student loan forgiveness plan and you show exactly where the issue lies.  They were not going to determine who was placed in a worse position financially but were planning a blanket forgiveness plan.  

suffered direct economic hardship as a direct result of a war or other military operation or national emergency.

who declares a national emergency ?

obviously the theory of the case is that student debt is a national emergency. who's to say it is any less of an emergency than "the war on terror" ? 

No, actually it was Covid that was the national emergency.  And there were people who lost their jobs due to Covid so those are the people who should be helped by this.  But I do not agree that a blanket forgiveness plan was the best approach here.  Even Pelosi said that the Biden Administration did not have the authority to do what they tried to do.  

I know this is gonna shock you   (/s) but I do agree with the SCOTUS ruling on this.  It returns the power of the purse to Congress which is where it belongs.

Joe and Nancy knew it 2021 that this wasn't legal but Joe let the progressives push him into a corner and make false promises.

For the purposes of the HEROES Act, the President has to declare the national emergency.  

What national emergency are all of these households earning up to $250K facing?