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: 13 Apr 2023

See all articles by Jed H. Shugerman

Jed H. Shugerman

Boston University - School of Law

Date Written: February 1, 2023

Abstract

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.

Suggested Citation

Shugerman, Jed H., Major Questions and an Emergency Question Doctrine: The Biden Student Debt Case Study of Pretextual Abuse of Emergency Powers (February 1, 2023). Fordham Law Legal Studies Research Paper No. 4345019, Available at SSRN: https://ssrn.com/abstract=4345019 or http://dx.doi.org/10.2139/ssrn.4345019

Jed H. Shugerman (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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