The latest Amicus Brief filed by 42 Senators says that a federal agency action by the Department of Education is Unconstitutional because it violates the Major Questions Doctrine as articulated in WV v EPA last June.
Does the NWS violate the Major Questions Doctrine?. Did Congress delegate its power to the FHFA to decide whether or not to Nationalize the 2 lynchpins of the US Secondary Mortgage Market, thus affecting every US household?
"A. The Major Questions Doctrine Applies.
To start, “[w]here the statute at issue is one that
confers authority upon an administrative agency,” the
interpretive “inquiry must be ‘shaped, at least in some
measure, by the nature of the question presented’—
whether Congress in fact meant to confer the power
the agency has asserted.” West Virginia, 142 S. Ct. at
2607–08 (quoting FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 159 (2000)). To that end,
the “major questions doctrine” calls for “skepticism”
before accepting extraordinary claims of regulatory
authority. Id. at 2614.
This Court “presume[s] that ‘Congress intends to
make major policy decisions itself, not leave those
decisions to agencies.’” Id. at 2609 (citation omitted).
That presumption rests on the understanding that
Congress will “speak clearly when authorizing an
agency to exercise powers of ‘vast economic and
political significance.’” Ala. Ass’n of Realtors v. HHS,
141 S. Ct. 2485, 2489 (2022) (per curiam) (quoting
Util. Air Reg. Grp. v. EPA, 573 U.S. 302, 324 (2014)).
And it simultaneously “operates to protect
foundational constitutional guarantees.” West
Virginia, 142 S. Ct. at 2616 (Gorsuch, J., concurring).
By vesting “[a]ll legislative Powers” in Congress,
U.S. Const. art. I, § 1, the Framers believed that
“‘important subjects must be entirely regulated by the
legislature itself,’ even if Congress may leave the
Executive ‘to act under such general provisions to fill up the details.’” West Virginia, 142 S. Ct. at 2617
(Gorsuch, J., concurring) (cleaned up) (quoting
Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42–43
(1825) (Marshall, C.J.)). The major questions doctrine
safeguards that constitutional division of authority,
preventing agencies from seizing “highly
consequential power beyond what Congress could
reasonably be understood to have granted.” Id. at
2609 (majority op.).
“[T]his is a major questions case” if there ever was
one. Id. at 2610. First, the Secretary has indisputably
asserted a “power[] of vast economic and political
significance.” Ala. Ass’n of Realtors, 141 S. Ct. at 2489
(quotation marks omitted). The staggering price tag
of his action—roughly half a trillion dollars—dwarfs,
by an order of magnitude, what has sufficed to trigger
the major questions doctrine in the past. See id. ($50
billion). And for years, the propriety of student loan
forgiveness has “been the subject of an earnest and
profound debate across the country.” Gonzales v.
Oregon, 546 U.S. 243, 267 (2006) (quotation marks
omitted); see, e.g., Seung Min Kim & Marianna
Sotomayor, Biden signals he’s open to canceling
student loans, Washington Post (Apr. 26, 2022, 2:56
PM), bit.ly/3w1V3fp (“The issue of forgiving student
loans has long been politically fraught.”). Those
considerations alone should give the Court pause. See
NFIB, 142 S. Ct. at 665 (majority op.).
Moreover, the Secretary has “claim[ed] to discover”
in the HEROES Act an “unheralded power” to issue a
mass cancellation of student loan debt. Util. Air, 573
U.S. at 324. Until now, the Department of Education
“ha[d] never relied on the HEROES Act” for the “blanket or mass cancellation, compromise, discharge,
or forgiveness of student loan principal balances.”
Memorandum from Reed D. Rubinstein, Principal
Deputy General Counsel, Department of Education, to
Betsy DeVos, Secretary of Education at 6 (Jan. 12,
2021), bit.ly/3H602Ca. Nor could it. “Congress never
intended the HEROES Act as authority for mass
cancellation.” Id. And the text and context of the Act
make that crystal clear. See infra Section I.B.
Equally troubling, the Secretary here claims
authority “to adopt a regulatory program that
Congress had conspicuously and repeatedly declined
to enact itself.” West Virginia, 142 S. Ct. at 2610.
Both before and after the pandemic, numerous bills
proposing similar, broad cancellation of student loans
were introduced.5 But none managed to pass through
the “single, finely wrought and exhaustively
considered, procedure” that our Constitution
demands. INS v. Chadha, 462 U.S. 919, 951 (1983).
That Congress “has considered and rejected bills
authorizing something akin” to the Cancellation Program shows that the Secretary has “attempt[ed] to
work around the legislative process to resolve for
[himself] a question of great political significance.”
West Virginia, 142 S. Ct. at 2621 (Gorsuch, J.,
concurring) (cleaned up) (citations omitted); see also
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
586 (1952) (recognizing that the seizure power “was
not only unauthorized by congressional enactment;
prior to this controversy, Congress had refused to
adopt that method of settling labor disputes”). Indeed,
when coupled with the President’s campaign promise,
and the conspicuous pre-election timing, that
conclusion is inescapable.
The Secretary suggests that the major questions
doctrine should not apply to cases involving
government benefits. See Pet. Br. at 48–49. But such
cases can pose the same “particular and recurring
problem” that the doctrine aims to address: “agencies
asserting highly consequential power beyond what
Congress could reasonably be understood to have
granted.” West Virginia, 142 S. Ct. at 2609 (majority
op.). This case proves the point. And, if anything,
Congress’s exclusive power to spend and forgive the
monies owed to the government should make this
Court even more reluctant to believe that it broadly
delegated that core legislative power here.
Despite the Secretary’s blinkered belief that
forgiving roughly half a trillion dollars will not
significantly affect the lives of others, see Pet. Br. at
49, that belief is simply untrue. Other Americans will
have to pick up the tab, to the tune of over $2,500 per taxpayer.6 And the problems do not stop there. As
former Treasury Secretary Lawrence Summers has
explained, the Administration’s massive handout will
only exacerbate inflation, “consume[] resources that
could be better used helping those who did not, for
whatever reason, have the chance to attend college,”
and incentivize schools to “rais[e] tuitions” in the long
run for others.7
In short, “there is every reason to ‘hesitate before
concluding that Congress’ meant to confer on [the
Secretary] the authority [he] claims” under the
HEROES Act. West Virginia, 142 S. Ct. at 2610
(citation omitted). Whether to cancel almost half a
trillion dollars in debt for 40-million-plus borrowers is
a monumental decision that affects every American.
And “[t]he basic and consequential tradeoffs involved
in such a choice are ones that Congress would likely
have intended for itself.” Id. at 2613. Therefore, the
major questions doctrine applies.
