Fannie Mae (FNMA)

[Robert from yahoo bd]

Should be a good one tomorrow morning, students are already camped out on the steps of the SCOTUS and it's cold and rainy.

"APPLICABILITY OF THE MAJOR QUESTIONS DOCTRINE

The Department of Education claims that the major questions doctrine, which holds that courts should not defer to an agency’s statutory interpretation on questions involving great economic, policy, or political significance, does not apply in this case. The Department of Education explains that this Court typically applies the usual rules of statutory interpretation rather than the major questions doctrine to review economically and politically important executive actions. According to the Department of Education, the major questions doctrine only applies in extraordinary circumstances where an agency claims expansive authority based on “modest words” or “vague terms,” which is not the case here. Rather, the Department of Education points out that the HEROES Act grants the Secretary direct and concrete authority to provide student loan relief in national emergencies. Furthermore, the Department of Education explains that every case where the Court applied the major questions doctrine involved regulatory power, but this case only involves a government-benefit program. The Department of Education further posits that the cost of a government program alone does not mean that plain statutory meaning can be ignored.

The Department of Education further highlights that the Secretary’s authority only applies to limited circumstances, for a limited class, and for limited objectives with specific measures. The Department of Education further maintains that even if the Court applies the major questions doctrine, the Plan is constitutional. The Department of Education argues that the HEROES Act unambiguously authorizes the Secretary to “waive or modify any statutory or regulatory provision,” which complies with the doctrine’s requirement. The Department of Education asserts that the Secretary has the authority to determine the scope of borrowers and the relief of the amount that is necessary to achieve the purpose of the HEROES Act, which are not fundamental questions that the major questions doctrine safeguards.

Brown counters that the major questions doctrine applies in this case. Brown argues that because the Plan proposes to cancel debts of 40 million borrowers amounting to $400 billion, it has significant economic and political impact and thus satisfies one of the requirements of the major questions doctrine. Brown also points out that, while loan forgiveness is highly controversial, the HEROES Act was never controversial because Congress intended to limit the scope of the Act to active-duty military. In addition, Brown asserts that Congress did not give the Secretary authority to approve the Plan because Congress never explicitly authorized it. Brown points out that the scale and the impact of the action are unprecedented. In opposition to the Department of Education’s argument that the Secretary has the authority to determine the scope of borrowers and the amount of the forgivable debt, Brown argues that this authority is too broad. Brown also argues that neither the HEROES Act’s text nor its legislative history authorizes the Secretary to cancel student-loan debts."

https://www.law.cornell.edu/supct/cert/22-535

"One tactic utilized by the Supreme Court in the past is known as the "Major Questions Doctrine" and concerns federal courts striking attempts by government agencies to enact major policies without the involvement of Congress. The doctrine can apply to policies, decisions, and regulations that have a significant impact on the economy, or which have a general political significance. Last summer, for example, the Supreme Court struck down an attempt by the Environmental Protection Agency (EPA) to regulate power plant emissions."

https://www.newsweek.com/student-loan-update-one-doctrine-could-unravel-bidens-relief-plan-1784099

https://www.bloomberg.com/news/articles/2023-02-27/student-loan-relief-plan-has-a-date-with-the-supreme-court?leadSource=uverify%20wall

https://law.stanford.edu/2023/02/24/qa-senior-fellows-john-f-cogan-and-michael-mcconnell-on-their-new-amicus-brief-opposing-the-student-loan-forgiveness-program/

"When the president presumes the authority to decide such major questions, it must be pursuant only to a clear authorization from Congress to make the policy."

https://www.heritage.org/the-constitution/commentary/can-biden-cancel-student-loan-debt-heres-why-its-major-question

Presidents do this by finding the authority they want in some existing law that already grants power to the president—teaching an old law new tricks.

In 1998, Paul Begala, a political aide to President Bill Clinton, notoriously summarized the process: “Stroke of a pen. Law of the Land. Kind of Cool.”

President Barack Obama upgraded to a “pen and a phone” to work around Congress when necessary, inspiring “Saturday Night Live” to air a skit updating “Schoolhouse Rock!”

The COVID-19 pandemic, which President Donald Trump declared a “national emergency” that is still in effect, only intensified this process. It was an emergency power that the Biden administration used to justify the Occupational Safety and Health Administration’s vaccine mandate when Congress failed to enact one into law.

Congress Avoids Issues

Immigration, student loans, vaccine mandates … contentious issues such as these used to be addressed by our elected representatives in Congress. These lawmakers represented the diversity of views in an extensive republic and were forced to bargain and compromise to reach consensus on such controversial matters.

But Congress does not have the capacity, nor do its members have the inclination, to address these issues head-on. So now such issues are settled through a single, winner-take-all election every four years.

Usually when a president uses the pen or phone to make sweeping policy changes, that settles the matter. However, in the last few years the federal courts increasingly have enforced limits on executive power by interpreting the laws that delegate power to the president narrowly.

When a president claims to find authority to make sweeping changes in an existing law, rather than waiting for Congress to grant him the authority he seeks, courts have struck down these assertions of power. The eviction moratorium imposed by the Centers for Disease Control and Prevention, the vaccine mandate imposed by the Occupational Safety and Health Administration, and other major actions have been blocked in this manner.

It is a basic principle of our constitutional system that the laws should be made by representatives elected by the people. Article I of our Constitution opens by affirming this principle: “All legislative powers herein granted shall be vested in a Congress.” The president’s job is to execute the law, not to make it.