Without answers on what constitutes a “major question,” says Prof. Cary Coglianese, “the Court’s continued invocation of the major questions doctrine cannot help but continue to appear to many observers as essentially a judicial power grab.”
In Biden v. Nebraska, the Supreme Court struck down the Biden Administration’s student loan forgiveness program.
Administrative law and regulatory policy expert Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political Science, has issued the following statement on the decision:
In ruling today on the Biden Administration’s student loan forgiveness program, the Supreme Court majority has yet again invoked what it calls a “major questions doctrine” to reach a result that restrains an administrative agency’s attempt to exercise authority in response to emergency conditions.
What remains missing from the Court’s treatment of the major questions doctrine, even after today’s decision, is any real indication of what counts as a “major” question, beyond what is in the eyes of the beholder. In the Court’s view, the relevant statutory language of “waive” and “modify” was not sufficiently clear to allow the Education Department to take action that would “alter large sections of the American economy.” But exactly how large is large? And how clear must statutory language be to be sufficiently clear? Until these questions can be answered in some principled way, the Court’s continued invocation of the major questions doctrine cannot help but continue to appear to many observers as essentially a judicial power grab, one that is executed through an unconstrained judicial veto over what the other branches of government do.
In closing out its opinion, the Court’s majority laments that some observers would deign to criticize it for “going beyond the proper role of the judiciary” in reaching a decision like it has reached today. But until the Court can itself “speak clearly” about its so-called major questions doctrine, especially if it continues to use it to justify politically charged decisions that break down along conventional ideological lines, it will continue to sow distrust in the Supreme Court as a judicial institution.
Coglianese is the Director of the Penn Program on Regulation. He has produced extensive and pathbreaking scholarship on a range of regulatory issues and has consulted with regulatory organizations around the world. He was a founding editor of the peer-reviewed journal Regulation & Governance and also created and continues to serve as the faculty advisor to the PPR’s flagship publication, The Regulatory Review.