Major Questions and an Emergency Question Doctrine: The Biden Student Debt Case Study of Pretextual Abuse of Emergency Powers
18 Pages Posted: 1 Feb 2023 Last revised: 3 Mar 2023
Date Written: February 1, 2023
The major question doctrine tries to address one problem, the Imperial Executive, by escalating another, the Imperial Judiciary. This article proposes a solution, with the Biden Student Debt Waiver as a case study: An “emergency question” doctrine.
This emergency questions doctrine would apply when the Executive Branch relies on a statutory emergency clause or invokes an emergency in its application of a statutory provision. The emergency question doctrine would follow the two most important steps of the major question approach: 1) relying on purpose and context to clarify and limit the scope of the open-ended emergency text; 2) no Chevron deference. However, step 3, the "clear statement" rule, is generally a problematic new substantive canon "loading the dice," in Scalia's terms; and it is especially inappropriate in the unpredictability of emergencies. Instead, courts should focus on whether the means fit the emergency ends as a test of pretextual abuse and overbreadth.
This approach addresses two problems: A narrow textual argument based on the word “emergency” gives too much latitude to the executive branch; a purposive approach gives meaningful context for the word “emergency,” setting limits on executive power. Second, it would provide a meaningful category of cases where the logic of the major questions doctrine should apply, and it would provide a way to cabin the major questions doctrine.
I suggest that this solution has already emerged from the recent Major Questions cases, the middle of three stages of the Major Question Doctrine: MQD 1.0, the Good Purposive MQD (2000-2015), a common sense exception to Chevron deference and narrow textualism in favor of purposivism. Brown & Williamson v. FDA (2000); Utility Air Regulatory Group v. EPA (2014); King v. Burwell (2015); MQD 2.0, a Good Emergency MQD (2021-22) can be understood best as an emergency question doctrine, a check against the overbroad use, the pretextual use, or abuse of the Covid emergency; and MQD 3.0, the Bad Anti-Major Canon MQD (2022-active), the requirement of a super-clear-statement rule for any “major” policy, a substantive canon of a presumption against significant executive actions, See W Va. v. EPA (2022). The emergency question doctrine makes sense of MQD 2.0 and also limits the doctrine from further imperial judicial expansion.
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