How the Supreme Court pulled a right-wing doctrine 'out of thin air' to 'invalidate' Biden’s policies

18 July 2023

Back in the 1990s or 2000s, legal scholars were not using the term "major questions doctrine" in connection with the U.S. Supreme Court. But in recent years, the concept has had a strong influence on the decisions of the Roberts Court's radical-right supermajority.

The "major questions doctrine," a concept promoted by the right-wing Federalist Society, essentially argues that if a presidential administration or a government agency wants to decide something of national importance, there must be clear congressional authorization.

The New York Times' Adam Liptak examined the rise of the major questions doctrine in a report published on March 6. And journalist/author Ian Millhiser, in an article published by Vox on July 17, offers some examples of how the doctrine is being applied by the Roberts Court.

"In the less than three years since President Joe Biden took office," Millhister explains, "the Supreme Court has effectively seized control over federal housing policy, decided which workers must be vaccinated against COVID-19, stripped the EPA of much of its power to fight climate change, and rewritten a federal law permitting the secretary of education to modify or forgive student loans. In each of these decisions, the Court relied on something known as the 'major questions doctrine,' which allows the Court to effectively veto any action by a federal agency that five justices deem to be too economically significant or too politically controversial."

Millhiser adds, "This major questions doctrine, at least as it is understood by the Court's current majority, emerged almost from thin air in the past several years. And it has been wielded almost exclusively by Republican-appointed justices to invalidate policies created by a Democratic administration."

The journalist/author notes that the Roberts Court "did not invoke" the major questions doctrine once when Donald Trump was president but has used it "aggressively" during the Biden Administration.

"This doctrine is mentioned nowhere in the Constitution," Millhiser notes. "Nor is it mentioned in any federal statute. It appears to have been completely made up by justices who want to wield outsize control over federal policy. And the implications of this doctrine are breathtaking. In practice, the major questions doctrine makes the Supreme Court the final word on any policy question that Congress has delegated to an executive branch agency — effectively giving the unelected justices the power to override both elected branches of the federal government."

Vox's full article is available at this link.

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