One measure of a President’s power is the effect he has on the judiciary. President Biden has appointed 105 Article III judges, outpacing Trump, Obama, and Bush. Still, there is no denying Trump transformed the judiciary during his term in office. A study of the effect of Reagan judges concluded that there was no major difference between Reagan judges and those appointed by other republican presidents. But Trump’s judges are a whole different matter.
Increasingly they are employing a judge-made rule of statutory construction, the “Major Questions” Doctrine, to wrest authority over matters of consequence from Congress and the executive branch. Previously, the Major Questions Doctrine had been “a narrow exception to federal courts’ traditional deference to regulatory agencies in interpreting the statutes they administer.” However, since 2020, court filings employing the Major Questions Doctrine have risen sharply.
And why not? The Major Questions Doctrine is right in line with this “conservative” Court’s robust appetite for activism. Whenever the political or economic implications of an issue being regulated by an agency are too consequential, under the Major Questions Doctrine, unelected courts review the regulation at issue de novo (anew), without giving any deference to the agency’s interpretation.
Recall Steve Bannon proclaimed early and often that the Trump administration intended to “deconstruct the administrative state.“
On February 28th SCOTUS is hearing two cases that challenge President Biden’s student debt forgiveness program. The challenges are based in part on the Major Questions Doctrine (which is fairly tricky since “a central purpose of the HEROES Act is to authorize the Secretary to grant student-loan debt relief to mitigate economic harms borrowers face from national emergencies.”) If the Major Questions Doctrine is used to overturn this program, that will be further evidence of SCOTUS’s ongoing usurpation of power from its coequal branches.
What is to be done?
Urge President Biden to continue to fill seats on the federal bench.
Urge Congress to legislate with the application of the Major Questions Doctrine in mind. If “Congress wants an agency to decide issues in an area courts would likely consider to be of vast economic and political significance, Congress should clearly specify that intention in the relevant underlying statute as opposed to relying on vague or imprecise statutory language.”