OP-ED: On student loan forgiveness, Amy Coney Barrett makes a major statement
WASHINGTON — President Biden’s attempt to spend $430 billion through student loan forgiveness showed Trumpian insouciance regarding legality. By ruling 6-3 against it last week, the Supreme Court unremarkably buttressed the separation of powers by protecting Congress’s power of the purse.
But this decision should reverberate throughout the administrative state’s sprawl because Justice Amy Coney Barrett’s concurring opinion persuasively defends the court’s major questions doctrine (MQD). The MQD requires Congress to speak clearly if it intends to authorize executive agencies to exercise powers of vast economic and political significance.
Biden’s aim was a regressive transfer of wealth to a privileged minority (more than one third of Americans over 25), college graduates who have average lifetime earnings of $1 million more than people without bachelor’s degrees. The folly of Biden’s policy was not the court’s concern. The scale of it, however, was relevant to the MQD.
Biden claimed to find authority for forgiveness in a post-9/11 law passed to help members of the military by authorizing the executive branch to “waive or modify” terms of student financial assistance “in connection with a war or other military operation or national emergency.” As Chief Justice John G. Roberts Jr. noted, calling loan forgiveness for 43 million Americans “modifying” the terms of assistance is akin to saying the French Revolution “modified” the French nobility.
Roberts relied on the law’s text more than the MQD. But during February’s oral arguments about loan forgiveness, Roberts said if so much money is to be spent, affecting the obligations of so many Americans, “that’s something for Congress to act on.”
(Congress did act — by rejecting forgiveness. Between 2020 and 2022, Congress passed $5 trillion in pandemic relief bills, one of which suspended student loan payments, but none authorized forgiveness. So, Congress had spoken clearly by not delegating forgiveness authority.)
Disregarding the Roberts opinion’s reticence about the MQD, Justice Elena Kagan, in dissent, renewed her attack on it. Being intellectually consistent, she is as spirited in opposition to the doctrine as she generally is in defense of the core progressive vision: executive agencies run by experts enjoying large delegations of power from a deferential Congress. Dissenting from the court’s curtailment of Biden’s discretion, Kagan called the major questions doctrine a “made-up” rule. Well, yes.
So is the exclusionary rule (prohibiting the government use of illegally obtained evidence in criminal trials). The court also “made-up” the Miranda rule (requiring police to advise detained people of their rights to counsel and to remain silent). Chevron deference, admired by progressives and Kagan, is a made-up part of administrative law (federal courts shall generally defer to executive agencies’ interpretations of ambiguous statutes). Progressives’ “aggregation doctrine” gives the federal government an unenumerated power over individuals whose personal activities (e.g., growing wheat or pot for personal consumption) do not affect interstate commerce.
These rules do not “magically appear” (Kagan’s language disparaging the MQD). Constitutional law is partly a tapestry of rules made up to apply the Constitution’s spare language in myriad contexts. The question always is: Is a particular rule conducive to, or implied by, constitutional values (e.g., due process) or imperatives (e.g., separation of powers)? Intelligent people can disagree about a particular rule, but dismissing it as “made-up” settles nothing.
The MQD is by now an established precedent that progressives would, if they could, overturn. In her concurrence, Barrett explained why the doctrine is common-sensical regarding “the manner in which Congress is likely to delegate a policy decision” of great magnitude.
The MQD “situates [a law’s] text in context,” Barrett wrote, because the meanings of words depend on the circumstances in which they are used. Context is “relevant to interpreting the scope of a delegation” of power from Congress to an executive agency. Barrett said the expectation of congressional clarity regarding a delegation flows from the premise that Congress normally intends to make major decisions itself rather than leaving them to agencies.
The constitutional structure is, she noted, “part of the legal context framing any delegation.” The document vests “all” legislative power in Congress, so “a reasonable interpreter would expect it to make the big-time policy calls itself, rather than pawning them off to another branch.”
Progressivism encourages pawning off. But because, as Barrett wrote, “the Constitution gives Congress the reins,” a reasonable textualist interpreting statutes should generally be skeptical of executive claims to extravagant statutory powers.
The MQD, as explained by Barrett, has emerged organically from judicial reasoning about executive overreaching that is encouraged by Congress underperforming its duty to be clear. MQD’s excellent result is restored constitutional equilibrium.
George F. Will is a columnist for The Washington Post.