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The Supreme Court’s conservatives have a flexible new ‘doctrine’

The ever-expanding "major questions" doctrine has become conservative justices' tool of choice for voiding Biden administration policies.

The two challenges to the Biden administration’s student loan forgiveness plan at the Supreme Court may ultimately be decided on narrow grounds. The justices may conclude that the parties challenging the program don’t have legal standing to bring the cases. But Tuesday’s arguments served as a major warning about conservatives’ ambitious hopes for the “major questions” doctrine — their new tool of choice for voiding Biden administration policies.

The “doctrine,” as such, is new. Before 2022, the justices did not even call it the “major questions” doctrine. It was simply the idea, rarely employed, that certain actions by the executive branch have such significant economic or political effect that a vague grant of legal authority claimed by the administration couldn’t be used to justify them. Even as recently as last term, the court — in an opinion by Chief Justice John Robertsexplained that an executive action that a majority of justices decides addresses a “major question” would be upheld so long as “clear congressional authorization” is shown. Because the doctrine is barely tethered to any underlying principles, however, it could easily become an ever-shifting legal policy that expands to fit whatever government program the 6-3 conservative majority of the court wishes to end.

The doctrine is barely tethered to any underlying principles

The growing elasticity of the “major questions” doctrine was on full display Tuesday, as several of the conservative justices picked up the popular online retort that loan forgiveness is somehow “unfair” because some people have already paid off their student loans and others chose not to take out such loans at all (often because they didn’t need to). This is a policy argument, although even that has its limits, and not a legal argument. But that didn’t stop several of the conservatives from repeatedly focusing on it and finding a way to claim it was legally relevant in Tuesday’s arguments — by way of the “major questions” doctrine.

Justice Neil Gorsuch was the most eager, raising the question of “costs to other persons in terms of fairness” in the first case, the challenge brought by Republican-led states. The other justices held off until the second case came up, when the discussion at least made more sense given that it was brought by student loan borrowers who were excluded from relief under the Biden administration’s program. In those second arguments, “fairness” became a repeated topic of inquiry.

Noting the borrowers in the second case, Roberts described a hypothetical situation in which one high school student goes to college and gets a school loan and another starts a lawn care service and gets a bank loan (somehow) for that business. Now, with Biden’s plan, Roberts said, the person with the school loan would get relief and the person with the lawn care loan would be stuck!

Having laid out his extremely weird hypothetical, Roberts then asked, “Why isn’t [fairness] a factor that should enter into our consideration under the ‘major questions’ doctrine?” Under the doctrine, he added, “we look at things a little more strictly than we might otherwise … to make sure that this is something that Congress would have contemplated.”

To hear Alito or Roberts express deep concern about “fairness” was almost too much to bear given their past rulings.

This was a newly expanded version of the doctrine. Moving beyond looking “more strictly” for “clear congressional authorization,” which was the focus of the test as of June, Roberts and friends suggested Tuesday that the strict look in a “major questions” challenge can apparently go in any direction — including whether a majority of the court thinks the administration’s action is “fair.”

As usual, no one was more acerbic in expressing the conservatives’ position than Justice Samuel Alito. “What is your clients’ view about the fairness question that some people have posed and that was reiterated for you by the chief justice?” he asked Solicitor General Elizabeth Prelogar. After having interrupted her twice as she tried to answer, Alito claimed, “I guess you don’t want to answer the question.” Of course, that wasn’t true, and once Alito stopped, she did answer.

“It was fair because, in the absence of this relief, it’s undisputed that there are going to be millions of student loan borrowers who are not going to be able to pay their student loans,” Prelogar said before Alito began trying to interject again. However, she continued, noting that, without this action, affected borrowers would most likely go into default on these loans. “The HEROES Act was specifically designed for this situation,” Prelogar pointed out, referring to the 2003 law the administration cites as authorizing loan forgiveness. “This is Congress telling the secretary you don’t have to let that happen.”

To hear Alito or Roberts express deep concern about “fairness” was almost too much to bear given their past rulings — particularly, as legal writer Jay Willis highlighted, in voting rights and election law cases. Justice Sonia Sotomayor was unwilling to let Prelogar’s eventual answer serve as the only response to Alito on Tuesday. After Alito finally ended his questioning, Sotomayor asked Prelogar three “questions” that were much more clearly pointed responses to Alito.

“I take your bottom-line answer to be everybody suffered in the pandemic, but different people got different benefits because they qualified under different programs, correct?”

“There’s inherent unfairness in society, because we’re not a society of unlimited resources. Every law has people who encompass it or people outside it. Correct?”

“And that’s not an issue of fairness. It’s an issue of what the law protects or doesn’t?”

Prelogar — who is always excellent at the podium — gave an incredibly sharp performance Tuesday. Knowing to step out of the way, she responded to each question simply and concisely: “That’s right. There’s been enormous relief efforts.” “That’s correct.” And, finally, “Yes.”

While the “fairness” arguments might not win the day in this case because of the standing questions, they could become part of the ever-expanding “major questions” doctrine if the justices get to the merits of whether the student loan forgiveness plan is permitted by law. And, regardless of whether they do so in this case, several of the conservative justices made it clear Tuesday that they are more than willing to consider continued expansions of the “major questions” doctrine. Which means that cases raising the “doctrine” — and attempts to increase its reach to end more progressive programs — will continue.