- Federal courts have already struck down or blocked several of Biden’s regulatory efforts.
- A legal principle approved by the Supreme Court last term could block new major rules.
WASHINGTON – With Republicans in control of the House of Representatives, President Joe Biden’s chances of pushing his agenda through Congress are slim. This is a hurdle most first-term presidents face after the midterm elections.
But Biden faces another hurdle that could close a path long used by his predecessors as a backup: federal courts, including the Supreme Court, allowing federal agencies to take major policy steps without authorization from Congress. hindering the efforts of
Going it alone – with pen-and-phone tactics, as President Barack Obama described in his second term, or declaring a national emergency to pay for a border wall, as President Donald Trump did in 2019 Did – going to be a tough sell in court.
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Federal courts have already blocked Biden’s $400 billion plan to forgive student loan debt. An appeals court last month ruled against an Obama-era policy that protects undocumented immigrants brought to the United States as children. The Supreme Court in January blocked Biden’s vaccine-or-test mandate for large employers. And in June, the high court rejected the EPA’s effort to cap emissions from power plants.
Those decisions follow a years-long push by conservatives to curb the “administrative state,” arguing agencies should have less power to act unless there is explicit approval from Congress. The Supreme Court bolstered that effort in June, relying on the “major question doctrine” to decide a high-profile climate change case.
“If the administration is going to pursue many of its priorities, it will have to do so through the regulatory process, and this ‘leading question’ is going to invite challenges,” said Ian Gershengorn, a veteran Supreme Court lawyer. “Any time an agency wants to push the boundaries a little bit … that principle is going to come into play.”
Supreme Court casts doubt on ‘principal’ agency rules
Republicans held the House majority late Wednesday, more than a week after the Nov. 8 election, meaning the chamber will be at odds with the White House at almost every turn. Presidents of both parties often turn to agency regulations and executive actions when they are unable to move an agenda through Congress.
But under the doctrine of major questions, courts should be skeptical of rules if they have a major impact on the economy or are matters of great “political importance.” The meaning of those words is not entirely clear and experts are still debating how and when, precisely, courts should apply the doctrine.
For example, the principle could face a challenge if the Biden administration seeks to revive Obama-era rules on net neutrality. Under those rules, put in place and then lifted by the Federal Communications Commission, Internet providers like Verizon and Comcast would be barred from taking some sites in favor of others.
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Experts say the Securities and Exchange Commission’s proposal to require public companies to report their greenhouse gas emissions could also be challenged.
Others have questioned whether the Supreme Court’s reliance on the doctrine of leading questions will have a significant impact on how courts decide challenges to the rules.
Jennifer Mascott, a law professor at George Mason University, described it during a recent Federalist Society event as “another tool in the toolbox for people who want to find agency actions illegal” but added that it To a large extent the “textualist” approach tracks with the courts. Have been using for years to decide similar cases. Under that textual approach, judges decide mostly based on the general meaning of the law.
The legal battle over Biden’s student loan program is the latest controversy where the theory has come to the fore. US District Judge Mark Pittman relied on this in his November 10 order nullifying the loan program. Pitman wrote, “Since the program is an agency action of enormous economic and political importance, the leading-question doctrine applies.”
But the Biden administration told an appeals court on Thursday that the principle should not apply to the student loan program because, it said, Congress specifically authorized the Department of Education to waive or modify student loan program provisions in a 2003 law. was authorised.
“Agencies often take politically controversial or economically significant actions; the Supreme Court has never suggested applying the doctrine to all such cases,” administration attorneys told the US Court of Appeals for the 5th Circuit Told.
‘Key questions’ approach central to climate decision-making
In a high-profile environmental decision in June, Roe v. Wade was largely influenced by a 5-4 decision six days earlier to overturn the Supreme Court’s conservative majority, invoking key questions of principle to invalidate an Environmental Protection Agency effort to regulate power plants. did. emissions that contribute to climate change.
Writing for a 6-3 majority, Chief Justice John Roberts said the doctrine allows courts to overrule rules in “exceptional cases” when they are not expressly permitted in law.
For example, if a statute states that the Surgeon General is “authorized to make and enforce such regulations as in his judgment are necessary to prevent the spread of communicable diseases,” this does not mean that he Can stop eviction just because people kicked out. One may end up in shelters out of an apartment, where COVID-19 can spread more easily.
If the administration wants to stop the evictions, the high court indicated last year, it would have to persuade Congress to approve legislation granting it that power. The fact that such legislation is difficult to pass through a divided Congress is no excuse, some judges have said.
Associate Justice Neil Gorsuch wrote in the EPA case, “While effectively requiring a broad consensus to pass legislation, the Constitution sought to ensure that any new legislation would enjoy broad social acceptance.” In turn, he said, those laws would “benefit from input by an array of different approaches” and “prove to be stable over time.”
The court’s liberal justices say it’s a different matter. When Congress approves the broad language used in the health law, it is intentionally giving the agency broad power. This may be because lawmakers want it to be able to respond quickly to an emergency that Congress cannot see. Or it could be because Congress wants to sidestep the administration’s technical staff who have the expertise to implement the law’s broad goals.
“Over time, the administrative delegations created by Congress have helped create a modern nation,” Associate Justice Elena Kagan wrote in her dissent from the EPA’s decision, drawing attention to rules that have affected airline travel, cars and consumer products. has been made secure. “It didn’t just happen through legislation. It happened because Congress gave broad powers to administrative agencies.”
Contributing: Chris Quintana