Todays WSJ: "Justice Brett Kavanaugh, speaking in January at Notre Dame Law School, said Congress needs to have clearly delegated authority to an agency before it is allowed to resolve a major question through massive or expensive new regulation. "We think that's rooted, again, both in constitutional values and also in our understanding of how Congress operates," he said.
References to the major-questions principle have become more common since Justice Neil Gorsuch joined the court in 2017. In a January 2022 concurring opinion, he explained it as requiring agencies to show "clear congressional authorization" when they claim the power to make decisions of vast "economic and political significance." The term appeared in a majority opinion for the first time in June, when the court limited the EPA's authority to combat greenhouse gases.
Liberal members of the high court have called the principle vague, and said their conservative colleagues coined the major-questions doctrine to stymie progressive policies even though the text of the Constitution itself places no such barriers on the elected branches.
"Special canons like the 'major questions doctrine' magically appear as get-out-of-text-free cards," Justice Elena Kagan wrote in a dissent in the EPA case. The conservatives use it to "prevent agencies from doing important work, even though that is what Congress directed," she wrote.
Supporters of the student-debt plan argue Mr. Biden's actions are well within the administration's legal authority and say conservatives on the court are holding policies with which they disagree politically to an unreasonable standard.
"This Supreme Court has shown that it is trying to take power away from Congress and away from the administration and pull it in toward itself," Sen. Elizabeth Warren (D., Mass.) said in an interview. Ms. Warren pointed out that a co-sponsor of the 2003 Heroes Act, former Rep. George Miller (D., Calif.), filed a brief in the case saying the law was intended to permit student-loan debt cancellation."
