The major question doctrine tries to address one problem, the Imperial Executive, by escalating another, the Imperial Judiciary. This article proposes a solution, with the Biden Student Debt Waiver as a case study: An “emergency question” doctrine.
This emergency questions doctrine would apply when the executive relies on a statutory emergency clause or invokes an emergency in its application of a statutory provision. As a matter of statutory interpretation, the emergency question doctrine would follow the two most important steps of the major question approach: 1) relying on purpose and context to clarify and limit the scope of open-ended emergency texts; 2) no Chevron deference. However, MQD’s step 3, the "clear statement" rule, is generally a problematic new substantive canon "loading the dice," in Scalia's terms. A “clear statement” rule for emergency responses is especially inappropriate – and even dangerous – given the unpredictability of emergencies and the necessarily open-ended texts in emergency clauses. Instead, as a check on pretextual uses or overbroad abuses, courts should focus on whether the means fit the emergency ends.
This approach addresses two problems: First, a narrow textual argument based on the word “emergency” gives too much latitude to the executive branch; a purposive approach (focusing on context and means-ends matching, with no Chevron deference) is sufficient to cabin the word “emergency” and limit executive power. Second, it would provide a meaningful category of cases where the logic of the major questions doctrine should apply, as a meaningful way to cabin the major questions doctrine.
This solution is a coherent middle stage of the Major Question cases:
MQD 1.0, the Good Purposive MQD (2000-2015), a common-sense emphasis purposivism over narrow textualism in major cases; and a wise exception to Chevron deference;
MQD 2.0, a Good Emergency MQD (2021-active) can be understood best as an emergency question doctrine, a check against the overbroad use, the pretextual use, or abuse of the Covid emergency;
MQD 3.0, the Bad Anti-Major Canon MQD (2022-active), the requirement of a super-clear-statement rule for any “major” policy, a substantive canon of a presumption against significant executive actions.
The emergency question doctrine makes sense MQD 1.0 and 2.0, and it limits (and even appropriately sidelines) MQD 3.0’s danger of imperial judicial expansion and its danger of weakening the executive’s capacity to address emergencies.
Jed H. Shugerman,
Major Questions and an Emergency Question Doctrine: The Biden Student Debt Case Study of Pretextual Abuse of Emergency Powers
Available at: https://scholarship.law.bu.edu/faculty_scholarship/3602