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Justices’ agency skepticism collides with Congress’ vagueness

Barrett portrayed Supreme Court's student loan decision as a 'clarity tax'

Sen. Josh Hawley, R-Mo.,  said the Supreme Court will have to make clear to Congress that laws must be written more clearly because lawmakers would prefer not to do so.
Sen. Josh Hawley, R-Mo., said the Supreme Court will have to make clear to Congress that laws must be written more clearly because lawmakers would prefer not to do so. (Bill Clark/CQ Roll Call file photo)

When the Supreme Court struck down President Joe Biden’s student loan forgiveness plan last month, the court indirectly gave Congress an instruction: Be more specific.

But Congress for decades generally has tended to avoid the particulars in sweeping policy bills, whether to avoid politically thorny specifics or to let scientific or financial experts at federal agencies figure out the details of implementing the laws. Lawmakers aren’t likely to change the way they write laws anytime soon to better hold up under Supreme Court scrutiny, lawmakers and experts said.

In the student loan case, handed down last month, the court’s conservative majority styled it as a defense of Congress. They found the Biden administration’s attempt to wipe out $400 billion in student debt had overstepped the bounds of a federal law and usurped the power of Congress to control government spending.

Justice Amy Coney Barrett wrote in a concurring opinion that the decision imposed a sort of “clarity tax” if Congress empowers agencies to make major changes. She analogized it to parents telling a babysitter to “make sure the kids have fun” and then being angry the babysitter splurged on a $2,000 theme park trip.

“If a parent were willing to greenlight a trip that big, we would expect much more clarity than a general instruction to ‘make sure the kids have fun,’” Barrett wrote.

E. Donald Elliott, a professor at Yale and Scalia law schools, said Barrett’s approach is a commonsense principle, but it gets the incentives wrong and runs directly into congressional practice.

“She sort of assumes that Congress is going to want to make some of the big decisions itself and that’s wrong,” said Elliott, a longtime environmental lawyer and former general counsel at the EPA. “Congress really tries to avoid making hard decisions because it will piss people off.”

Conservative approach

Last month’s decision against the student loan plan was the latest example of the Supreme Court’s skepticism that Congress had intended to hand over so much of its power to executive branch agencies. It likely is not the last.

Related: Biden launches new effort to salvage student loan relief plan

That clearest distillation of that skepticism might be the “major questions” doctrine that the majority invoked in the student loan case. Under that approach, Congress must clearly address agency authority when dealing with “major questions” of economic or political significance.

Chief Justice John G. Roberts Jr. wrote the majority opinion that found a 2003 law gives the secretary of Education the power to “waive or modify” loan requirements in a national emergency, but not the power to make wholesale changes to the student loan system.

“From a few narrowly delineated situations specified by Congress, the Secretary has expanded forgiveness to nearly every borrower in the country,” Roberts wrote. The doctrine “requires that Congress speak clearly before a department secretary can unilaterally alter large sections of the American economy,” he wrote.

The court first used the “major questions” doctrine to decide a case last year, West Virginia v. EPA, that tossed out the Biden administration’s attempt to regulate greenhouse gas emissions. Experts said the court has been building to that for years.

Critics of the majority’s approach to administrative law, including Justice Elena Kagan, have called it a pretext for the conservatives to strike down administrative actions they don’t like. In her dissent in the student loan case, Kagan wrote that the majority dissected and rearranged the law the Biden administration used until the forgiveness plan fell outside it.

Kagan said that the majority’s “major questions” doctrine imposed “heightened specificity” requirements for an agency to do something the court didn’t like.

“The doctrine forces Congress to delegate in highly specific terms — respecting, say, loan forgiveness of certain amounts for borrowers of certain incomes during pandemics of certain magnitudes. Of course Congress sometimes delegates in that way. But also often not,” Kagan wrote. 

No change

Congress isn’t likely to change the way it writes laws anytime soon to satisfy the court.

Sen. Josh Hawley, R-Mo., called it a “very strong impulse” for members of Congress to write laws that leave the specifics up to administrative agencies.

“I mean probably impulse doesn’t do it justice. It is just a decided preference to do it that way,” Hawley said. “In my limited observation, it’s because drafters of the bill just don’t want to think that hard about what to write, but sometimes it is political. Sometimes it’s like, ‘Well, this could be thorny, so let’s let the agency work it out.’”

Hawley, who worked as Missouri’s attorney general, an attorney and Supreme Court clerk, said it likely would take years of Supreme Court decisions with the “major questions” doctrine for members of Congress to write more specific laws.

“They’d have to send that signal to Congress that, ‘You really are going to have to write laws that are more specific,’ because this body does not want to do that. And again, it’s just that we haven’t been doing it for decades now,” Hawley said.

Rep. Jamie Raskin, D-Md., an attorney and former constitutional law professor, called the major question doctrine “an utterly subjective and arbitrary standard” that the court’s conservative majority invented out of thin air.

“This is a complete land grab by the Supreme Court,” Raskin said. “They get to decide whether a particular regulatory action under a statute implicates a major question or not.”

He also suspects the conservative majority’s concern for the sweep of the administrative state will vanish when Republicans control the White House, so the effect on Congress will be one-sided.

“It’s all political, of course. So the conservatives will do whatever they want to do, but liberals who want to engage in serious legislative progress will be forced to define our terms far more specifically,” Raskin said.

Other considerations

William Funk, a law professor emeritus at Lewis & Clark Law School, said legislators have a lot more on their minds than trying to gauge whether language will be specific enough to satisfy the justices.

“It won’t make any difference to Congress. Congress doesn’t write statutes based on how the court will interpret them,” Funk said. So far, the Supreme Court has only invoked the new doctrine when the administration sought a law from Congress, failed, and then acted anyway.

The big problem, Funk said, will be for administrative agencies who are relying on statutes that are decades old. Funk pointed out that major chunks of administrative law like the Clean Air Act, Clean Water Act and Occupational Safety and Health Act have not been changed substantially since the Nixon administration.

“Now because Congress isn’t doing anything with respect to these large numbers of areas, climate change, immigration, student loans, you name it, the agency is sort of pushing the envelope to interpret these old statutes to cover these new problems,” Funk said. The court has already set up another case for next term, in Loper Bright Enterprises v. Raimondo, that could put them on a collision course with Congress.

In that case, the fisheries industry is challenging a Biden administration rule that requires ships to pay the costs of inspectors who monitor compliance with fishery management practices. At the center of the case is a decades-old precedent that courts will defer to agencies’ interpretation when Congress wrote a vague law.

Tossing that precedent, known as Chevron deference, would give the court more power in determining whether an agency has acted as Congress intended. Many Republicans have pushed for the end of that deference for years, including in a bill passed by the Republican-controlled House last month to do exactly that.

The deference doctrine dates to a 1984 Supreme Court case, Chevron USA Inc. v. Natural Resources Defense Council Inc., where the justices wrote that courts should defer to agency interpretation of ambiguous laws. Skeptics of the deference argue it has allowed administrative agencies too much leeway to act however they want.  

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