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Separation of powers, textualism

Last week, the U.S. Supreme Court decided Biden v. Nebraska, a case addressing President Biden’s student loan forgiveness executive order. I wrote previously about the case here.

The case involves significant separation of powers issues and a textualist analysis of the relevant issues. The question was whether the President, by executive order, could forgive federal student loan debt. The Biden administration argued that the executive order was lawful because in a 2002 law following the September 11 attacks, Congress authorized the Secretary of Education in an emergency to “waive or modify any statutory or regulatory provision” governing the student loan program. The Biden administration relied on the emergency declaration for COVID to forgive student loans.

Chief Justice Roberts, writing for the 6 – 3 majority, found that “waive or modify” means that the Secretary can make “modest adjustments and additions to existing provisions, not transform them.” Roberts reasoned that the Biden order, “created a novel and fundamentally different loan forgiveness program…” “It has abolished them [the existing loan programs] and replaced them with a new regime entirely,” he wrote.

In interpreting the text, the majority relied, in part, on the “major questions doctrine,” which posits that courts should not defer to agencies on questions of major social or economic impact unless Congress has given them clear and explicit power.

Justice Elena Kagan disagreed with the majority with a textualist argument. She wrote in a dissenting opinion that the relevant federal statute, “provides the Secretary with broad authority to give emergency relief to student loan borrowers, including by altering usual discharge rules.” Kagan criticized the majority’s statutory analysis by saying that they reach their conclusion by “picking the statute apart, and addressing each segment of Congress’s authorization as if it had nothing to do with the others.”

Kagan also criticized the use of the “major questions doctrine” for undermining the textualist approach. In a concurring opinion, Justice Barrett defended the “major questions doctrine” as being consistent with textualism arguing that it is “a tool for discerning—not departing from—the text’s most natural interpretation.”  

While the opinion was a battle between textual analyses, the separation of powers issue is arguably more important. The “major questions doctrine” is a check on “Chevron deference,” which is the practice of courts deferring to executive branch agencies’ interpretation of regulations. Chevron deference is corrosive of separation of powers. The Court has agreed to take up a case next term addressing Chevron head-on, as I have written about here. This case may be a preview of what is to come on that front.    

Congresses of both parties have been guilty of delegating too much authority to the executive branch agencies. They do this to avoid taking votes on politically difficult issues. The problem is that broad decisions impacting people’s lives are then made by unelected bureaucrats in federal agencies, rather than those elected by and accountable to the people. Similarly, Presidents of both parties have been guilty over the years of relying on executive orders to impose policies that cannot pass Congress. Hopefully, having the Supreme Court put some limits on executive power and asserting a check on Chevron deference will encourage a shift of policymaking and accountability back to Congress.