A breaking-news emergencies Constitutional Crisis Hotline podcast with Julie Suk (Apple link here) right after the oral arguments in the Biden Student Debt cases: Nebraska v. Biden and Dept of Education vs. Brown, joined by:
Liza Goitein, senior director of the Brennan Center for Justice’s Liberty & National Security Program, and a nationally expert on presidential emergency powers. She wrote immediately after the Biden plan was announced for the Washington Post: “Biden Using Emergency Powers for Student Debt Relief? That’s a Slippery Slope,” linked here.
And Nestor Davidson, Albert A. Walsh Chair in Real Estate, Land Use, and Property Law; Faculty Director, Urban Law Center.
Jed explains his amicus brief (and essay proposing an “Emergency Question Doctrine” to limit the Major Question Doctrine), which Justice Kavanaugh mentioned in oral argument, linked here.
I think our bottom line is that SG Elizabeth Prelogar was so outstanding on standing, she may have snatched victory from the jaws of defeat, especially on MOHELA and Missouri, the best case for the plaintiffs. But we agree that, other than Justice Barrett, the other conservatives seemed only mildly concerned by these murky facts. So it looks like five or six Justices get to the merits and if they do, it is clear they would strike down the program — but standing is still far from clear, and maybe Prelogar persuaded Barrett enough for Barrett to pull another conservative with her?
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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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