Supreme Court, Bidens
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| The Supreme Court heard a debate last week about President Biden's student debt forgiveness plan. Haiyun Jiang |
WITHINBUCKS — It has been just eight months since the Supreme Court first named the Critical Issues Principle in a majority opinion to limit the Environmental Protection Agency's authority to deal with climate change. Last week, the courts appeared poised to use it again to nullify the Biden administration's plan to cancel more than $400 billion in student loans.
In a climate change case challenge, Justice Elena Kagan wrote that the majority involved sleight of hand. If ordinary jurisprudence cannot deter unfavorable programs, she writes:
The idea behind the leading question principle is that Congress must speak particularly clearly when it authorizes the executive branch to undertake issues of political or economic importance. But what makes the idea so dogmatic?
A timely new study traces the rapid and bizarre rise of a dominant interrogation doctrine, fueled by conservative academics and pundits and driven by hostility to the executive branch.
But she added that there are many other activities aimed at elevating this theory to something concrete and impregnable: dogma.
Her turning point came in 2017 when Judge Brett M. Kavanaugh, then a District of Columbia Court of Appeals judge, used the term in her dissenting opinion. “In that moment,” writes Professor Larsen.
The following year, at Justice Kavanaugh's Supreme Court confirmation hearing, Minnesota Democratic Senator Amy Klobuchar asked him about the doctrine, calling it "something else you came up with."
He replied that "the principles of the main issues are rooted in Supreme Court precedents." I admit that I can be a bit of an "all-seeing" nature when judging. ”
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| Justice Brett M. Kavanaugh said at the confirmation hearing that the "leading issue doctrine" is rooted in Supreme Court precedent. Erin Schaff |
Chief Justice John G. Roberts Jr. wrote in the majority opinion on climate that the court's use of the term was not exceptional. accept. "
It is true that previous decisions, notably his 2000 decision on whether the Food and Drug Administration can regulate tobacco, have adopted that framework. Similarly, in 2015, in his second bailout of the Affordable Care Act, Secretary Roberts said the tobacco issue and the Congressional operation of the Internal Revenue Service had "deep" economic and political significance. said. He said it would give me problems. I would not have given him the implicit authority to decide, he wrote.
Professor Larsen said in an interview that elevating ideas to dogma is particularly appealing to conservative judges.
Proponents of another controversial notion of giving state legislatures the unfettered authority to hold federal elections call it the "doctrine of independent state legislatures." However, its efforts to create a new doctrine have met with considerable resistance.
Scholars disputed the leading question's approach, saying it changed the rules in the middle of the game, imposing an unrealistic burden on Congress in any event.
“When Congress drafted many laws delegating powers to executive agencies, we did so without thinking that we should specify every major regulation that the agencies might implement. ’ says Daniel. T. Deacon and Leah M. Littman, professors of law at the University of Michigan, write "The New Major Questions Doctrine" for publication in Virginia Law Review.
Even if legislators anticipated the new doctrine, two scholars said: I explained," he said. It's unrealistic and unlikely to explain in the future.
They added that the theory's requirement that Congress speak clearly when an issue is politically significant allows for gamesmanship after the fact. increase.
Calling something dogma has consequences, Professor Larsen said in an interview. "You study it for the bar exam," she said. "Get the syllabus section."
But she added that the mechanical application of "theory" could be a substitute for rational judgment.
The Strange Supreme Court Doctrine Is Emerging That Threatens Biden's Plan
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