- The Biden administration Friday asked the Supreme Court to intervene in litigation about student loan forgiveness.
- Federal courts have already struck down or paused several of Biden’s regulatory efforts.
- A legal theory accepted by the Supreme Court in a decision last term could hamper new major rules.
WASHINGTON – With Republicans taking control of the House of Representatives, President Joe Biden’s chances of pushing his agenda through Congress are slim. That’s a hurdle most first-term presidents encounter after the midterm elections.
But Biden faces another barrier that could close off a path long used as a backup by his predecessors: Federal courts, including the Supreme Court, are clamping down on attempts by federal agencies to make major policy moves without authorization from Congress.
Going it alone – with a pen-and-phone strategy, as President Barack Obama described it in his second term, or declaring a national emergency to pay for a border wall, as President Donald Trump did in 2019 – is becoming a tougher sell in court.
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Federal courts have already put Biden’s $400 billion plan to forgive student loan debt on pause. The administration appealed one of those cases to the Supreme Court Friday, which means the justices may have another opportunity to wade into the issue.
An appeals court last month, meanwhile, ruled against an Obama-era policy that protects undocumented immigrants brought to the United States as children. The Supreme Court, in January, halted Biden’s vaccine-or-testing mandate for large employers. And in June, the high court shot down an Environmental Protection Agency effort to curb power plant emissions.
Those decisions follow a yearslong push by conservatives to curb the “administrative state,” arguing agencies should have less power to act unless there’s clear congressional approval. The Supreme Court bolstered that effort in June by relying on the “major questions doctrine” to decide a high-profile climate change case.
“If the administration is going to advance many of its priorities, it’s going to have to do so through the regulatory process, and that is going to invite ‘major question’ challenges,” said Ian Gershengorn, a veteran Supreme Court lawyer. “Anytime an agency is looking to push the boundaries a little bit … this doctrine is going to come into play.”
Supreme Court signals skepticism of ‘major’ agency regulations
Republicans captured the House majority late Wednesday, more than a week after the Nov. 8 elections, meaning that chamber will be at odds with the White House at virtually every turn. Presidents of both parties have often shifted to agency regulations and executive actions when they’re unable to move an agenda through Congress.
But under the major questions doctrine, courts are supposed to be skeptical of those regulations if they have a major impact on the economy or are a matter of great “political significance.” The meanings of those terms are not entirely clear, and experts are still debating how and when, precisely, courts are supposed to invoke the principle.
If the Biden administration tries to revive Obama-era rules on net neutrality, for instance, that could face a challenge under the doctrine. Under those rules, imposed and then dropped by the Federal Communications Commission, internet providers such as Verizon and Comcast would be barred from favoring some sites over others.
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