The Supreme Court Says Laws Aren’t Real

“I may have views on the fairness of that and mine don’t count,” Roberts continued. “We like to usually leave situations of that sort, when you’re talking about spending the government’s money, which is the taxpayers’ money, to the people in charge of the money, which is Congress.” He then asked if that should be part of the court’s consideration when it evaluated the Biden order under the “major-questions doctrine,” a Roberts Court invention that gives the justices a freewheeling veto over policy decisions if the court thinks Congress didn’t “speak clearly enough” in an authorizing statute. This “doctrine” has yet to be used against a Republican president.

Nevertheless, the answer to Roberts’ question was, apparently, “yes.” The Supreme Court struck down the order by invoking the major-questions doctrine and brushed aside the dubious standing grounds. (MOHELA, which can bring lawsuits on its own accord, pointedly declined to do so here.) Paradoxically, the Biden administration received the most blame for the defeat during the next election, even though it was the court that ultimately blocked the biggest push for student-debt forgiveness.

To sum up: In Robertsworld, a Democratic president can’t use a federal law that lets the Department of Education “waive and modify” student loans during a national emergency—in this particular case, the COVID-19 pandemic—because Congress was too vague about it for the chief justice’s liking. (The trick here is to selectively treat broad statutes as vague ones.) But when Congress says, “Hey, we’re going to create a bunch of programs for the executive branch to carry out, we’re going to house them in the Department of Education, and we’re also going to create strict limits on how you can reorganize them,” those laws are…merely advisory for Republican presidents, I guess?

If the majority has any counterarguments in McMahon vs. New York, they do not provide them. If they have a plausible justification for lifting the lower court’s injunction—maybe on standing, maybe on statutory interpretation, maybe on the equities—that is not simply “Trump gets to win,” they did not take a break from their summer vacation to offer it. “It is emphatically the province and duty of the judicial department to say what the law is,” John Marshall wrote in Marbury v. Madison. Apparently that province and duty does not extend to the shadow docket.