Fed Reg - MQD/Chevron (Pt 2) Flashcards
Biden v. Nebraska - Facts
- National Defense Education Act of 1958: Congress authorized the first federal student loans up to a total of $1,000 per student each year
- Outstanding federal student loans now total $1.6 trillion extended to 43 million borrowers.
- HEROS Act - said Sec of Ed can waive or modify any statutory or regulatory provision applicable to student financial assistance programs in a national emergency (a term defined by Pres.)
-> note that this was expanded from original grant of specific waiver authority after 9/11 - Sec of Ed establishes 1st comprehensive student loan forgiveness program -> canceled $430 billion in debt, erased debt for 20 mill borrowers
HEROS Act - Language
- Secretary “may waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under title IV of the [Education Act] as the Secretary deems necessary in connection with a war or other military operation or national emergency.”
- Secretary may issue waivers or modifications only “as may be necessary to ensure” that “recipients of student financial assistance under title IV of the [Education Act] who are affected individuals are not placed in a worse position financially in relation to that financial assistance because of their status as affected individuals.” §1098bb(a)(2)(A).
Biden v. Nebraska - MQD application
- politically significant? yes
- econ? yes ($430 billion)
- doesn’t really intrude on state law though
- history? Says Secretary has never before done anything on this scale
- Congress has never passed loan forgiveness program
- also invokes something new - Pelosi had said Pres didn’t have the power to do this
Biden v. Nebraska - Pelosi + Prof’s Thoughts
- Prof pointed out absurdity of invoking the Pelosi quote - she is only 1/435 of the House, but court uses it to say Congress doesn’t think it has the authority
- also complicated by the fact that, at the time of the statement, she was answering a reporter’s question + trying to motivate Congress
Biden v. Nebraska - Barrett Concurrence (General Tenor)
- calls MQD a canon of construction
- she’s in the no tada camp (opposite of Gorsuch - Barrett is trying to say they’re NOT doing anything big or new)
- says not all factors need to be present
Biden v. Nebraska - Barrett Concurrence (Specifics)
- “[s]keptical of mismatches” btw broad “invocations of power by agencies” and relatively narrow statutes that purport to delegate
- agency regulating outside its wheelhouse = another sign MQD
- also MQD when “an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy.’”
- acknowledges some context clues from past MQD cases are absent (e.g., not case where agency operating entirely outside usual domain) but MQD not an on-off switch that flips when a critical mass of factors is present… just reflects common sense as to manner in which Congress is likely to delegate a policy decision of such econ + political magnitude
- she’s basically arguing throughout that MQD is a sort of guiding principle - not rejecting the text under her view, just adopting the most reasonable meaning in light of context (which feels weird given they’re all textualists at other times)
Biden v. Nebraska - Quote Summarizing Barrett’s Take
- “In each case, we could have ‘[p]ut on blinders’ and confined ourselves to the four corners of the statute, and we might have reached a different outcome. Instead, we took ‘off those blinders,’ ‘view[ed] the statute as a whole,’ ibid., and considered context that would be important to a reasonable observer. With the full picture in view, it became evident in each case that the agency’s assertion of ‘highly consequential power’ went ‘beyond what Congress could reasonably be understood to have granted.’”
-> feels VERY weird to me - these are the same people who’ve been saying for ages need to stick to the text, but they’re fine to diverge completely when it suits them
Litigation + Difficulty of Introducing Laws
- got mentioned in guest speaker convo
- concept of how you engage w/ Congress influences litigation strategy -> introducing a law to confirm a certain law can’t be applied in a certain way would theoretically undermine arg that the law couldn’t have been read that way in the 1st place (if the 2nd bill doesn’t pass, somebody arguably has a stronger argument saying he original law can be used to do the thing you didn’t want it to do)
Biden v. Nebraska - Kagan Dissent
- what’s at stake: MQD’s purpose, not just its effect, is to be less democratic - Kagan is calling out majority + saying they have own political purpose
- two paths of taking country down - respecting political branches (political controversy resolved by political means) vs. second path court makes itself decider of student loan policy
Practical Significance of MQD
Generally disincentivizes innovative + big policies
- avoid novelty - try to replicate what agencies have already done
- avoid the word “billions”
- malleability of political significance
- should go big w/ new statutes - set the tone for what they can do
- issue of how Presidents + politicians talk about what they do -> not a time to brag
- problem that there’s a LOT that needs to be filled in about this doctrine still (pretty unclear at the moment)
Potential Admin Responses to MQD
- could proceed with caution, try to insulate
-> can you wield a direction the regulated entities are ALREADY moving in (makes your move seem smaller)
-> can you give more context for costs? (see if you can make big relative instead of objective, a billion isn’t as big as it used to be) - alternative strategy of just going big anyway w/o self-censoring - overwhelm the courts + make them pay the toll of public disapproval
-> downside of this is that theoretically you wind up limiting what a lot of statutes can do (although plus side - if our gov is dysfunctional, you should find a way to make people more actively aware of it instead of passively giving in)
Loper Bright - Cert Petition
- framing the tie as something that should come out in favor of “the citizenry” instead of the government
- BUT q of whether the pl is regulated entity or beneficiary (“citizenry” is not monolithic, + there are different groups who admin law is designed to serve) -> Clement telling narrative of protecting individuals from gov when actually defs/pls in these cases are more typically massive corporations that don’t like Chevron
-> cert petition doesn’t even acknowledge existence of regulated beneficiaries - argument that Chevron creates incentive for Congressional inaction (leaves things to “friends in the White House”)
Loper Bright - Merrill Amicus Brief
- giving the court a middle pathway without fully overturning Chevron
- concept of looking at past regulatory history
- Mead - concept that court has ways of limiting the doctrine
- rejecting the maximalist view (fixed presumption that agencies have primary authority to resolve any and all ambiguities in the statutes they administer)
Summary of Arguments:
- The constitutional and statutory objections are answered by clarifying that the Chevron framework requires a judicial determination that Congress has actually delegated authority to the agency to regulate with respect to the matter at hand (Court, applying the Chevron framework, usually has not understood agencies to exercise delegated authority whenever the statute they administer requires interpretation. Instead, in order to confirm that Congress has actually if implicitly delegated interpretive authority to an agency, the Court has engaged in statutory analysis, considering the nature of the agency, the history of the regulation in question, and the importance of the question in the context of the statutory scheme.)
- And even when the agency has authority to regulate, other contextual variables may indicate that it was not given authority to interpret the precise question at issue
- The objection based on legal instability can be ameliorated by emphasizing that a reasonable agency interpretation is one that considers reliance interests created by past agency decisions.
- The objection based on agency bias can be addressed by making clear that a reasonable agency interpretation must be the result of an appropriate interpretive process by the agency.
Loper Bright - Merrill Amicus Brief - Main Points
- The Chevron Framework Does Not Violate Article III If the Doctrine Is Limited to Circumstances of Congress’s Actual Delegation to Administrative Agencies
- The Chevron Framework Does Not Violate Article I If It Is Limited to Instances Where the Agency Acts Pursuant to Its Delegated Authority
- Chevron Framework Does Not Violate the APA but Respects Congress’s Delegations in Agencies’ Organic Statutes.
- Other objections can be addressed w/o overturning Chevron
Views on Chev Overturning - Gorsuch
- Only difference is courts will fulfill their duty to exercise their independent judgment about what the law is
- De novo review of law’s meaning would limit ability of agencies to alter and amend existing law
- Agency’s recourse is prescribed by USC – appeal or get a new law enacted consistent with bicameralism and presentment
