Biden v. Nebraska: The New State Standing and the (Old) Purposive Major Questions Doctrine

30 Pages Posted: 29 Aug 2023 Last revised: 15 Nov 2023

See all articles by Jed H. Shugerman

Jed H. Shugerman

Boston University - School of Law

Date Written: August 24, 2023

Abstract

Chief Justice Roberts’s majority opinion in Biden v. Nebraska does not sufficiently explain how Missouri has standing under established Article III doctrine, nor how the Court approaches the major questions doctrine as a method of statutory interpretation. Clarification can come from other opinions, even other cases entirely, in which Justice’s counterarguments are suggestive of the real arguments underlying the decisions.

MOHELA may have faced a concrete injury from the student debt waiver, but there was no evidence that Missouri would – and the majority had no answer for how Missouri had standing without an injury. A debate over special state standing in an immigration policy case (Texas v. United States) revealed a split among the Justices who formed a majority invalidating the student debt waiver – which perhaps explains why the majority avoided addressing it, even as it seems implicitly to be the Court’s basis for Missouri’s right to stand in for MOHELA.

The majority opinion also falls short in explaining its methodological basis of statutory interpretation in this case and in the major question doctrine generally: Is it textualism? Purposivism? A substantive canon of constitutional avoidance? Justice Barrett’s concurrence claims that the MQD method is textualist – but the opinion is so unpersuasive that it backfires and confirms that MQD remains, first and foremost, where it began: an exception in favor of purposivism, instead of textualism. None of the Justices wrote to defend the approach of a substantive canon of non-delegation constitutional avoidance, but that approach is alive and well.

Finally, this Article tells the story of the Biden student debt relief as the use of Covid as a pretext and an example of the growing abuse of emergency executive powers. This question came up in oral argument, but unfortunately, it went unaddressed in all of the opinions. The Court reached the right result but for the wrong reasons; its solutions to limit executive power may be creating new problems.

Keywords: Administrative Law, Standing, Statutory Interpretation, Federal Courts, Federalism, Major Questions Doctrine, Textualism, Purposivism, Emergency Powers, Executive Powers

Suggested Citation

Shugerman, Jed H., Biden v. Nebraska: The New State Standing and the (Old) Purposive Major Questions Doctrine (August 24, 2023). Cato Supreme Court Review, Forthcoming , Available at SSRN: https://ssrn.com/abstract=4550601

Jed H. Shugerman (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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