My amicus brief in the Biden Student Debt Cases: An “Emergency Question” Doctrine to replace MQD 3.0

Last week, with the outstanding help of Brian Pandya of Duane Morris, cc’ed here, I filed an amicus brief in the two Biden Student Debt cases scheduled for argument Feb. 28 (Biden v. Nebraska and Brown v. Department of Education).

I support broad student debt waivers and long-term reform. However, in a constitutional democracy, these reforms must be done the right way, either by legislation directly or by past statutes that delegated this broad power to the executive branch. The Biden administration clearly used the Covid emergency as a pretext to circumvent procedural requirements and to create a program far broader than the Covid explanation, when causation was required under the statute; and then, knowing that the program was likely to lose if challenged by plaintiffs in the courts, they excluded or reduced benefits from the program to 2 million Americans. And yet the Department of Education still failed to dodge their standing problem, as demonstrated these two sets of plaintiffs (the states and the private plaintiffs who were denied

The three main arguments of the brief are:

1. Broad interpretation of standing is important for the rule of law. The Biden administration’s sudden self-serving argument for “immediacy” of injuries, extracted from a Scalia footnote from three decades ago, is a dangerous change from the established rule of “fairly traceable.” It is inconsistent with precedent, and inconsistent with the indirect-causation standing rules that allowed progressives to challenge the worst policies of the Trump era (the Muslim Ban, the rescinding of DACA, the citizenship question on the census, the Emoluments Clause litigation, among others).

2. The abuse of emergency powers is dangerous, and even if one supports this policy, it must follow the rule of law, and not set a precedent for worse abuses of emergency powers.

3. Balancing the Imperial Executive with the Imperial Judiciary with a more modest “emergency question” doctrine:

The new version of the “major question doctrine” (the new “clear statement”) is the wrong approach to emergency powers and to judicial aggrandizement generally. Congress has to use broad and unclear delegations to give the executive branch appropriate flexibility to respond to emergencies, and a clear statement rule would undermine the federal government’s ability to rely on existing statutes or to rely on new statutes that have to remain open-ended. I suggest an alternative that balances the problem of the Imperial Executive with the problem of the Imperial Judiciary.

This is what I call the “emergency questions” doctrine, continuing the more established common sense parts of the “major question” doctrine:

A. purposivism over narrow texualism;

B. no Chevron deference to the executive branch.

C. It replaces the extreme “clear statement” rule (which I call the MQD 3.0) with a focus on the means-ends fit as a check against pretextual and overbroad uses.

The amicus brief is here:

I tried to warn the Biden administration of these problems early on, when there was still time to fix them, in this essay in the Atlantic, Sept. 4th, 2022:

“Biden’s Student-Debt Rescue Plan Is a Legal Mess. The good news is that there’s still time to fix it.”

I’m extending this Emergency Question Doctrine framework as part of a legal academic essay, linked here in a very prelimiary draft.

Beau Baumann has a generous and fair critique here:

“Should we all be mad at Jed Shugerman?”

I think his answer is “no, even if he is being hopelessly naive, and he is standing up on principle when those principles have some deeply flawed assumptions and obvious slippery slopes towards judicial aggrandizement.” And he’s probably right.

As I note here, his “rosebud” critique of my naive nostalgia is spot on, and quite on the nose with my cinematic tastes. Citizen Kane is one of my favorite movies of all time, and its theme is the tragedy of nostalgia.


Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

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