In striking down the Biden Administration’s student-loan forgiveness plan, the Supreme Court’s conservative majority has paved the way for further constraining the power of federal agencies, according to Rudman Center Director John Greabe.
“We are a country right now that is peeling back federal power. There's no question about it. Some of the big decisions of this term really made clear that this court is intent on disempowering federal agencies,” Greabe said during a SCOTUS Wrap-up edition of The Legal Impact. (Listen to the podcast here. Quotes in this piece have been edited slightly for clarity and length.) “What is likely to happen is that there is going to be more and more regulatory authority pushed down to the states. This is a dynamic that's going to reappear time and time again.”
In the Biden v. Nebraska case, a 6 – 3 majority invoked the “major questions doctrine” in ruling that the Department of Education does not have authority to cancel about $430 billion in student debt.
“The major questions doctrine holds that the court is going to give a very narrow reading to statutory grants of authority from Congress to federal agencies when federal agencies undertake measures that have profound economic or political effects in the country,” Greabe said. “It's basically a rule of construction that says federal statutes are going to be narrowly construed.”
(Greabe has commented extensively on SCOTUS decisions in recent months, participating in the annual American Association of Law Librarians annual meeting and teaching a class at the Learning Institute of New England College. In the New Hampshire Bulletin, Greabe addressed the Moore v. Harper decision.)
“This major questions doctrine was used to strike down efforts to require that people at certain businesses be vaccinated, or else wear a mask and be tested once a week, during COVID. It struck down a plan to apply the Clean Air Act to try to prompt electric producers to move to more clean energy sources,” he said.
Justice Elena Kagan, joined by Justices Jackson and Sotomayor, criticized the majority’s use of the major questions doctrine as “a way for this Court to negate broad delegations Congress has approved, because they will have significant regulatory impacts.”
U.S. Supreme Court, interior. CREDIT: Library of Congress, Prints & Photographs Division, photograph by Carol M. Highsmith
Greabe expects the “major questions doctrine” will come up again when the Court considers whether to overrule its landmark 1984 Chevron v. Natural Resources Defense Council decision, which found that courts should defer to a federal agency’s interpretation of ambiguous statutes if deemed reasonable.
An overruling of Chevron could have major implications for the power of federal agencies to enforce environmental rules, for instance.
“I think the power of the administrative state is going to be severely curtailed by this court,” Greabe said. For instance, he said, in its upcoming term the court may hold that the funding mechanism used for the Consumer Financial Protection Bureau is unconstitutional.
“There are lots of federal agencies that are funded in that way, independent agencies that are designed to be more independent of the political branches. That could have profound effects. The movement in the area of administrative law is significant.”
Other major decisions covered in The Legal Impact:
Students For Fair Admission, Inc., v. President and Fellows of Harvard College
In a 6 - 3 decision, with liberal members dissenting, the Court rejected affirmative action at colleges and universities around the nation.
“As a consequence of this decision, both state institutions and private institutions such as Harvard are barred from explicitly using race as a criterion in constituting incoming classes in education,” Greabe said.
There are some roadmaps on how to handle this development, Greabe said. “New Hampshire has a statute on the books that already barred the university system, our schools within the university system, from using race,” he said. “Michigan and California and Texas changed their law so as to ban the use of affirmative action, so those jurisdictions have gone in other directions in terms of constituting classes.”
National Pork Producers Council v. Ross, Secretary of California Department of Food and Agriculture
In a 5-4 decision that did not adhere to traditional ideological divisions, the Court upheld California’s Proposition 12, which dictates how sows must be housed in order for the meat of their offspring to be sold in California.
“The claim was made that what California was trying to do was to impose an animal welfare law on the rest of the country because more than 99% of pork producers are outside the state of California and that California was effectively shutting its market to these producers unless they house sows in a way that California specifies and that is not the industry standard,” Greabe said.
The Court ruled that Proposition 12 does not violate the doctrine known as the dormant commerce clause – the idea that Congress’s power over interstate commerce, as delegated in the Constitution, precludes states from passing laws that interfere with that commerce.
“It goes all the way back to one of the principle forces at the founding, which was to stop the states from engaging in economic warfare with each other,” Greabe said.
The dormant commerce clause also seeks to protect out-of-staters from regulation by states that puts them at a disadvantage vis-a-vis their own residence, Greabe said. “These sorts of doctrines could well be in play as we turn to the next generation of laws that seek to regulate in controversial areas like abortion or immigration, for example,” he said.
Moore v. Harper
In a 6 – 3 decision that included both conservative and liberal justices, the Court rejected an extreme version of "independent state legislature theory,” which maintains state legislatures can make rules for federal elections with no oversight from state supreme courts under state constitutions.
The dispute began as a challenge to a congressional map adopted by North Carolina’s Republican-controlled legislature in early November 2021. Democratic voters and non-profits argued that the map was drawn to favor Republicans.
The Supreme Court affirmed the role of state courts in ensuring that election rules established by state lawmakers follow their state’s constitution. But it also issued a warning to state courts.
"In interpreting state law in this area, state courts may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures by Article 1, Section 4, of the Federal Constitution,” Chief Justice John Roberts wrote in the majority opinion.
303 Creative LLC v. Elenis
In a 6 - 3 decision, the conservative majority ruled in favor of a web designer who said it would violate her First Amendment speech rights to be compelled to design a website for a same-sex couple.
In challenging a Colorado anti-discrimination law, Denver-area web designer Lorie Smith cited her Christian beliefs against gay marriage.
“This is the first time that the Court has held that businesses, which are places of public accommodation, can exempt themselves,” Greabe said. “The case was based on free speech principles, but it won't be long until religious persons make a similar claim under the Free Exercise Clause and say, for religious reasons, even though I'm a place of public accommodation -- I'm a hotel, I'm a restaurant, I'm a business owner -- I don't want to do business with certain types of people because of my religious beliefs.”
