WASHINGTON – With Republicans taking control of the House of Representatives, President Joe Biden's chances of pushing his agenda through Congress are slim. That's a hurdle most first-term presidents encounter after the midterm elections.
But Biden faces another barrier that could close off a path long used as a backup by his predecessors: Federal courts, including the Supreme Court, are clamping down on attempts by federal agencies to make major policy moves without authorization from Congress.
Going it alone – with a pen-and-phone strategy, as President Barack Obama described it in his second term, or declaring a national emergency to pay for a border wall, as President Donald Trump did in 2019 – is becoming a tougher sell in court.
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Federal courts have already put Biden's $400 billion plan to forgive student loan debt on pause. The administration appealed one of those cases to the Supreme Court Friday, which means the justices may have another opportunity to wade into the issue.
An appeals court last month, meanwhile, ruled against an Obama-era policy that protects undocumented immigrants brought to the United States as children. The Supreme Court, in January, halted Biden's vaccine-or-testing mandate for large employers. And in June, the high court shot down an Environmental Protection Agency effort to curb power plant emissions.
Those decisions follow a yearslong push by conservatives to curb the "administrative state," arguing agencies should have less power to act unless there's clear congressional approval. The Supreme Court bolstered that effort in June by relying on the "major questions doctrine" to decide a high-profile climate change case.
"If the administration is going to advance many of its priorities, it's going to have to do so through the regulatory process, and that is going to invite 'major question' challenges," said Ian Gershengorn, a veteran Supreme Court lawyer. "Anytime an agency is looking to push the boundaries a little bit ... this doctrine is going to come into play."
Supreme Court signals skepticism of 'major' agency regulations
Republicans captured the House majority late Wednesday, more than a week after the Nov. 8 elections, meaning that chamber will be at odds with the White House at virtually every turn. Presidents of both parties have often shifted to agency regulations and executive actions when they're unable to move an agenda through Congress.
But under the major questions doctrine, courts are supposed to be skeptical of those regulations if they have a major impact on the economy or are a matter of great "political significance." The meanings of those terms are not entirely clear, and experts are still debating how and when, precisely, courts are supposed to invoke the principle.
If the Biden administration tries to revive Obama-era rules on net neutrality, for instance, that could face a challenge under the doctrine. Under those rules, imposed and then dropped by the Federal Communications Commission, internet providers such as Verizon and Comcast would be barred from favoring some sites over others.
Others have questioned whether the Supreme Court's reliance on the major questions doctrine will have a significant influence on how courts decide challenges to regulations.
Jennifer Mascott, a law professor at George Mason University, described it during a recent Federalist Society event as "another tool in the toolbox for folks who want to find agency action unlawful" but said it largely tracks with the "textualist" approach courts have already been using for years to decide similar cases. Under that textualist approach, judges make decisions based mostly on the plain meaning of a law.
The legal fight over Biden's student loan program is the latest dispute in which the doctrine has popped up. U.S. District Judge Mark Pittman relied on it in his Nov. 10 order striking down the loan program. "Because the program is an agency action of vast economic and political significance, the major-questions doctrine applies," Pittman wrote.
But the Biden administration told an appeals court Thursday that the doctrine shouldn't apply to the student loan program because, it said, Congress had specifically authorized the Department of Education to waive or modify student loan program provisions in a 2003 law.
"Agencies frequently take politically controversial or economically significant actions; the Supreme Court has never suggested the doctrine applies in all such cases," the administration's attorneys told the U.S. Court of Appeals for the 5th Circuit.
Separately, the administration on Friday asked the Supreme Court to block a ruling from the St. Louis-based U.S. Court of Appeals for the 8th Circuit. That 8th Circuit ruling, the administration said, "leaves millions of economically vulnerable borrowers in limbo, uncertain about the size of their debt and unable to make financial decisions with an accurate understanding of their future repayment obligations."
'Major questions' approach central to climate decision
In a high-profile environmental ruling in June that was largely overshadowed by the 5-4 decision six days earlier to overturn Roe v. Wade, the Supreme Court's conservative majority invoked the major questions doctrine to invalidate an EPA effort to regulate power plant emissions that contribute to climate change.
Writing for a 6-3 majority, Chief Justice John Roberts said the doctrine allows courts to strike down regulations in "extraordinary cases" when they are not explicitly permitted in a law.
For instance, if a law says the surgeon general is "authorized to make and enforce such regulations as in his judgment are necessary to prevent the ... spread of communicable diseases," that doesn't mean he may halt evictions just because people kicked out of an apartment might wind up in shelters, where COVID-19 could spread more easily.
If the administration wants to halt evictions, the high court signaled last year, it must persuade Congress to approve a law granting it that power. The fact that passing such a law through a divided Congress is difficult, some justices have said, isn't an excuse.
"By effectively requiring a broad consensus to pass legislation, the Constitution sought to ensure that any new laws would enjoy wide social acceptance," Associate Justice Neil Gorsuch wrote in the EPA case. In turn, he said, those laws would "profit from input by an array of different perspectives" and would "prove stable over time."
That's beside the point, the court's liberal justices say. When Congress approves broad language like it used in the health law, it is intentionally giving the agency wide power. That might be because lawmakers want it to be able to respond quickly to an emergency Congress couldn't foresee. Or it might be because Congress wants to defer to an administration's technical staff who have the expertise to implement a law's broad goals.
"Over time, the administrative delegations Congress has made have helped to build a modern nation," Associate Justice Elena Kagan wrote in her dissent from the EPA decision, calling attention to regulations that have made airline travel, cars and consumer products safer. "It didn’t happen through legislation alone. It happened because Congress gave broad-ranging powers to administrative agencies."
Contributing: Chris Quintana
This article originally appeared on USA TODAY: How a Supreme Court decision could limit Biden's post-midterm agenda