Courthouse Steps Decision: Biden v. Nebraska

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Sam Fendler:  Hello everyone, and welcome to this Federalist Society virtual event. My name is Sam Fendler, and I'm an Assistant Director of Practice Groups with The Federalist Society.

Today, we're excited to host a Courthouse Steps Decision webinar on Biden v. Nebraska. We're joined today by Jesse Panuccio. Jesse is a partner in Boies Schiller's Washington, D.C., and Fort Lauderdale offices. Jesse has served as the Acting Associate Attorney General of the United States, the No. 3 at DOJ, and as General Counsel to the governor of Florida.

Today, Jesse's practice focuses on high stakes litigation and appeals, particularly in the areas of regulation and crisis management. If you'd like to learn more about Jesse, his full bio can be viewed on our website, fedsoc.org.

After Jesse gives his opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window, and we'll do our best to answer as many questions as we can.

Finally, I'll note that, as always, all expressions of opinion today are those of our guest speaker and not The Federalist Society. With that, Jesse, thank you very much for joining us today. It's good to have you back. And the floor is yours.

Jesse Panuccio:  Thank you, Sam. Thanks for having me back. Thanks to The Federalist Society for hosting this teleforum on the Supreme Court's decision in Biden v. Nebraska—one of the blockbuster cases handed down at the end of the term in June—this one on the very last day.

I always appreciate The Federalist Society for hosting these analyses -- analysis sessions right after the opinions come down. I know they're helpful to me when I'm trying to get up to speed on a case without necessarily wanting to read everything all at once. So I appreciate the chance to do this on this important case of Biden v. Nebraska.

My discussion of the case will proceed in five parts—all brief: first, the background of the case, second, the Court's holding on standing, third, the Court's holdings on the merits, fourth, the separate opinions—the dissent by Justice Kagan and the concurrence by Justice Barrett—and fifth, next steps on the student loan cancellation efforts of the Biden administration and also broader doctrinal implications of the decision in Nebraska.

So let me start with the first topic—part one, the background. What was this case all about? This case, for those who don't know, concerns federal -- the federal student loan program. Under Title IV of the Higher Education Act of 1965—or the HEA—the Secretary of Education administers student loan programs. There are several of them. The biggest one is the direct loan program. There were legacy loan programs that have since expired. However, there are many loans or loan principles still outstanding on those.

As of the second quarter, the end of the second quarter of 2023, the Department of Education had $1.64 trillion in outstanding principal and interest in federal loans. That debt is owed by about 43.6 million unique borrowers—so 43 million borrowers, 1.6 trillion in debt.

During the 2020 presidential election or presidential campaign, then candidate Biden pledged that he would cancel at least $10,000 of student loan debt for households making less than $125,000 per year. To effectuate this promise once he was elected, the Biden administration decided to act unilaterally. They could not get Congress to agree to such a sweeping plan. And so as is often the case in the modern administrative state, the executive decided to create a program on its own.

In August, 2022, President Biden announced that the Secretary of Education would be canceling student loan debt en masse—that is, in a blanket manner. For individuals making less than $125,000 and couples making less than $250,000, the Secretary would eliminate $10,000 of debt.

Now, for those who had Pell Grants, it could be up to $20,000. But typically, it was going to $10,000 of debt cancellation. The Secretary estimated that this would cancel about $430 billion in debt owed by 43 million borrowers. Roughly half of all student loan borrowers would have their debts completely erased under the program regardless of educational choices or quality, personal and career choices, or ability to pay so long as the total income threshold was below either $125,000 or $250,000 for a couple.

Now, as authority for this truly unprecedented action by a Secretary of Education, the Secretary cited the HEROES Act, which was first enacted in the wake of 9/11 to help military members who were responding to that crisis at the time. And that act states that the Secretary “may waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under Title IV of the HEA as the Secretary deems necessary in connection with a war or other military or national emergency.”

So we'll come back to that language, but it gives the Secretary in war, military, or national emergency the authority to waive or modify statutory provisions of the Higher Education Act.

According to the Biden administration, the COVID pandemic—which President Biden would declare over in September of 2022—was a national emergency in August of 2022 that necessitated blanket cancellation of $431 billion of debt owed to the American taxpayer. In response to this announcement, this new program or plan, if you will, six states sued and moved for a preliminary injunction, which the district court denied -- a district court in Missouri denied on the ground that no state had standing.

The states appealed, and the Eighth Circuit Court of Appeals issued a nationwide injunction pending resolution of the appeal. Upon the solicitor general's request, the Supreme Court granted certiorari before judgment. It doesn't happen that often, but it does happen from time to time—most often when the government asks for it in important cases, and that's what happened here.

The case was then briefed, and it was argued on February 28, 2023, along with a companion case, Department of Education v. Brown, in which individual borrowers also challenged the legality of the Secretary's plan. Solicitor General Prelogar argued for the Secretary. The Solicitor General of Nebraska, James Campbell, argued for the state plaintiffs, and Michael Connolly of the Consovoy McCarthy firm argued for the individual plaintiffs in the Brown case.

Combined, if you happen to listen to them, you will know that the arguments lasted for 3 hours and 17 minutes. So there was no shortage of full argument and airing of these issues at the Court on argument day. The Court issued its decision on the last day of the term—June 30, 2023. Chief Justice Roberts authored the decision, and he was joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett all in full. Justice Barrett filed a concurring opinion, and Justice Kagan filed a dissent joined by Justices Sotomayor and Jackson.

So that is the background. That brings me to part two of the discussion today, and that's the majority's holding—or really, the majority's holding—and then the dissent's response on the issue of standing. And I'm going to focus on the issue of standing in the Nebraska case. In Brown, the Court held unanimously that the private plaintiffs did not have standing.

And that's an interesting case because the theory of standing that the plaintiffs asserted there was very interesting. Justice Alito wrote the opinion there and called it novel. For those who are interested, I would just commend that opinion to you. But I'm going to focus on the Nebraska case, both standing and merits today.

So in Nebraska on standing, the Court concluded that Missouri had standing, and therefore it didn't need to reach whether the other states had a standing. But it concluded that Missouri had standing to challenge the debt cancellation plan because the program would harm MOHELA or MOHELA—a nonprofit government corporation created by the state of Missouri to participate in the student loan market.

The elimination of accounts under the Secretary's program would cost MOHELA about 44 million per year in servicing fees, which the Supreme Court held was an injury, in fact, directly traceable to the challenge program.

The Court held that harm to MOHELA is harm to Missouri because MOHELA is a public instrumentality of the state. Its proceeds fund education in Missouri. It is subject to the state's supervision and its control, and it may be ultimately dissolved by the state.

And so the interesting back and forth here could be deemed a question of state law in some respects. How does Missouri treat its public corporation? And in the dissent majority, there's some dueling citations back and forth of Missouri Supreme Court decisions and so forth. But that's sort of where the issue is here.

And in her dissent, Justice Kagan disagreed with the Court's standing analysis. She deemed the state’s “classic ideological plaintiffs” with no personal stake in the Secretary's program. Justice Kagan accused the Court of deciding “a political and policy dispute” rather than—again, I'm quoting—“acting like a Court.”

Justice Kagan deemed the state's standing arguments risible and reasoned that MOHELA does not grant Missouri standing because it is legally and financially -- it is a legally and financially independent public corporation, and its revenue losses do not pass through to the state. Justice Kagan noted that MOHELA could have brought suit but chose instead to stay “as far from this suit as it can manage.”

Responding to Justice Kagan's accusation that the Court had abandoned its judicial role by deciding the case, Chief Justice Roberts closed the majority opinion by calling “disturbing the feature of some opinions to criticize decisions with which they disagree as going beyond the proper role of the judiciary.”

With tongue seemingly planted in cheek, he wrote that the majority did not “mistake heartfelt disagreement for disparagement in Justice Kagan's dissent, as the latter would be harmful to this institution and our country.” Now, I think it's hard to read that passage and not see the chief as chastising the dissenters for adding fuel to the fire of recent attacks on the Court by media and politicians in Washington and elsewhere.

Indeed, if you read the chief's messages in the last few years in the end of year reports on the federal judiciary, he has been sounding a theme repeatedly that turning disagreement on law into disparagement of the institution is having a deleterious effect on the judiciary nationwide. I think the last paragraph of the Nebraska opinion is a continuation of that theme.

And although it says it's not directed at his colleagues, it seems pretty obvious that it is directed at dissent, which is interesting that the criticism seems to be moving from perhaps members outside the Court to members inside the Court. So that's part two—the analysis on standing. Let me turn to part three—the merits question that was presented in the case and how the Court decided it, how the concurring and dissenting opinions responded.

So again, I'll just repeat, the case presented a question of statutory interpretation. Does the Secretary's authority under the HEROES Act to “waive or modify any statutory provision applicable to the student financial assistance programs under the HEA provide the Secretary with the sweeping power to cancel all student loan debt?”

The Court answered that question in the negative. In short, the Court said, “That power has limits.” Turning first to the power to “modify,” the Court held that the word connotes moderate changes. And the Secretary's changes were not moderate or minor, but instead—and again, I'm quoting—“create a novel and fundamentally different loan forgiveness program than the one already found in the provisions of the HEA.”

In a great line, the chief justice quipped as follows, and this is all a quote. “The Secretary's plan has modified the cited provisions only in the same sense that the French Revolution modified the status of the French nobility. It has abolished them and supplanted them with a new regime entirely.” 

So that was the analysis of the power to modify. The Court turned next to the power to waive. And the Court explained that the Secretary's action was unprecedented in the history of actions under the HEROES Act. And the Court reasoned that the term “waive” did not really fit what the Secretary was doing because no specific provision of the Higher Education Act establishes the obligation to repay.

Instead, the Secretary waived the portions of the HEA that put limits on the loan discharges that are authorized by the HEA. But even this maneuver, the Court held, did not capture what the Secretary was really doing because instead of just waiving those provisions, he added eligibility requirements that were found nowhere in the statute—thus far from a mere waiver. The Secretary “drafted a new section of the Education Act from scratch by waiving provisions root and branch and then filling the empty space with radically new text.”

Finally, the Court responded to the Secretary's argument that his actions comported with congressional purpose, if not congressional text: i.e. that the Secretary should be able to “do something” when a national emergency harms borrowers and that this is what Congress must have meant in enacting the HEROES Act.

In response, the Court noted that the question is not whether something should be done but who has the authority to do it. Here, the Court invoked its decision from last term in West Virginia v. EPA, which held that given the history and breadth of the authority that the agency had asserted and the economic and political significance of that assertion, there is reason to hesitate before concluding that Congress meant to confer such authority.

This is known as the major questions doctrine. And though the majority did not name it as such in Nebraska, the Court found it applicable here where the Secretary claimed unlimited power to rewrite the Higher Education Act and unilaterally define every aspect of federal student financial aid. This, the Court held, is the executive seizing the power of the legislature.

Putting an exclamation point on that holding and that reasoning, the Court quoted none other than former Speaker of the House, Nancy Pelosi, who in a 2021 press conference said the following in no uncertain terms: “People think that the president of the United States has the power for debt forgiveness. He does not. He can postpone. He can delay, but he does not have that power. That has to be an act of Congress.”

Now, use of that quote might once have qualified as at least a subtle bench slap in the old days of David Lat’s Underneath Their Robes blog to sort of take the speaker's “in a press conference” around the same time that the president was devising this plan and feature it very prominently to show that the executive was overriding and seizing the power of the legislative branch. And those of you who were around back in those days and enjoyed that blog as much as I did will understand the reference to a bench slap. I think this one qualifies.

Let me turn then to part four. So that was the majority's reasoning on the merits and on the meaning of the HEROES Act and whether it gave the Secretary authority to cancel student loan debt in a blanket manner. Here in part four, I'll talk about the dissenting and concurring opinions. I'll start with the dissent because I think the concurrence really seems to be responding to the dissent—so better to start with the dissent.

On the merit’s issues, Justice Kagan's dissent picks up right where her standing analysis left off: accusing the majority of faithless textualism and stepping into the role of Congress. Justice Kagan's main criticism is that the majority analyzes each power granted under the HEROES Act—the power to modify and the power to waive—separately, whereas reading them together provides more power than the individual meaning of each word.

Justice Kagan deemed it “insane” to read the statute to permit a minor change through “modify” and a wholesale elimination of a requirement through “waiver” but nothing in between, such as the ability to develop an entirely new debt cancellation program.

After concluding an analysis of the text, Justice Kagan re-ups her attack on the major questions doctrine from her dissent in West Virginia v. EPA last term. The dissent argues that the doctrine answers the question of who has the authority by pointing to the Court rather than Congress—i.e. that it is just a cover when the executive makes a policy decision “not to the Court's satisfaction.

However, for all the seeming concern in the dissent about the weakness of the majority's textual analysis, it ends with a lament that seemingly undermines everything that comes before it. In the last lines of the dissent, Justice Kagan bemoans “the consequences of the decision are eliminating loan forgiveness for 43 million Americans.” So at the end of the day, the dissent's final argument is about the consequences of the decision, not necessarily its legal reasoning.

Justice Barrett's concurrence focuses solely on the major questions doctrine. Although Justice Barrett states the concurrence is meant to respond to the arguments of the parties in their briefs, I think it's hard not to read it as motivated by the sharp attack on the doctrine in the dissent. I'll leave it to curious listeners here to go ahead and read the concurrence in full. It is quite scholarly. It reads much like a law review article—reconciling the theories of interpretive canons and textualism.

Indeed, in the first 6 pages of the concurrence, last night, I quickly counted at least 10 law review articles, citations—somewhat rare for judicial opinion to rely that heavily on scholarship. But I think you can read that as a very earnest attempt to answer some of the criticisms and reconcile some of the theories that have evolved around the major questions doctrine.

Justice Barrett herself gives the “short version” of her concurrence. So I'll provide that to you here. She offers that on page five, and it's that she views the major questions doctrine as an interpretive tool reflecting common sense about congressional delegations—a point of context, if you will—rather than a substantive canon or clear statement rule that overrides plain text. So that's part 4—discussing -- rounding out the discussion of what the Court held and what the dissenting and concurring opinions had to say about the merit’s issues.

Let me turn then to my last topic of conversation, which is next steps for student loan cancellation and broader doctrinal implications of the decision. I'll keep this relatively short so we can discuss it more in Q&A and comment period. But I think there are essentially three big issues coming out of the decision.

First, what will happen with President Biden's promise to cancel student loan debt? Obviously, this particular plan or program is now dead, and the federal FISC has not yet lost $450 billion in collectibles. Undeterred however, almost immediately after the opinion issued, the Department of Education announced it would enter into rulemaking under the Higher Education Act to establish another debt cancellation program purportedly under the Secretary's powers under that act.

He has now abandoned the HEROES Act and will point to the HEA, apparently, as providing that authority. The big question then will be this: does the Secretary have the power under the Higher Education Act to engage in blanket cancellation of student debt? And, of course, if the Secretary had that power, why didn't he use it in the first place instead of using the time-limited HEROES Act authority one month before the president said the supposed national emergency justifying the action was over?

Given the Court's holdings in Nebraska about the HEA—the Higher Education Act—authorizing only limited debt cancellation, it's pretty hard to see how any blanket forgiveness program that goes beyond those limited circumstances will be deemed legal by the Supreme Court and presumably lower courts.

Now, there's a lot more I could say on this issue, but guess what? I've already said it in an earlier teleforum regarding the Sweet v. Cardona case, which is pending in the Ninth Circuit. Full disclosure, I am one of the attorneys in that case briefing and arguing that case. So everybody that knows that knows I obviously have a view on those.

But in that case, the Secretary has already asserted that the HEA grants him the power to blanket cancel billions in student loan debt based on the HEA provision that permits the Secretary “to compromise, waive, or release any right title claim lien or demand with respect to the functions, powers and duties vested in him by Part B of the Higher Education Act.”

If you are interested in the nuances of that argument and the reasons why it is baseless, please give that earlier teleforum a listen. I won't repeat all of that here. But it was held on March 9, 2023. And it can be found on The Federalist Society's website on their Teleforms page.

And, of course, Nebraska has, as you might expect, huge implications for that case, where the government has yet to file its answer brief in the Ninth Circuit. So if you're interested in these issues and how they're going to unfold in real time, keep an eye on the briefing to see what exactly the government will say now and how this issue of the Secretary's power under the HEA plays out. So that's sort of next steps on the Biden administration's desire to cancel student loan debt en masse.

Moving beyond that specific context, I think it's worth analyzing a bit about the decision's broader doctrinal implications perhaps beyond this context. The first implication, I think, is maybe about standing for states. It will be interesting to see if states seek to file more suits based on the interests of various instrumentalities or public corporations that were created by their legislatures.

Indeed, in the right case, you could imagine a state establishing an instrumentality simply to obtain standing where it might not otherwise exist. And I credit often the creativity of state solicitors general and state legal officers who find ways to challenge what the federal Executive Branch is doing given that Congress has essentially become a nullity in that respect. It is often left to the states to check the federal executive, and this may give them additional power to do so as they take this standing ruling and run with it.

The second major doctrinal issue and the one that many scholars and, frankly, advocates are often interested in is the major questions doctrine. With Nebraska now on the books, that doctrine is even more firmly entrenched whether it's regarded as a contextual tool, as Justice Barrett suggests in her concurrence, or as a clear statement canon, as has been suggested by scholars and others analyzing these opinions.

And I think importantly for the doctrine, the Court firmly rejected the solicitor general's argument that it is limited to regulation and has no application in public benefits cases. The argument the solicitor general made is that because this is about money and public benefits, somehow, the doctrine wouldn't have applicability there. It's only when an agency is firmly regulating.

Now, I think it's worth asking what exactly the line is between regulation and public benefits because, of course, as the Court noted, what the Secretary did here was regulate without rulemaking or create without formal rulemaking rules around who would be eligible and ineligible for his program. That is sort of classic regulation. So it's a little bit difficult to even follow the argument. And the Supreme Court roundly rejected it in Nebraska.

So very interesting on both those fronts, I think, both standing and major questions. A lot will flow out of this opinion on those topics and perhaps much more. But I think I've been speaking for about a half hour now. Sam, if you want to take the floor back and open it up to questions, or maybe you have some questions, I'd be happy to respond if I can.

Sam Fendler:  Excellent. Thank you very much, Jesse, for giving us such a good and comprehensive overview of the opinion at the outset. We will now turn to our Q&A portion. So again, if you have a question, please enter it into the Q&A function at the bottom of your screen.

Jesse, I want to first ask you about the textual interpretation, the textual analysis that's going on in the majority opinion. I do want to ask you about the major questions doctrine later. But it seems to me that the opinion is really being determined on the statutory interpretation—the textual meaning of these words “waive” and “modify.”

And I'm wondering if you could speak about the textual analysis that the Court's opinion is displaying here sort of, I mean, in a macro sense. Conservatives and libertarians are interested in the jurisprudence of this kind of analysis. So I'm wondering what you think about how the Court did here.

Jesse Panuccio:  Well, it's a good question. Absolutely, both the majority and the dissenting opinion. Again, Justice Barrett's opinion really is about the theory and doctrine of major questions. So we'll put that opinion aside. But there is a dueling textual analysis in the majority and dissenting opinions.

And the majority opinion takes these two words, modify and waive, and takes their dictionary definitions and says, “Can what the Secretary did here be squared with the plain meaning and understanding of those words?” And ultimately, the Court says, “No. The conclusion on modify is fairly straightforward.”

The Court says, “Look, modify is not radical. It's a minor change. This is a dictionary definition.” Obviously, what the Secretary did here was not to modify anything. It was to tear it up root and branch and completely enact something new. So that cannot be modified. And then as to waive, you've got to read that analysis a few times to understand what the Court is doing.

But what they say is, “Look, the Secretary hasn't just -- even if you take the most expansive view of waiving provisions, that's not what happened here because the HEA does not actually have a provision that says, ‘You shall repay.’” That's sort of part of the loans themselves.

And so what the Secretary did was there's these very intricately finely wrought provisions of the HEA that say, “Look, there is loan forgiveness. There are times when the Secretary can cancel debt,” but they're very specific. You have to be a teacher. You have to have serious financial hardship. There's a whole list of them in the HEA.

And so what the Secretary says is, “Well, I'm just waiving all of the limitations.” And so all that's left in the text is, “I can waive.” But the Court said, “Well, even if you buy into that expansive interpretation of what waiver allows the Secretary to do, that's not what he did here.” He did that, and then he added or changed those program features and said, “Well, I can waive, but I'm only going to waive if you make $125,000 or less and other eligibility criteria.”

So that's where the Court said, “This wasn't waiver. This was waiver plus the complete writing of a statute by an executive branch official and not by Congress, and that's not allowed. Now, in the dissent, Justice Kagan says, “Look. You're basically tearing the statute apart to try to get to this answer. And I think you need to take “waive” and “modify” and read them together. And when you do that, you get some greater power than what those words might mean individually.”

And she makes this point as I said before. How can it be that if you have the power to get rid of something completely or to make a minor change, why can't you do something in the middle? And the middle is what she calls, “Well, it's not just loan cancellation for everybody. It's something less than everybody. And therefore, it falls in the middle. And therefore, it's allowed.” And so that's sort of the textual battle back and forth.

Now, what's interesting, of course, is there's not so much to go on in the statute. There's only a few words that the Court is analyzing. And so the analysis is somewhat shorter than you might expect in many Supreme Court opinions. But, of course, the text that they're working with is somewhat shorter. So that's the textual back and forth.

One thing I'll say about this, Sam, it may dovetail. I know you want to ask about major questions. It's very interesting. In Justice Kagan's dissent when she switches to the rebuttal of major questions, she says, “Well, you know the tell that their textual analysis is no good is that they have to -- the majority must rely on the major questions doctrine.”

But if you look at how the majority introduces the major questions, what they say is, “Look, we're done. We've done the textual analysis.” But the solicitor general at oral argument said, “We should look to congressional purpose as a reason to bless what the Secretary has done here.”

And responding to that, the Court said, “Well, even if there's a good purpose, the question we must answer as a Court is, ‘Who gets to decide whether that good purpose should be met?’ Is it the executive or Congress?” And then from there, the Court says, “As we said in West Virginia, there's good reason to believe that Congress does not typically delegate the whole of congressional power in an area to the executive to simply become essentially a monarch and both right and then enforce the law.”

And so it's subtle, but the Court is doing something a little different with the major questions doctrine here—really using it as a response to the party's arguments about purpose than saying, “Well, this is why we're right” or, “This is how we get to the answer.” No. They got to the answer through a textual analysis and then said major questions is confirmatory of that or at least rebuts the party's arguments. So that's the textual back and forth.

Sam Fendler:  Jesse, you touched on it right at the end there, but I want to ask you directly. Is it safe to say that the majority opinion settled this exclusively on textual grounds?

Jesse Panuccio:  I think so. I think you can -- I mean, if you read the opinion—and let me see if I can find it quickly—there, Chief Justice Roberts goes through the textual analysis and says it's not allowed. And then his transition paragraph says -- at oral argument, the solicitor general said, “We should look to congressional purpose.” And then the Court discusses West Virginia v. EPA.

So I think it's hard to read the opinion as Justice Kagan says it should be read, which is, “Well, they must rely on major questions to get to their answer.” I do not think that's what the Court did. I think major questions helped rebut an argument of the parties and confirm the reading, but I don't think it was necessary to the textual analysis of the Court.

Sam Fendler:  So then insert, of course, Justice Barrett's concurrence. And I did want to ask you about this because I'm personally very interested in the major questions doctrine. And when President Biden began implementing this plan in earnest, I remember that I had a conversation actually with my dad and my brother. And I said, “You wait. This will be in front of the Supreme Court. And the major questions doctrine is going to be involved in some way, shape, or form.”

Now for me, it wasn't some kind of deep analysis. It was a kind of “I know it when I see it” standard or moment. But, of course the Court can't operate that way. And so when I read Justice Barrett's concurring opinion, it seemed to me as sort of the first attempt post-West Virginia v. EPA to put a finer point on this doctrine to make some sense of it, maybe to entrench it further in precedent, but I'm not sure. What do you think the main purpose of her concurrence was?

Jesse Panuccio:  Well, I think it's that. I mean, Justice Barrett says in the opening there -- what she says is there's been -- basically, “I'm a textualist. There's been a lot of criticism that the major questions doctrine cannot be squared with textualism because it basically forces courts to override what the plain meaning of the text might be based on this presumption about Congress could not have possibly meant that.” And so if you're an honest textualist, you can't possibly believe that.

And she's responding to that. And she's saying, “No, I don't see it that way at all. I don't think it is an outcome-determinative doctrine. I think it is a doctrine about context. I think it helps textualism. It helps us understand the context in which laws are enacted and what language means.” And it is a scholarly treatment of that.

Perhaps you can take the professor out of Notre Dame. But there's some phrase there that's not quite right. But I think the scholarly roots of Justice Barrett are coming through in that opinion, and she's trying to sort of give the grand theory of major questions doctrine and how it is reconciled.

Now, one thing I'll disagree with slightly, Sam, that was maybe a premise of your question, which is that this doctrine or this move, if you will, about thinking about how Congress delegates and what the words are likely to mean sort of sprang up for the first time in West Virginia v. EPA. But of course, that's not true. And if you go back to that case, the Court cites back to Brown and Williamson and other cases where this kind of thinking, this kind of analysis has played a role in the past.

Now, of course, if you're not careful about that and rigorous, I suppose anybody can cite any doctrine or canon for any purpose they want. But I think what Justice Barrett is trying to say is, “No. Done the right way carefully, this doctrine or this manner of analysis is perfectly reasonable for a good textualist.” And I think that's the purpose of her concurrence.

It's interesting to me no one else joined that. So it's possible that this has been weighing heavily on her mind. And this is her attempt to start airing her views. And who knows. Maybe those will one day find their way into majority opinions.

Sam Fendler:  Certainly. And to your point, there's no question that this major questions doctrine has some deeper roots to it—some longer precedential history. It also seems deeply intertwined with sort of a mundane separation of powers analysis.

And to that end, the Court in this opinion asserted that if Congress intended to grant the Secretary of Education the authority to spend nearly half a trillion dollars, then it needed to have spoken more clearly. At least that's what I -- one piece of what I take them to be saying. I don't want to ascribe any motives to them.

But do you think this seeming pursuit of the protection of separation of powers, is this a rightful action by the Court, or, as the dissenters have it in this case, is it a usurpation of judicial authority—or rather of legislative and executive authority—for the judiciary's sake?

Jesse Panuccio:  Well, I guess I won't answer that directly because I have maybe a slightly different view on this. My view of a lot of Supreme Court doctrine—not a lot of it, but certain Supreme Court doctrines is when there's sort of an original sin in some doctrine where the Court ignores it, the pressures that animate that doctrine are still there and need to be dealt with in some other way.

So the fact that the Supreme Court has said now for over a century, “There is no delegation from Congress that we will invalidate,” that there really is no workable nondelegation doctrine, creates obvious pressures when Congress enacts looser and looser and looser statutes, to the point where the executives exercise and attempts to exercise power under those very lean and very capacious seeming statutes become so great that you can't look past the separation of powers problems that then pop up sort of the, you know, what the Founders would have called the tyrannical executive.

And so if the Court would do its job and have a robust non-delegation doctrine, then I think we wouldn't be having many of these fights about the major questions doctrine. It is a version of non-delegation. It is now an interpretive version of that. And so I think that's why this is playing out because the executive is becoming ever bolder, and Congress is becoming ever less responsible. And then you have these problems that our Constitution just cannot abide.

We cannot have a system of government where the executive simply writes the laws, creates whole new programs from whole cloth, and says, “Well, this is fine because here's a word in the statute that says I can do it.” And so I think that's why you're seeing these tensions.

Sam Fendler:  Jesse, you touched on it a bit at the end of your opening remarks, but we have a question from the audience about the administration -- the Biden administration's next steps.

Jesse Panuccio:  Okay.

Sam Fendler:  Do you think that they're going to -- I think there's something new in the works. What do you think comes next? Are they going to continue a new version of what we saw in this case?

Jesse Panuccio:  Well, they've announced that they will. First of all, the president had a press conference and said, “Essentially, nothing changes. I've been told by the United States Supreme Court that I am overstepping my bounds.” And as I read what the administration said is, “We don't care. We're going to try this a different way.”

The way that they say they're going to try it is enter negotiated rulemaking under the Higher Education Act. But the verbiage of the Higher Education Act is very similar. It's the word “waive.” And given what the Court has already said about the Higher Education Act, I think it's going to be impossible for them to come up with a rationale that is coherent and lawful.

And as I said, this is being -- they've already tried this. They're trying it out in the Ninth Circuit in the Sweet v. Cardona case. And so the question is being litigated there. But that's what they say the next steps will be.

You would think the obvious response would be, “Oh, the Supreme Court of United States said, ‘This is for Congress. Let's go to Congress.’” But the way our government works these days, that is not a popular method of policy creation. The executive keeps pushing until it gets what it wants or keeps losing in Court. I predict this is doomed for failure.

Now, if you're a cynic, you believe that the very smart lawyers in the Biden administration know full well there is no legal way for them to do this and what they're really doing is teeing up a campaign issue so that they can say, “Well, the Courts keep striking down our attempts to cancel loans for 43 million people” when, of course, if there was some honesty there, the idea would be, “We keep breaking the law, and we're not willing to take the political fight to the place that makes policy, which is Congress.”

Sam Fendler:  One more question from the audience. “If some new plan does come out of the Education Department or otherwise in the executive branch, does the Supreme Court have to wait for a case to work its way through lower courts, or can it simply step in and say, “No, you can't do this?”

Jesse Panuccio:  The Supreme Court needs to wait for a case or controversy to get to it. Now, well, how does a controversy get to the Court now? It can get there through full merits adjudication where you have a district court opinion, and then an appeal and an opinion and a cert petition.

But you also have what some people call now the shadow docket. I don't really like that term. It's called the emergency docket. But it is people -- litigants attempt to get the Supreme Court to stay lower court rulings, and there are factors for that. So sometimes, that's a way the Court may get to a question quickly.

Here, it was a version of that where you had this Eighth Circuit stay and the solicitor general brought it to the Court. But the solicitor general said, “Well, why don't you just take the whole case on the merits and argue it now?” That's called cert before judgment. It's pretty rare. I believe it happened last perhaps in the Census case a few years ago. It does happen in questions of great national importance.

So I suppose it could get to the Court very quickly again. From the time of the announcement of the policy, August 2022, to a decision of the United States Supreme Court June 2023—less than a year—that is exceptional for most legal questions. And so it could happen again, but we'll have to see. And we'll have to see how the administration -- what acts they try to take because they might try to force the issue and move things quickly, and then it would get to the Court more quickly.

Sam Fendler:  Slight pivot here, Jesse. There was some finger pointing inside of the opinion about pursuing policy preferences by justices on either side of the question. What do you make of those accusations?

Jesse Panuccio:  Well, it's a refrain as old as the Court, which is, “If you don't agree with my view of the law, then you must be doing something lawless and pursuing your policy ends.” I think the Chief Justice -- as I mentioned in my presentation, the Chief Justice takes some umbrage at this in the last paragraph of the majority.

Justice Kagan's dissent is very pointed on this issue. It uses some very strong language for her colleagues. And so I think the chief was responding to that a bit. What I found interesting about that criticism in the dissent, of course, is what I mentioned, which is that's all well and good until you get to the last two lines of the dissent, where the chief lament appears to be, “The loan program that we favor for 43 million people. The consequence will now be that it can't happen.”

And so that's an interesting way to close a dissent whose chief criticism is, “Don't look to policy. Just look to law.” So make of that what you will. But yes, it is a back and forth. And look, it's June in the Supreme Court. The last 10 opinions of the term always have at least 5 that have some version of this finger pointing back and forth.

Sam Fendler:  No question. Well, this is a very interesting case certainly with the textual analysis, the question of the major questions doctrine. Of course, as you mentioned, the standing issue will probably reverberate beyond the confines of this opinion. But I think we've covered a lot of really good ground. I appreciate you answering the audience's questions. I appreciate you answering my questions. Is there something that you'd like to leave the audience with before we sign off?

Jesse Panuccio:  Well, I just want to say, Sam, I appreciate you and The Federalist Society and everybody who joined today or will listen later. I find, as I said, these teleforums helped me greatly in just keeping up to speed on what's happening both in the Supreme Court and other courts. So thank you for doing that. And we'll see what happens next.

I know we've not heard the last of this issue. So for those who are interested, keep up with what the Department of Education does in rulemaking and what happens out in the case in the Ninth Circuit. And perhaps we'll be back sometime in the future, Sam, to discuss it further.

Sam Fendler:  Excellent. Well, on behalf of The Federalist Society, I want to thank you for the benefit of your time and your expertise today. We greatly appreciate it. I want to thank our audience as well. We greatly appreciate your participation.

Please check out our website, fedsoc.org, or you can follow us on all major social media platforms at FedSoc to stay up to date with announcements and upcoming webinars. Thank you all once more for tuning in, and we are adjourned.

 

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