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The Major Questions Metadoctrine and The Slaughterhouse Cases

In my last post I show how US v. Cruikshank (1876) and The Slaughterhouse Cases (1873) affect our gun control crisis. In this post I look at the connection between The Slaughterhouse Cases and Biden v. Nebraska, the recent case striking down Biden’s student loan reduction plan.

The Slaughterhouse Cases

I discuss The Slaughterhouse Cases here. The Supreme Court could have decided them strictly on the basis of the police power. The appellant butchers argued that the untrammeled right to earn a living was a right protected by the Privileges or Immunities Clause of the 14th Amendment. That’s obviously not true. The Court later takes up the purposes of the Reconstruction Amendments, and there’s nothing to support the Appellants’ argument.

But Samuel Miller, who wrote the majority opinion, explains that he and the other members of the Court have thought it over, and “ we now propose to announce the judgments which we have formed in the construction of those articles, so far as we have found them necessary to the decision of the cases before us, and beyond that, we have neither the inclination nor the right to go.”

One of the advisory opinions that follow is that the Reconstruction Amendments were not intended to change the balance of powers between the federal and state governments. Miller justifies this by saying that if Congress wants to make an significant change the balance of powers between the states and the US, it has to do so in language acceptable to the Supreme Court.

Earlier in the opinion, MIller said that the Reconstruction Amendments were intended to insure that Black people had a full range of rights, just like White people. Section 5 gives Congress the power to enact laws to secure that right. So at the very least, the Reconstruction Amendments change the relations between state and US governments enough to permit the US to protect the rights of Black people. It’s hard to imagine clearer language, and Miller doesn’t even hint at one.

Furthermore, by the time of The Slaughterhouse Cases Congress had enacted two civil rights laws and three enforcement acts. This effectively is a declaration of Congress’ understanding of its power, and that of the President. Miller ignores the views of the other two branches. Only the opinion of five members of the Supreme Court counts. The Supreme Court is the unelected final authority in our democracy.

So, we have three points from The Slaughterhouse Cases:

1. If the Supreme Court majority wants to issue a ruling in a case, it will do so, regardless of precedents it might have established.

2. If Congress wants to accomplish a major change in our government it must figure out some language that even the Supreme Court is afraid to reject, but likely that’s impossible.

3. SCOTUS is supreme; it ignores the other two branches if it chooses.

Biden v. Nebraska

Majority Opinion. John Roberts’ majority opinion addresses the standing of the Appellants. Most of them don’t have standing, but no matter, because Roberts asserts that Missouri does and one is plenty. The basis for Missouri’s standing is that it had created MOHELA, an independent nonprofit governmental corporation, which owns and services student loans. MOHELA refused to participate in the lawsuit (I wonder why) but the Missouri AG claims that Missouri can sue in its place. He says MOHELA would lose an estimated $44 million in fees for loan servicing. None of that would ever go to Missouri, ever, but so what?

Roberts and the Fox News Six say MOHELA is an “instrumentality” of Missouri, the instrumentality might lose money which is an injury sufficient for standing, and that’s good enough. What he means is that standing is available because he wants to rule on the merits. Just like in The Slaughterhouse Cases.

In her dissent Elena Kagan explains that standing rules arise from the Constitutional requirement that SCOTUS only has jurisdiction of actual controversies. If a plaintiff isn’t injured, there is no standing.

It still contravenes a bedrock principle of standing law—that a plaintiff cannot ride on someone else’s injury. Missouri is doing just that in relying on injuries to the Missouri Higher Education Loan Authority (MOHELA), a legally and financially independent public corporation. And that means the Court, by deciding this case, exercises authority it does not have.

On the merits, Roberts addresses the statutory power granted to the executive branch to waive or modify any provision of the student loan program in the event of a national emergency. He explains that “waive” doesn’t mean waive, and that “modify” doesn’t mean modify, if the change is big. A lot of money is a big change. He doesn’t even hint at the words Congress should have used to get its way.

He says his opinion is supported by what he grandiosely calls the Major Questions Doctrine, because there’s a lot of money at stake. I call it the Major Questions Metadoctrine, or MQM, for reasons that will appear.

Barrett’s Concurrence. Amy Coney Barret, who clerked for the odious Antonin Scalia, styles herself a textualist. She wants us to know that the MQM is very good, so she writes a concurring opinion. Most of is is technical legal stuff about canons of interpretation. Two points are worth mentioning.

1. Barrett cites a 2010 law journal article by John f. Manning, a Harvard Law professor: Clear Statement Rules and the Constitution. You don’t have to read past the abstract to find out what Manning thinks:

This Essay argues that such clear statement rules rest on the mistaken premise that the Constitution contains freestanding values that can be meaningfully identified and enforced apart from the specific terms of the clauses from which the Court derives them.

Barrett ignores this point entirely. The MQM is supposed to be a clear statement rule. There are a number of these, mostly directed to structural constitutional issues like federalism. The Slaughterhouse Cases could be seen as an application of a clear statement rule, if it weren’t so obviously unnecessary and wrong.

In Biden v. Nebraska the MQM is applied to enforce Congressional control over the purse. But as Barrett herself shows, that isn’t in the Constitution. In her view, this purpose is an emanation from the Appropriations Clause. The power of the purse is a judicial trope, already once removed from the text of the Constitution. The MQM is a further step from the Constitution. Thus, a metadoctrine.

2. Barrett offers a hypothetical to explain her view.

Consider a parent who hires a babysitter to watch her young children over the weekend. As she walks out the door, the parent hands the babysitter her credit card and says: “Make sure the kids have fun.” Emboldened, the babysitter takes the kids on a road trip to an amusement park, where they spend two days on rollercoasters and one night in a hotel. Was the babysitter’s trip consistent with the parent’s instruction?

This is a laughable hypothetical. The Biden Administration didn’t just decide for funsies to reduce student debt. There was an economic catastrophe caused by a pandemic that killed a million Americans and sickened tens of millions.

The correct hypothetical is not a trip to a theme park, but a trip to the emergency room paid with the credit card.

This is shoddy work, but it’s all we an expect from rigid ideologues. It’s also an ugly parallel with the Reconstruction Era Supreme Court.

Conclusion

The parallels to The Slaughterhouse Cases are, I hope, obvious.

1. SCOTUS will ignore every restriction on its use of power if five members want to.

2. There is no statutory language clear enough if five (or more) members of SCOTUS don’t like the policy.

3. SCOTUS is very supreme.

SCOTUS Is Changing The Definition Of American Citizenship

In this post I discussed the Republican plan to rig SCOTUS by selecting SCOTUS nominees who would reliably vote their way on issues important to their base and their donors. They’ve succeeded. In this post I give a brief sketch of their goals for each group, the means of enforcement, and the impact on the nature and benefits of American citizenship.

1. Donors. There is an oligarchy inside our democracy, as I have been saying for over a decade. It dominates the Republican donor class. Oligarchs want the freedom to do anything they like with their money and the assets they control. They want the freedom to do whatever they think will make them richer. And they really hate the idea of taxation and all forms of redistribution of wealth. Their current goal is to weaken the ability of the federal agencies to regulate, because that reduces the value of their assets.

The first steps were legislative. The Administrative Procedures Act governs the way agencies make rules. Republicans and corporatist Democrats fiddled with it to make it harder for agencies to act quickly, and to increase the cost to the agencies of rule-making. Then the Office of Management and Budget was added as an additional check closer to the President.

Until recently the primary use of the courts was delay. Corporations and their front groups challenged every rule they didn’t like. Courts took these filings seriously, and allowed lawyers to spend years in costly litigation. Gradually courts created a new layer of rules that brought delay and increased costs of regulation. But even that wasn’t enough.

Right-wing lawyers have been arguing that there is no Constitutional basis for administrative agencies, and thus no basis for rules made by agencies. This led to the non-delegation doctrine which limited the power of Congress to delegate authority to agencies. The current version is called the major questions doctrine, which says Congress has to be very specific about what it delegates if there is a big effect. It essentially gives SCOTUS the power to overrule any agency action it doesn’t like by saying Congress wasn’t explicit. As an example, SCOTUS used the shadow docket to strike down a CDC rule extending the nationwide moratorium on evictions in Alabama Assn. Of Realtors v. Department of Health and Human Services, link here. The Court said the cost to landlords was so great that Congress had to explicitly give the agency poser to make such broad rules.

We get a similar result in National Federation of Independent Businesses v. OSHA. In another case on the shadow docket, a 5-4 majority declared that the number of people affected by a workplace safety requirement that people be vaccinated or tested weekly was really big, and only Congress could make such a big decision.

And who gets to decide if a decision is too big? Not Congress. Not the President. Not the elected representatives of the American people. Nope. SCOTUS gets to decide. In these cases the big beneficiaries are the donor class and the anti-vax Trumpists.

2. The religious fanatics. During the pandemic SCOTUS gutted the CDC rules on attendance at super-spreader events, asserting that Churches had to be treated like grocery stores. Here’s a more neutral discussion on ScotusBlog. These cases were also part of the general attack on agency rules dealing with the death and misery caused by Covid.

Of course, for the religious fanatics, the most important cases are attacks on Roe v. Wade. In the first set of cases, SCOTUS just couldn’t figure out how to stop that blatantly unconstitutional Texas bounty law. So they left it in place, seriously impacting abortion clinics in Texas.

The frontal assault is Dobbs v. Jackson Women’s Health Organization, which seeks to limit abortions to 15 weeks, or to get rid of Roe altogether. The case was argued late last year. Here’s a summary from SCOtUSBlog. A decision is expected in June, 2022, and everyone expects a big loss for citizens.

3. Cementing the outcome. It would be possible to get different outcomes if Congress actually represented the will of the majority. To make sure that doesn’t happen, state legislatures draw districts that favor the party in power in the state. In Rucho v. Common Cause, a 5-4 majority of SCOTUS said that partisan gerrymandering “is incompatible with democratic principles”, but sadly courts can’t do anything to protect democracy.

Even racial gerrymandering is fine because it’s always too close to an election, as the Court held in a bunch of shadow docket cases involving obviously racially gerrymandered districts. Here’s a discussion of the problem.

Another challenge to democracy is the idea that state legislatures can make election rules without the checks and balances of their state constitutions, including their governors and courts. This is called the independent state legislature doctrine. I love the idea that this garbage jurisprudence calls itself “doctrines”.

Each of these cases essentially means that we don’t live in a democracy, that the votes of millions of us don’t matter, and in turn, that government controlled by a minority of rich people and religious fanatics cannot be replaced by a majority of voters.

This may breing to mind the principle “one man one vote”, an idea laid out in Baker v. Carr, and the related cases of Reynolds v. Sims and Wesberry v. Sanders. Here’s the thing. Computerized map-drawing has made it so that everyone gets an equal vote, but some votes are more equal than others.

4. Citizenship. I went to law school in the early 70s, so most of the important cases we studied in Constitutional Law were Warren Court cases. I learned to think of them as giving practical effect to the rights and privileges of being a US citizen. For example, everyone has a right to counsel in a criminal case under the Sixth Amendment. Until 1963 everyone with money had that right, but those who didn’t have money didn’t have that right. Then in Gideon v. Wainwright, SCOTUS made that right a reality for every American. In the same way, everyone had a right not to incriminate themselves. That was meaningless until Miranda v. Arizona made it clear that people must be informed of their rights, including their right to have a lawyer present during interrogation.

Another group of decisions made it clear that there were limits on the ability of states and the federal government to control people’s private lives. Griswold v. Connecticut said states can’t regulate birth control for married people. Cases like this limited the ability of government at all levels to intrude on our private lives.

As a result we gradually gained a full panoply of rights as American citizens, rights which could not be infringed by federal, state and municipal governments.

In this post I cited constitutional scholars across the ideological spectrum saying that originalism and textualism were the conservative backlash against these and many other so-called liberal decisions of the Warren Court. The six conservatives now ruling over us plan to gut those decisions. They were all selected for that purpose. In the future, we will have very few meaningful rights as American citizens. The bulk of our rights will be set by states, many of which are gerrymandered so that a minority can decide what you can and cannot do.

That’s not my idea of America.