SCOTUS conservatives and the "major questions" meaninglessness

The student loan forgiveness plan arguments were another chance for conservatives to employ their favorite new "doctrine." Also: Mississippi's new anti-trans law. And: Alabama to resume executions.

Photo by Bill Mason on Unsplash

The Supreme Court on Tuesday considered a pair of challenges to the Biden administration’s student loan forgiveness program — one from Republican-led states and one from two borrowers unhappy with what loans the program covers and doesn’t cover.

Both Justice Sonia Sotomayor and Solicitor General Elizabeth Prelogar made clear that the cases will affect the financial futures of tens of millions of people.

As Prelogar noted in closing the more than three hours of arguments, “Ninety percent of the borrowers covered by this plan make less than $75,000 a year and the Secretary documented the extreme impacts that COVID had had on their financial affairs” — an important point legally given the HEROES Act provision addressing national emergencies that Education Secretary Miguel Cardona used to justify the program.

But, the case also served as a vehicle for the conservative super-majority. Aside from questions about whether the challengers in either case had standing to be there, the legal arguments on Tuesday were not focused so much on the obvious emergency of the pandemic. By and large, they were instead another chance for Chief Justice John Roberts and Justices Sam Alito and Neil Gorsuch to try and find a way to build out the “major questions” doctrine.

I wrote about the direction of the court in this area for MSNBC:

The growing elasticity of the “major questions” doctrine was on full display Tuesday, as several of the conservative justices picked up the popular online retort that loan forgiveness is somehow “unfair” because some people have already paid off their student loans and others chose not to take out such loans at all (often because they didn’t need to). This is a policy argument, although even that has its limits, and not a legal argument. But that didn’t stop several of the conservatives from repeatedly focusing on it and finding a way to claim it was legally relevant in Tuesday’s arguments — by way of the “major questions” doctrine.

Roberts made the argument that the “major questions” doctrine should allow the justices to look not just at whether the law grants the executive branch “clear” authority to act — but also at the “fairness” of the executive’s program.

Previously, the “major questions” doctrine gave conservatives a chance to stop executive actions by saying the congressional grant of authority wasn’t clear enough. On Tuesday, Roberts suggested that the made-up “doctrine” also gives conservatives a chance to stop “major” executive actions at the other end — by examining the “fairness” of the executive action under that congressional grant of authority.

As I concluded at MSNBC:

While the “fairness” arguments might not win the day in this case because of the standing questions, they could become part of the ever-expanding “major questions” doctrine if the justices get to the merits of whether the student loan forgiveness plan is permitted by law. And, regardless of whether they do so in this case, several of the conservative justices made it clear Tuesday that they are more than willing to consider continued expansions of the “major questions” doctrine. Which means that cases raising the “doctrine” — and attempts to increase its reach to end more progressive programs — will continue.

THE NEWEST ANTI-TRANS LAW: Mississippi Gov. Tate Reeves signed H.B. 1125 into law on Tuesday, making it the third bill banning gender-affirming care to transgender minors to become law this year.

It is the fourth anti-trans bill signed into law this year.

Here is the text of the final version of the law signed by Reeves. The primary ban is direct and brief:

The definition of those “procedures” are similar as in other bills — covering surgeries, but also puberty blockers and hormones:

More than banning such procedures, however, the Mississippi law goes further, banning conduct — other than protected speech, it states — “that aids or abets the performances or inducement” of such procedures to any minor:

Any medical provider who violates the law “shall have his or her license to practice medicine in the State of Mississippi revoked.” Anyone who violates the law can face to private lawsuits or lawsuits from the state’s attorney general. As with many of these bills, the statute of limitations to bring the private claim is extremely long — 30 years (or 30 years after the minor reaches 21).

The law also changes state insurance law and state tax law to exclude gender-affirming medical care for people younger than 18 from insurance coverage requirements and exclude the costs of such care from otherwise available state tax deductions for medical expenses.

This will not be the final anti-trans bill of the year, we already know. Law Dork previously covered the fourth bill banning gender-affirming care to transgender minors to have passed both legislative chambers in a state this year. That bill, Tennessee S.B. 1, has been processed through both chambers for signing after passage. Gov. Bill Lee has said he will sign it.

Other anti-LGBTQ legislation is proceeding across the country, including an extreme bill in Oklahoma that passed the House on Tuesday and was highlighted by the ACLU’s Chase Strangio:

Chase Strangio @chasestrangio

The ban passed the House 80-18. Make noise. Contact senators. Tell them to stopping banning care for trans people in Oklahoma of all ages.

Chase Strangio @chasestrangio

Tomorrow Oklahoma will take up HB2177 on the House Floor. It bans care for minors and effectively bans care for adults and bans all insurance coverage for all ages and goes into effect immediately. I assume everyone who said this was just about minors will speak up?

Law Dork will have more on the latest anti-LGBTQ bills that are advancing across the country later this week.

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ALABAMA EXECUTIONS: Finally, from Emma Camp at Reason, an update on Alabama’s plan to resume executions:

Last Friday, Alabama Governor Kay Ivey (R) announced that the state would resume executions, following the results of an investigation into the state’s execution practices. The investigation was ordered in November, following a series of high-profile botched executions in the state. While Ivey praised the investigation, stating on February 24 that it would allow the state to “resume our duty of carrying out lawful death sentences,” critics took swift concern with the investigation—citing its lack of transparency. …

The investigation was carried out by officials in the Alabama Department of Corrections (ADOC), rather than an independent agency. ADOC didn’t make the full results of its investigation public, instead simply releasing a two-page letter to the governor which loosely described the changes the agency plans to undertake.

The fact the ADOC Commissioner John Hamm oversaw the “investigation” and reported its findings to Ivey eliminates any chance that this “review” should be taken seriously.

Hamm’s own language suggests as much, saying not that his department is prepared to carry out executions constitutionally, but only that they are “as prepared as possible” to do so.

Talk about discouraging.

Read Camp’s whole report at Reason.