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Of Babysitters and Major Questions
Survey data casts doubt on the textualist rationale for the major questions doctrine that I and others have advanced. But perhaps not as much doubt as it might seem.
The once-obscure "major questions doctrine" (MQD) has become one of the most controversial rules of legal interpretation applied by federal courts. Over the last two years, the Supreme Court has used it in several major cases, including the eviction moratorium decision, the OSHA large-employer vaccine mandate case, West Virginia v. EPA, and—most recently—Biden v. Missouri, the ruling striking down President Biden's plan to forgive $430 billion in student loan debt. The doctrine requires Congress to "speak clearly when authorizing an [executive branch] agency to exercise powers of vast 'economic and political significance.'" If such a broad delegation of power isn't clear, courts must rule against the executive's claims that it has the authority in question.
Critics of MQD have argued that it is incompatible with textualism, the theory—endorsed by many conservative jurists, among others—which holds that courts must generally interpret statutes in accordance with their "ordinary meaning." In turn, some defenders of MQD—myself included—have argued that the doctrine is actually compatible with textualism, because people ordinarily expect clearer, more unequivocal authorization for broad delegations of authority than relatively narrow ones. Most notably, Justice Amy Coney Barrett offered an argument along these lines in a concurring opinion in the student loan case.
In an important new article, legal scholars Kevin Tobia, Daniel Walters, and Brian Slocum (TWS) empirically test Barrett's now-famous "babysitter" hypothetical to see if ordinary Americans really do interpret these kinds of situations in the way Justice Barrett and other MDQ advocates expect. After all, if "ordinary meaning" is the relevant standard, than the views of ordinary people become crucial—perhaps more so than those of judges, academics, or other potentially unrepresentative elites.
The results are not favorable to MQD. We who defend the theory have to admit that. At the same time, the test is far from a conclusive one.
Here's Barrett's famous babysitter hypothetical:
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? Maybe in a literal sense, because the instruction was open-ended. But was the trip consistent with a reasonable understanding of the parent's instruction? Highly doubtful. In the normal course, permission to spend money on fun authorizes a babysitter to take children to the local ice cream parlor or movie theater, not on a multiday excursion to an out-of-town amusement park….
TWS turned this scenario into a series of survey question and asked a representative sample of 500 people whether they thought the babysitter's actions were "reasonable" and whether she had gone beyond the parents' instructions. Specifically, they describe the following situation:
Imagine that Patricia is a parent, who hires Blake as a babysitter to watch Patricia's young children for two days and one night over the weekend, from Saturday morning to Sunday night. Patricia walks out the door, hands Blake a credit card, and says: "Use this credit card to make sure the kids have fun this weekend.
They then ask whether Blake violated the rule laid down by Patricia in various scenarios, including one where "Blake uses the credit card to buy the children admission to an amusement park and a hotel; Blake takes the children to the park, where they spend two days on rollercoasters and one night in a hotel."
To my surprise, only 8% of the sample thought Blake violated the rule in this situation. Like Justice Barrett, I initially thought it pretty obvious that the sitter was in the wrong here. But the survey results suggest most ordinary people think otherwise. That, in turn, implies most do not believe special clarity is needed to indicate a major delegation of authority, as opposed to a minor one.
As already noted, I have to admit this result is evidence against my view. Moreover, I was also wrong to assume my intuitions were shared by the general public. I routinely have occasion to warn students and others that the views of educated elites (including their own) are often unrepresentative. One of the reasons why we need survey data is precisely because our intuitions about public opinion are often unreliable. I should have been more mindful of my own strictures on this point!
In this instance, I was relying in part on my experience as both a parent and a babysitter (I did a lot of babysitting work as a teenager). But other parents and sitters (both groups are large enough that they likely had significant representation in the sample) may have different intuitions than I do.
However, a closer look at this question suggests it may not prove as much as it might seem. One crucial shortcoming is that a babysitter who is allowed to stay with the children by herself for an entire weekend and direct their activities throughout that time, already has sweeping authority. The addition of a road trip to an amusement park my be only a modest extension of that power.
That's true in terms of the amount of authority she has over the children. But it may also be true in purely monetary terms. A sitter trustworthy enough to entrust the children to for an entire weekend can, in this day and age, cost some $20-25 per hour, or even more. Some relatively simple math shows that the addition of what may be $200-300 for a one night hotel stay and amusement park tickets may not add that much compared to the baseline expenses of employing the sitter for two days.
On top of that, a sitter allowed to stay with the kids for an entire weekend, by herself, is likely to have a relationship of trust with the parents (or at least come highly recommended). If so, it might be understood that she has broad discretion to do as she wishes.
I don't know to what extent the survey respondents took account of these types of considerations. But the possibility that many of them did so makes this a less compelling test of MQD theory than it might seem at first sight. I don't blame the authors for overlooking these aspects of the scenario. I made the same mistake when I first read Barrett's concurrence. Only reading the TWS paper —and its (to me) unexpected results—prompted me to think about the situation more carefully.
But Justice Barrett herself actually anticipated the possibility there might be complications that make the babysitter's actions seem more defensible:
Perhaps there is obvious contextual evidence that the babysitter's jaunt was permissible—for example, maybe the parent left tickets to the amusement park on the counter. Other clues, though less obvious, can also demonstrate that the babysitter took a reasonable view of the parent's instruction. Perhaps the parent showed the babysitter where the suitcases are, in the event that she took the children somewhere overnight. Or maybe the parent mentioned that she had budgeted $2,000 for weekend entertainment. Indeed, some relevant points of context may not have been communicated by the parent at all. For instance, we might view the parent's statement differently if this babysitter had taken the children on such trips before or if the babysitter were a grandparent.
While Barrett may have viewed such complications as unusual exceptions to a general rule, many survey respondents may have assumed that such a relationship of trust or other "contextual evidence" is commonplace when parents entrust a sitter with their kids for an entire weekend.
In my own career as a babysitter, I usually had more discretionary power the more time I spent with the kids. More if I spent all day, as opposed to just a couple hours. And more if I had taken care of these particular kids several times before, than if this was my first time.
As a teenager doing occasional part-time work a few hours per week, I never stayed with any of my charges for an entire weekend. But such things are far more common for a professional sitter or nanny, particularly if that person is an adult who does childcare work full-time, or at least for many hours per week. When my wife and I leave the kids in the charge of a sitter overnight, it is almost always with such a trusted professional. And that person will enjoy considerable discretion, in part because we have confidence in her and her experience. That's very different from Congress delegating power to executive branch agencies that may well end up under the control of an opposing political party—if not now, then after the next presidential election. Of course, as already noted, it may be that other parents (and other sitters) have different experiences, and make different assumptions.
Despite these caveats, the TWS survey evidence does still undercut the case for MQD to some extent. But we need more and better survey data to get anything approaching a definitive understanding of popular attitudes on this subject. Ideally, I would want to ask a variety of different questions about various types of vague delegations of power to see whether respondents believe more precision is needed for a broad claim of authority, as opposed to a narrow one. The battery of questions should include both everyday examples (like the babysitter scenario), and hypotheticals involving interpretation of laws, as well. I think it should also include cases where, unlike in the babysitter scenario, there is not likely to be a preexisting relationship of trust, or a strong baseline understanding that the agent gets very broad discretion.
As TWS recognize, textualism is not the only possible rationale for MQD. It can also be defended on substantive grounds. MQD may also look stronger on some variants of textualism than others. For example, things may be different if we assume the relevant "ordinary meaning" is that understood by observers knowledgeable about the particular area of policy in question, as opposed to members of the general public, most of whom may know little or nothing about it.
There is much more to to the TWS article than the babysitter question. For example, they also use other survey data to develop an extensive critique of Ilan Wurman's textualist rationale for MQD, which is very different from Barrett's and mine. I have reservations about both Wurman's initial argument, and the TWS critique thereof (may post my rconcerns about the latter at some future time).
If you're interested in the debate over MQD, read the entire TWS article, as there's a lot there. Far more than I can hope to cover in this post.
See also Josh Blackman's post on TWS's analysis of the babysitter question. Josh suggests parents may have different views than non-parents. That may well be true. But, despite declining rates of childbirth, it's still the case that a majority of adult Americans have had at least one child. That makes it unlikely that the TWS result can be explained primarily by childless people being more willing to side with the sitter than parents.
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“Here’s my platinum card. Buy what the kids need for a good time.”
(Buys a yacht.)
Sounds reasonable.
Politicians are weasels. We disallow weasel behavior because that’s what wrecks most countries around the world, and almost all countries through history.
Republicans were warned this would come back to bite them. “Emergency!” and therefore massive misuse of the emergency power.
Thanks for paving the way.
“Here’s my platinum card. Buy what the kids need for a good time.”
-Pays for a different babysitter. Pockets the fee.
Why stop there, demand a % as your delegated sitter does the same or better yet, hire a group of actors through a foundation you make up on the fly and pocket the profits.
I don’t understand why you think you’re saved by a hypothetical appeal to unspoken context on the part of the survey takers.
There’s an obvious unspoken context when Congress is drafting a law. They’re speaking to a very familiar babysitter: executive agencies. Everybody in this transaction knows how executive agencies will reason about their chartering statutes.
It’s not like Congress is leaving instructions for the Tunisian Ministry of Education where we might imagine that significant ambiguity about the parties’ expectations ought to be resolved conservatively for the sake of comity. They’re leaving instructions for the US Dept of Education. There’s no ambiguity left in that relationship.
Huh? That’s such a weird thing to say. We don’t usually presume that Congress is drafting partisan language. Congress is well aware of the political dynamics within executive agencies when it regulates them.
There’s an obvious unspoken context when Congress is drafting a law. They’re speaking to a very familiar babysitter: executive agencies. Everybody in this transaction knows how executive agencies will reason about their chartering statutes.
Or, to put that differently, we assume that Congress drafts statutes given the context of the common law, including precedents that govern how statutes are to be interpreted (e.g. Chevron) and precedents that govern delegations (e.g. the major questions doctrine). In principle, the common law can be one way or another, and Congress can make up the difference with appropriate drafting. What causes chaos is if the courts invent new common law rules out of thin air, and start applying those rules to statutes that Congress drafted without the benefit of knowing about those common law rules.
That would be a good point if two things were true:
1. MQD was common law at the time the statutes were written. It wasn’t, it’s relatively new.
2. MQD is consistently applied. It isn’t. As Kagan said, it’s used as a get-out-of-the-text-free card when it suits the justices’ policy preferences.
So no, MQD is both too new and too random to surmise that Congress is speaking to it. But you know what has been constant and reliable for centuries? Executive agencies’ expansive interpretations of their own power.
1. MQD was common law at the time the statutes were written. It wasn’t, it’s relatively new.
Exactly my point. (Except I put it as “invent new common law rules out of thin air”.)
2. MQD is consistently applied. It isn’t. As Kagan said, it’s used as a get-out-of-the-text-free card when it suits the justices’ policy preferences.
I’m less convinced by that one, at least at a theoretical level. Any new rule needs a series of cases to crystallise, and it’s perfectly conceivable that a reasonably applied MQD would crystallise to the point that Congress could work with it. Whether the Supreme Court, as it actually exists, is interested in applying the MQD in this way is a separate question, of course.
Executive agencies’ expansive interpretations of their own power.
The solution to that seems some kind of Congressional review, analogous to the affirmative and negative procedures in the UK. Pity that the Supreme Court foreclosed that possibility based on no explicit text in the Constitution whatsoever.
Executive agencies’ expansive interpretations aren’t necessarily a problem if everybody knows the game. Congress is already aware that it needs to set clear limits. Therefore, where an executive interpretation is plausibly within the limits set by Congress, we know it fits within Congress’ intent.
Your approach creates a dilemma for Congress: Write a rigid statute that may turn out to be insufficiently future-proof, or write a vague statute that will allow the executive agency to do lots of things that Congress doesn’t actually want it to do. It would be good to have an intermediate solution.
Yep, it’s a dilemma. Notably, MQD doesn’t address that dilemma. It just adds more confusion about what this third party might consider Major.
MQD is simply a new wording for an old concept. Wikipedia puts the original ruling in….1897
https://en.wikipedia.org/wiki/Major_questions_doctrine
So more than a century after the adoption of the Constitution. That’s OK then.
Is MQD a method of statutory interpretation or Constitutional law? I thought of it as an exception to Chevron deference. Chevron is just based on an assumption that, when Congress created an ambiguous statute, they intended to delegate interpretation to the agency. It’s not a Constitutional requirement and Congress can easily write “Chevron deference doesn’t apply” if they wanted to. If MQD is similarly analogous, the same rules would apply (and the year the rule was first applied is irrelevant as long as it was something understood by Congress).
And if we consider the length of time, Congress had decades of experience with agencies, and for quite a few of the authorizations, not only knew that broad authorizations would be broadly used, but expected it.
Nor is changing control of government a new thing.
I’m confused as to why anyone thinks that a paid survey site like Prolific is a useful website for scientific studies.
“The results are not favorable to MQD. We who defend the theory have to admit that. ”
Perhaps admit that Justice Barret’s hypothetical was poorly chosen.
I agree that the hypothetical was poorly chosen, and the survey was poorly designed to test only that hypothetical.
Suppose the babysitter bought them each a motorcycle, and made sure they had fun by allowing them to ride them on the streets.
Or took them to a brothel.
Or got them some piercings and tattoos.
Or bought a weekend’s worth of crack.
The to test the MQD, the survey should have explored where the line is drawn.
Ilya, I had a different take on the babysitting hypothetical.
Back in my babysitting years, parents normally left me with cash, not credit. This communicated two key things:
1. A spending cap.
2. What kind of entertainment they expected me to provide.
For instance, let’s say the parents leave $10. I might walk with their kids down to the dollar store, have fun buying a couple of bubble wands, then play outside with them for an hour or two. Pretty reasonable, right? This should stay within the spending limits they gave me and should be pretty fun! An amusement park’s out of the question.
Here’s a different case. This time, a different set of parents leave $500. Now, not only is the spending cap much higher, but I’m also wondering what the parents have in mind for entertainment. This sounds like they want me to bring their kids somewhere fun—maybe the zoo in the morning, eat a nice lunch, go see the dinosaurs at the natural history museum… A local amusement park is certainly on the table. However, we choose to do the dollar store trip. The parents come back, and they’re surprised! With the money they left, they expected a completely different type of entertainment for their kids! They’re probably not mad, especially since the kids had a good time and they saved money, but they are confused. Why didn’t I pick up on their expectations?
Now let’s say parents leave a credit card. Suddenly, there’s no (obvious) spending cap. However, it still communicates something about point #2: they want me to spend some money. After all, if they only wanted me to spend $20 entertaining, they probably would’ve left cash. However, you usually switch to credit cards for heavier spending. (The exact threshold is nebulous, but almost everyone seems to switch over after $200.) I don’t know what their expectations are, but certainly at least $50.
We’re not done with expectations yet. There are no specific instructions on how to use the credit card. They didn’t leave a note saying use it sparingly or only in emergencies, nor did they say spend freely. There are no obvious limits. All they said was “make sure” their kids have fun. Okay, that’s stronger than just ‘have fun!’, but it doesn’t impose any limits beyond that. Well, what are the types of places where kids will be sure to have fun? Amusement parks are a sure-fire option.
Finally, this is all you know. The survey doesn’t allow you to make the right choice, which is contact the parents to ask for clarification. There’s little to go off of beyond the lack of a spending cap, an implied permission to spend more than the bare minimum amount of money, and a mandate to “make sure” they have fun. Is it any wonder that only 8% think the babysitter’s in the wrong?
And that gets to the crux of the issue for me. Putting aside the overnight stay (I’d be FURIOUS if a babysitter took my kids somewhere overnight without permission), I don’t think the babysitter violated the rules. I’d feel that way even without the “make sure” line. However, I still consider it irresponsible! I feel like that has a different obligation: If you’re in doubt, confirm it with the parents. And if going out for a two-day, overnight amusement park trip doesn’t raise any second-thoughts in your mind, then I don’t want you babysitting my kids.
(Incidentally, I’m not sure that my babysitter analysis is the best framework for handling MQD. This is more of a “Why did people answer the survey question this way?” analysis, and I’m not convinced the babysitter-MQD analogy held throughout.)
Justice Barrett is a parent with experience in hiring reliable babysitters. The TWS survey lacks any resemblance to the hypothetical. No criteria for selecting adults, parents, babysitters, Not close, off the street volunteers seeking $1.
“500 participants were recruited from Prolific.co and compensated $1.00 ($12.00/hr) for a 5-minute task. To be eligible, participants must have completed at least ten tasks on Prolific, with a 100% approval rating, …”
“475 participants were included in the data analysis (mean age = 37.74; 48% men, 50% women, 2% non-binary.”
No reasons offered for rejecting certain applicants.
Read the survey question – a “5 minute task” – think about the mental state of participants, and decide whether it calls for one correct answer, multiple answers, or forces participants to select the “alligator in the room” as the answer sought by the survey.
Social “scientists” and Professors who do not understand 5 minute $1. surveys; a sad commentary on “legal analysis”. SHAME
Well this is boring, but check out
https://en.wikipedia.org/wiki/The_Baby-Sitters_Club_(film)
OK, it’s no “Citizen Kane” and don’t recall any Trannys/Homos/Disabled(oh wait, does Diabetes count?) so it’d probably get picketed/cancelled today,
just like “(It’s not noise) Sound of Freedom”
Frank
For me the definitive point would be handing over the credit card, and not even setting a spending limit. That’s essentially an unfettered delegation, an open invitation for the baby sitter to do something extravagant. “Make sure the kids have a good time, no matter what it takes.”
Once you’ve done that, you’ve got no basis for complaining about what they spend the money on, so long as it IS directed to the kids having a good time, and is legal.
But, are there any agencies out there that have been given unfettered spending authority? I don’t think so. They’re essentially all on fixed budgets they’re supposed to operate within. So the hypothetical isn’t a very good one for reasoning about actual government agencies.
Yeah, and everybody knows the claim was a total joke, it was all down to whether standing could be established so we could proceed to the near automatic judicial slapdown.
For me the definitive point would be handing over the credit card, and not even setting a spending limit.
OK, that’s nondelegation. It is *not* MQD. MQD in this hypo is acting as a backdoor to get to the same place as nondelegation.
If you hate SDP as a proxy for P&I, you should hate MQD.
I hate the fact that the Court gave up on non-delegation, actually.
Feel free to start a campaign to write it into the Constitution.
Awesome. I actually agree!
Now, to get back to the topic, MQD is whack.
You were almost correct the first time…despite how others may cast it, MQD is just a specific instance of non-delegation and the enumerated powers of the federal government. Because Congress’s power is not unlimited, it has to explicitly authorize executive agencies by law, so that agencies do not try to act beyond that constitutional enumeration.
MQD is not nondelegation. That’s not the rationale, nor is that the way it functions, since it applies not based on the enabling statute but at the reg level, it can be excepted with explicit language. And it somehow managed to be even more vague.
I like nondelegation – it is in keeping with the structure of our constitution, though it was too undirected back when it was a thing – needs a multifactor test.
MQD is not nondelegation. People who want nondelegation but settle for MQD are functionalist to the point of ignoring the actual Constitution.
That language refers to congress setting budget limits (i.e. approve the amount of money necessary to operate the agency). It does not authorize unlimited agency spending.
I think that the analogy is bad, because it’s just a bad analogy.
The issue that most people have with the MQD is that it is an entirely modern judge-created doctrine that does nothing more than give the Supreme Court a policy veto for things it doesn’t like. In effect, it is the “Council of Guardians” come to life. What is particularly … odd (that’s a neutral way of putting it) is that this is being championed by conservative jurists- the same ones who have spent decades telling everyone else that these types of extra-textual decisions should not be made. How often have we heard from certain corners that we should read just the text, and nothing else? Even if it might produce results we don’t like?
Wait, that’s only for a certain value of “we” that don’t like it?
The problem with the MQD is exactly the lack of meaningful contours of the doctrine. It’s basically a “get out of jail free” card to allow judges to get rid of any policy they don’t want using a nebulous standard.
Talking about babysitters doesn’t add to the debate- it just obscures it. If what we are really saying is that executive agencies are … AGENTS … that have been delegated power, well, guess what? There’s a ton of law on agency, going back a very long time, if that’s the real argument. But that’s not what is really happening.
If the People, through Congress, want to change the way that administrative agencies function … then guess what? Congress can. Very easily. It’s called legislation. We don’t need the Supreme Court acting as a super-legislature to enforce their own policy preferences on us.
I think the MQD is a sort of soft-version of the non-delegation doctrine: that is, Congress *may* delegate fairly broadly, *but* only if it (at least) speaks clearly when doing so for major policy questions.
In any case, Congress should not be able to simply sit back and enjoy when nobody holds them even to that…
There are a lot of people in jail right now for things that would never fly if Congress had to actually take responsibility for those “new” criminal laws. But alas, nobody responsible for those choices actually has any traceable accountability to the voters. (SCOTUS had a chance to fix that a couple years ago, at least for criminal law, but took a pass…)
“I think the MQD is a sort of soft-version of the non-delegation doctrine: that is, Congress *may* delegate fairly broadly, *but* only if it (at least) speaks clearly when doing so for major policy questions.”
But that’s not really an answer, is it? What is a “major policy question?” Well, it’s what the Supreme Court says it is.
It’s nothing more than a Supreme Court veto on otherwise-allowed action.
Again, I think that there are good reasons for political accountability (INS v. Chadha, etc.). This isn’t political accountability, though, because it’s just an unaccountable branch getting veto power over the political branches when they want it. Based on a non-standard.
It’s turning the old Scalia admonition about bright-line standards on it’s head and pulling its pants down.
But I don’t know how you can have real political accountability without the courts saying, in effect, “Congress, if you want this, enact it.”
It’s not “veto power”, because Congress can actually pass a statute if they want. It’s, “if you want it, actually enact it.”
Personally? I’d rather they just brought back non-delegation doctrine. This is such a tiny step in that direction it’s pathetic, and its pathetic that people complain about it.
You want a law? Enact it. How is saying that outrageous?
This administration has TWICE now attempted to use ‘regulatory’ rulings to turn not just legal, but constitutionally protected ownership of firearms, into a felony, without any new enactment by Congress. Trump, to his eternal shame, tried that shit, too, with bump stocks.
It’s a really nasty trend, and too late to nip it in the bud, but the Court can at least nip it before it’s become a whole branch.
“But I don’t know how you can have real political accountability without the courts saying, in effect, “Congress, if you want this, enact it.””
But Congress did already. Are they supposed to pass statutes now that say, um, we really mean it?
“It’s a really nasty trend, and too late to nip it in the bud, but the Court can at least nip it before it’s become a whole branch.”
It’s not the job of SCOUTS to enact the policy preference of Brett Bellmore to “nip things in the bud.” Or to enact their own policy preferences. It’s to determine if something is allowable under the law. Now, if you want to just say that SCOTUS can do what they want regardless of the text, that’s fine. But this just goes to the whole issue that is observable that there are no principles, just results.
As a matter of the law, I don’t like the MQD. Whether it ends up with results I like or not. Because I don’t like SCOTUS functioning as a super legislature.
“But Congress did already.”
No, they didn’t. They just put out some vague language, and then long afterwards, out of the blue, an agency suddenly decides it empowered them to do something crazy.
If the statutory language actually said to do that something crazy, they’d have attempted it immediately.
I share Loki’s view that the MQD is made up and Barrett’s trying to ret-con it with the babysitter, but to answer your question, if this is indeed a principled limit, why is it that the Court enforces this limit?
After all, we could very easily say “if Congress is offended at the exercise of power, it can rein in the babysitter by passing another statute”. And indeed, Congress HAS DONE THIS before. Congress cut off funds to the Vietnam War, for instance. Congress has reversed administrative agency determinations countless times.
The game everyone is playing- Left and Right- is this: we know there’s a filibuster, and that makes Congress very dysfunctional. It can’t do things LIberals want, and also can’t do things Conservatives want. It can’t pass a new statute authorizing a program, and also can’t pass a new statute forbidding one.
So what the MQD is doing is saying that the Court gets to stand in for Congress and “enforce” Congress’ supposed intent. But why? Why can’t Congress enforce it? If the only answer is, “because Congress is dysfunctional”, well, that’s the very reason Biden does these things by executive order in the first place. It’s circular.
“So what the MQD is doing is saying that the Court gets to stand in for Congress and “enforce” Congress’ supposed intent. But why? Why can’t Congress enforce it? If the only answer is, “because Congress is dysfunctional”, well, that’s the very reason Biden does these things by executive order in the first place. It’s circular.”
I completely agree. I think that the worst thing about the MQD, even if you support it, is that it is just lipstick on a pig. It’s not a fix for the actual problem; the dysfunction in the elected branches.
Self-government should function by the elected branches being the primary actors, because they are accountable through the election cycle. We need to get back to the primacy of Congress (which would mean that Congress would have to get back to the idea of … you know … trying to get things accomplished, even if accomplishment is getting rid of, or streamlining & reforming, laws).
No, I’m not holding my breath.
we know there’s a filibuster, and that makes Congress very dysfunctional.
For the record, that’s only one of about 100 things that make the US Congress dysfunctional.
“You want a law? Enact it.”
They did. They passed a law giving the agency the authority to “waive” or “modify” loans. No one can seriously argue that the forgiveness program doesn’t fall within the literal definition of “waiving” or “modifying” loans.
Maybe you can argue that that’s not what Congress *really* meant when it enacted those words. But if that’s true, why don’t YOU pass a law stating as much? Congress can always correct an agency that has exceeded its authority, just as surely as it can grant it additional authority.
Using a poorly worded survey question that doesn’t match the actual question and provision used by Barrett doesn’t prove anything.
If a criminal law is too vague, prosecutions get thrown out by the courts.
MQD says that if a spending authorization is too vague, major expenditures get thrown out by the courts.
Textualism supports both results, IMO. The text of the law needs to unambiguously support what the government wants to do.
“MQD says that if a spending authorization is too vague, major expenditures get thrown out by the courts.”
That’s now what MQD is.
For that matter, while you are correct that there is a “void for vagueness” doctrine in criminal law, it tends to spend a lot of time on island with its friend, the fruit of the poisonous tree … beloved by people talking about the law, and applied almost never in fact.
On the other hand, perhaps all regulations should be approved by congress. You know, the people we actually elect.
I have long suspected that because of partisan gridlock, Congress intentionally passes open ended laws and then leaves the agencies to fill in the contours. Given how difficult it is to get anything through Congress, they may just feel the simplest way to make policy is to give the agencies a long leash, with the understanding that there is an outer limit on how far the agencies may go. If I’m right about that, Congress may actually hate the MQD.
I would prefer to remove the anti-majoritarian aspects of our polity that make it difficult for Congress to act because the right-wing radical extremists have a veto power. Does anyone seriously think that forcing Kevin McCarthy to multiple speaker ballots, or allowing a single member of the Senate to hold up military officer promotions over an unrelated issue, is a good thing? Maybe making it easier for Congress to get things done would be the better choice.
“Maybe making it easier for Congress to get things done would be the better choice.”
Yes. As has been often observed, our system of government (bicameral legislature, strong executive) doesn’t actually work in other countries. And the reason that it doesn’t work in other countries, but has in ours, is that traditionally we have had a strong civic sense, and a (relatively) weak partisan sense- in other words, while there was a partisan identity, there was also a lot of overlap (think of the old Southern Democrats and the old Rockefeller Republicans, for example).
When you have strict partisan sorting, it tends to … fail.
Especially with the filibuster. All the MQD REALLY is, is conservatives leveraging the power of the filibuster.
And what is highlighted the need for MQD is progressives leveraging the power of the administrative state.
And by the filibuster doesn’t just help one side. That is why, for example, Trump wasn’t able to get his wall built, or achieve any sort of significant border security.
DACA and the Obama Iranian nuclear deal being 2 other examples of how the filibuster worked against conservative interests…to prevent the legislature from exercising the power of the purse to reign in executive overreach.
The administrative state, unlike the filibuster, was authorized by an act of both houses of Congress and signed by the President.
And yes, Congress’ dysfunction doesn’t allow conservatives to get stuff done either. I say that above.
To many of us (almost certainly including the Founders given the system they set up), gridlock is a feature, not a bug.
The Constitution was not set up to promote gridlock- that’s a completely modern idea. In fact, the Constitution was set up because the prior document (AOC) was ineffectual and led to … yep, gridlock.
Instead, the Constitution was set up to promote balance and compromise- to ensure that power was distributed (checks and balances). Not so that nothing got done, but rather so that extremes were tempered. It’s only this modern, “government should do nothing and we are powerless” modern gloss that allows people to say, unironically, that our government was set up to promote … gridlock, as if they Founders deliberately set up a system of governance to do nothing, as opposed to set up a system of governance that was empowered compared to the AOC.
I mean, there’s a BIT of “gridlock” inherent in checks and balances, which means there’s a kernel of truth in the idea that the Constitution was designed to create some level of gridlock. It was created to ensure there were multiple veto points. (Note, though- the filibuster was not one of them.)
Nonetheless, the gridlock that was created was supposed to be a means to an end. The point wasn’t to kill legislation and limit the federal government- as you point out, that was how the Articles were supposed to work and they failed. It was supposed to, as you say, incentivize compromise. In polarized times it doesn’t work.
Thank you for acknowledging that. A bicameral legislature with one half not replaceable every election cycle doesn’t sound like something immediately responsive to the current zeitgeist. But I think you have the history a bit wrong, considering the political conflict which led up to the Civil War, about admitting new states out of acquired territories. I’d say the Missouri Compromise of 1820 was the first installment on that.
It’s revisionist history to say that the periodic gridlock that resulted was anything other than limiting the federal government. Issues stalemated because no one saw a solution. Eventually when players changed, new things were tried (popular sovereignty, a grand bargain with an updated fugitive slave law). I keep thinking something like that will come from the immigration stalemate (amnesty for true border security) but both keep insisting that the other side’s price is illegitimate. Ditto for solution to Social Security’s looming insolvency (raising the FICA income limit for reduction in *future* retirees benefits).
And so it goes. Or doesn’t.
Gridlock may in practice limit the federal government. But the framers were not minimal state libertarians- indeed, the minimal state libertarians got their chance in the Articles, they failed because we needed a bigger government, so the point of the Constitution was to allow for a bigger government.
If there was a purpose to gridlock, it was not to limit the size of government, but to incentivize compromise.
Yes, Rossami, I know that you consider gridlock a feature not a bug, because your personal policy preference is for nothing to get done. While that is a legitimate policy preference, why should your preferences be cast in constitutional concrete? In my view, the procedural and structural rules should favor no policy preferences; they should be outcome neutral and the voters should decide from election to election which policies they favor. It’s called self governance.
You seem to have trouble distinguishing between “nothing” and “nothing for which there isn’t a serious consensus”. I assure you that there are a great many things where there’s a wide and durable consensus in favor of government doing. It may seem boring to stick to doing just those things, and leaving “things that are highly controversial” alone until you can generate a consensus.
But that’s the only way you can lower the temperature on our elections: Don’t use winning a narrow majority as an opportunity to do things a large minority really hate.
The problem here is with your definition of serious consensus; I think, for example, that amending the Constitution should require a bit more than just a majority of Congress, but I also think 2/3 of each house and 3/4 of the states goes too far in the opposite direction.
And the chickens that have come home to roost is that the majority of Americans who want abortion to be legal, who want single payer health care, and who favor more gun control than you do, are becoming increasingly unwilling to have small minorities block them at every turn. So, we’re doing workarounds, coming up with creative interpretations of the Constitution itself, and allowing the agencies to have more power than is probably healthy. Your solution that we just go away until we have 2/3 of each house and 3/4 of the states? Forget it; not going to happen. We’re increasingly no longer willing to allow a small band of contrarians and extremists block progress. The cost of not giving us a level playing field is that we’ll do what we can to get results from an unlevel playing field. If the liberals were a tiny minority blocking everything, you wouldn’t put up with it. Why should we?
“but I also think 2/3 of each house and 3/4 of the states goes too far in the opposite direction.”
The supermajority requirement is not actually the current obstacle to amending the Constitution. The actual obstacle is that members of Congress have systematically different preferences from the general population, which states better represent.
As a result, those amendments that members of Congress actually want have no hope of ratification, so Congress doesn’t bother originating them. That the Supreme court deferentially reviews federal law, and tends to share Congressional preferences, also factors into this: For instance, Congress didn’t NEED to re-originate the ERA, for the Court to just ‘interpret’ most of it into the 14th amendment without permitting the states to refuse to ratify this time.
The flip side is that those amendments the general public do want, are NOT wanted by Congress, so that the fact that they’d be easily ratified is all the more reason that Congress refuses to originate them. Term limits, a balanced budget. They’d easily be ratified by the states, so Congress won’t let the states have that chance.
The answer to this is actually built into Article V: A constitutional convention.
The actual obstacle is that members of Congress have systematically different preferences from the general population, which states better represent.
Everyone agrees with Brett except the evil folks in Congress.
The Article V provision for a convention is terrible.
There is nothing about procedures and requirements, how delegates are to be chosen, etc. It is more likely to lead to national disaster and an even greater degree of ill feelings.
The preferences of the general population are certainly nothing like those of Congress, the executive agencies, the media, the academy, the population of the D.C. metro area, or the losers who regularly whine in these comments. For recent proof (2020), note that even Californians rejected ballot propositions to permit government discrimination on the basis of race, sex, color, ethnicity, or national origin; to reduce theft & fraud crimes to misdemeanors; and to expand rent control statewide.
America’s Founders also certainly never anticipated that the federal government would expand to consume over one-third of all economic activity. In today’s argot, the Founders and the residents of early America were indisputably hardcore libertarians, and that ethos is hardcoded into our Constitution.
America’s Founders also certainly never anticipated that the federal government would expand to consume over one-third of all economic activity. In today’s argot, the Founders and the residents of early America were indisputably hardcore libertarians, and that ethos is hardcoded into our Constitution.
Utterly wrong. They specifically instructed the Committee of Detail to ensure the federal government could become as big as necessary to solve any problem of national import.
Let’s take your proposal to the rational ends. Amending the Constitution should be easier.
Assume it takes just 55% of Congress and 50% of the states.
What’s to stop an amendment that eliminates the ability of say, the wrong 30% of people from having the right to vote?
What stops that now?
“I would prefer to remove the anti-majoritarian aspects of our polity that make it difficult for Congress to act because the right-wing radical extremists have a veto power. ”
They’re ‘super-majoritarian’ aspects, that prevent tiny and transient majorities from utterly screwing over large minorities that very well might be the majority after the next election. One of the most troubling and dangerous developments in modern America is the growing belief that tiny majorities are entitled to do big, irreversible things.
That’s one of the major causes for our elections becoming less civil: It’s raised the stakes on every election sky high, because you know know EVERYTHING is riding on every election.
It used to be that parties with modest majorities would be somewhat modest in what they did, because they knew they didn’t have a massive mandate, and overreaching could cost them the next election. Now, instead of worrying about that, they just make sure that their over-reach isn’t something that’s easily reversed, so they keep their gain even if the voters kick them out of the majority.
It’s a really toxic development.
If they truly are tiny and transient, their political power will last only until the next election, at which time the new Congress can un-do whatever damage they did. What is wrong with the idea that politicians should be able to actually keep their promises?
And I think you misdiagnose the problem with people trying to do too much with a small majority. Please try to see how this looks to the Democrats. They know that they enjoy majority support for many of their positions, and that without these anti-democratic institutions they would hold power far more often than they do. They also know that in order to win power, despite anti-majoritarian institutions, they have to pretty much sweep the table in any given election. So, on those occasions when they manage to overcome anti-majoritarian roadblocks and actually achieve power, they know they have a very limited time in which to actually do anything. So OF COURSE they are going to make the most of it. Who knows how long it will be until they sweep the table at another election?
” at which time the new Congress can un-do whatever damage they did.”
What part of “something irreversible” did you not read? Like the ACA, which created an off budget entitlement program paid for by regulations forcing insurance companies to implement it on their own dime?
Entitlement programs are effectively immortal, because of concentrated benefits and diffuse costs.
Or the various efforts to render legally purchased firearms and accessories illegal: People end up having to give up or destroy property, without compensation. Even if later the regulation is overturned, they’re out the cost of that item, and it’s quite possible regulatory uncertainty will result in it not coming back on the market.
Under my proposed system, the ACA could be repealed in its entirety any time the GOP has 51% of both houses and the White House, or any time during the first two years of Trump’s presidency. It’s only irreversible because it takes 60 votes in the Senate to do anything. Same with entitlement programs. Of course, the voters love entitlement programs; Eisenhower said 60 years ago that any party that repealed social security would never hold power again.
Your complaint continues to be that a majority of Americans mostly don’t agree with your policies.
The ACA vote was a choice between the then existing system of insurance and the ACA. To object because we replaced the (terrible) existing system with the ACA because a “tiny majority” favored the ACA is silly.
Deciding between System A and System B on the basis of a majority preferring B doesn’t seem inherently tyrannical to me.
You seem to assume that whatever is in place should be privileged. Not so.
And you know what, the Republicans had plenty of time to come up with something better, and failed miserably at the job.
A false choice.
Because of the filibuster, other Republican/free market ideas for health care reform never were given a chance, because they didn’t promise the utopian solution of the big governments programs.
Notice I’m not claiming that free market alternatives would have completely solved the problem. That’s because I reject the false premise that the problem is totally solvable. That’s why Republicans can’t ever win in a pandering contest with Democrats. How can I say that? Why are Democrats (including Biden’s 2020 presidential) still campaigning on fixing healthcare? Because the ACA didn’t produce as advertised. Not that it didn’t have some successes. But those came at an unnecessary cost. Some things could have been achieved without creating a inefficient private insurance regulatory/subsidizing scheme. The urge for central planning is a strong one. The left is incapable of acknowledging that knowledge of the central planner is almost always inferior to the market. Markets always win, because individuals will always pursue their self-interest.
Because of the filibuster, other Republican/free market ideas for health care reform never were given a chance, because they didn’t promise the utopian solution of the big governments programs.
I don’t think it was the filibuster that stopped the Republican plans, such as they were. After all, the Democrats had a substantial Senate majority. In fact, as I recall, it was threats of a GOP filibuster that prevented some final changes being made to the bill.
And I will add that there is nothing “utopian” about ACA. What is utopian is the idea that somehow if we just turn the market loose on health care we will emerge with a wondrous system.
“Markets always win, because individuals will always pursue their self-interest” is easily one of the silliest claims libertarianism makes. There is a whole boatful of data that people are notoriously terrible at making good decisions in their own self interest. If people made decisions in their own best interest, you could shut down most of family court, most of criminal court, and the entire prison industry. There would be no drug addicts, a lot fewer awful marriages, and a lot fewer people dying of lung cancer and heart disease. Hell, if people voted in their own interest, Mississippi and Alabama would be bright blue because of all the impoverished people who live there and rely on government programs.
I’m not a huge believer in government paternalism so I would allow people to make most of those decisions for themselves, but they are stupid decisions. And the idea that people do anything other than make stupid decisions is a libertarian fantasy. Everyone here can look back over his life, find a really bone-headed decision, and say, “Oh my God, what was I thinking?”
“Hell, if people voted in their own interest, Mississippi and Alabama would be bright blue because of all the impoverished people who live there and rely on government programs.”
And California and New York would be bright red…..
Maybe they’re voting one way for a different reason?
The problem with healthcare is that it’s easy to predict who’s going to need it, so it’s not amenable to free-market insurance, and almost no one who needs it can afford to pay for it directly, so it requires insurance.
Put those two together and healthcare requires a regulated insurance market.
Maybe you’d rather the states regulate it than the feds, but that’s the only choice you really have… well, that plus the details of the regulations themselves.
Because of the filibuster, other Republican/free market ideas for health care reform never were given a chance, because they didn’t promise the utopian solution of the big governments programs.
You know you’re describing Romneycare/Obamacare there, right?
One of the most troubling and dangerous developments in modern America is the growing belief that tiny majorities are entitled to do big, irreversible things.
How about the idea that tiny minorities are allowed to block almost anything?
overreaching could cost them the next election
I’m not sure if that was ever true, but today the thing that costs you the next election is *not* overreaching.
But I agree that politicians should seek bipartisan support for relatively drastic changes. (Which is basically what the Israeli protests are about: stopping the government from removing all constraints on what 50% + 1 MKs can do.)
“I have long suspected that because of partisan gridlock, Congress intentionally passes open ended laws and then leaves the agencies to fill in the contours.”
No. Keep in mind that many of these laws being “exploited” are decades old. When Congress passed exactly what they wanted to.
And yes, this is exploiting the laws. Congress often gives a little leeway for border cases or issues of limited significance. If Congress for example, passes a law authorizing the executive branch to acquire a hammer, they may leave the details of it to the executive branch. Going into the nitty gritty of the exact type of hammer, and so on is not a good use of Congress’s time.
If 30 years later, the executive branch decide they want to buy a warship…and Congress doesn’t them authority to. Calling the warship a “Hammer-class warship” and using that to justify buying the warship exploits the law and is wrong.
Whether it be mass forgiveness of student loans, or building a wall on the border of Mexico, or mass amnesty for illegal immigrants….exploiting the laws in ways that were not intended is wrong, and breaks the separation of powers and ultimately pieces of the democratic bargain we have.
People are always identifying the hidden motivations behind how congress acts. But a huge part of the discussion usually goes missing. Congress uses broad language for broad legislation because passing specific authorities within that bill that cover every possible happenstance or occurrence covered under such a law is essentially impossible.
Broad language is as essential to an agency’s operations as specific direction as it it allows the agency the flexibility to administer and enforce broad legislation. Without this flexibility, every agency would be frozen in place every time some new thing comes up that is facially covered by, but not specified in, the legislation. Congress may someday act to specify that new thing in the law but it may not. That can be due to congressional paralysis *or* because congress saw no reason to do so. And even if it does, several newer things will likely come up in the meantime.
Prof Somin, you have based your conclusion that your intuition is contradicted by “the public’s” opinion based on this survey result. I am not nearly so deferential to the survey. Having reviewed their questions and methodology, I do not think it was adequate to support the conclusions they (or you) reach. This survey was particularly vulnerable to Anchoring Bias. While maybe suggestive for more rigorous research, I can’t give it more than that.
Barrett’s exceedingly poor hypothetical is laced with loaded language and assumptions of small town life.
“the local ice cream parlor or movie theater”
vs.
“an out-of-town amusement park”
What’s local and what’s out-of-town? Maybe where Barrett lives the context is clear. Is it the traveling that is the big difference? What if a particular town had no local ice cream parlor (do these even exist anymore?) and no local movie theater, but there was a six flags just minutes away off the highway? But the kids really wanted to go to the ice cream parlor (if they actually exist), so the baby sitter drove further than the six flags to get to the parlor?
Maybe where Barrett lives (or lived) the local parlor and theater are clear ideas. And everyone there knows that the closest amusement park is a trek. But not everyone lives in Mayberry.
In my neighborhood (Dutchess County, NY), none of these things is close. All of them would require an out-of-town trip.
If the babysitter has to entertain a bunch of kids for an entire weekend, getting out is the best way to do it. An amusement park is not that much of a stretch from a movie theater, it terms of killing a block of time with kids that could otherwise be trouble or bored. Perhaps the baby sitter only set out for a single afternoon at the park, but the kids were having so much fun, that she stayed longer, and by the time they left, the babysitter was tired and thought that it would be better to check into a motel rather than drive back. All reasonable if you ask me, and apparently to a lot of others that don’t live in Mayberry or have a local parlor.
Not knowing where the kids are for over 24 hours sets up the parents for possible criminal charges in some places, doesn’t it?
IANAL. I am certainly not a law professor. The Court created a doctrine and no one seems to agree on the basis for it. Barrett created a strained hypothetical. Somin et al went off on a “textualist” defense of Barret based not on the text of any law or constitution but of Barrett’s made up hypothetical. Somebody actually paid for a survey to show the common clay of the old West would interpret the made up text like Somin would. And found they wouldn’t. And the Volokh commentariat generated 50 mostly pointless comments on all this before lunch.
Do y’all have any idea how silly this looks to an outsider?
I don’t understand the problem with the doctrine from any perspective other than perhaps it may involve more time. By invoking the doctrine, the Court merely tells Congress that it needs to clarify the scope and meaning of a law. Clarifying scope and meaning is precisely the role of Congress, so this is something it is exclusively and uniquely qualified to do. The Court is neither qualified nor equipped to do this task.
What’s the problem?
Formally, it is unmoored from Constitutional language.
Functionally, the question of when additional clarity is required and when it is not is based not on the actual clarity of the language but on some sense of ‘majorness’ that is so nebulous it is as open an invitation for naked judicial policymaking as any doctrine I know.
But in this case, the call for additional clarity would be based on the lack of the law providing clear warrant for an agency’s actions. This is exactly the opposite of judicial policymaking, it’s intentional anti-policymaking.
Sorry, still don’t understand why there’s anything wrong with that, especially as a default choice. “We don’t know if what you want to do is permitted under the law, so we’re going to send this back to the lawmakers to say yay or nay.”
What other plan would be better? Literally anything else would be precisely the policymaking you are urging us to reject.
in this case, the call for additional clarity would be based on the lack of the law providing clear warrant for an agency’s actions
You don’t need a new and special doctrine for that – unclear laws are unclear laws, major Q or no.
The Major Questions doctrine is a dodge to avoid the real problem – cowards in Congress who unconstitutionally delegate legislative power to administrative agencies in order to try to shed electoral accountability.
Far better would be for the Supreme Court to rule that none of these regulations can take effect unless Congress has SPECIFICALLY passed the language of the regulation and it has been signed into law by the President.
Congress could still pass a bill requiring an agency to propose specific regulatory language and standards, but should be REQUIRED to process that language as a law. This would have three effects. First, it would assure that all legal rules are reviewed and the specifics approved by the elected representatives of the polity before implementation, which would enable those who vote for the rules to be held accountable for their votes. Second, it would increase the congressional workload, which would reduce the rate at which the government grows and gains power over the lives of citizens. Third, it would reduce the power of the unelected administrators in the executive branch and increase their accountability.
To my surprise, only 8% of the sample thought Blake violated the rule in this situation. Like Justice Barrett, I initially thought it pretty obvious that the sitter was in the wrong here. But the survey results suggest most ordinary people think otherwise
The survey results are contrived. Compare the ACB quote to the sample question.
It is not pedantic to point out that saying, “Make sure the kids have fun.” while handing over a credit card and saying, “Use this credit card to make sure the kids have fun this weekend.” are not the same thing. The former does not even actually authorize the use of the credit card. The later explicitly authorizes use of the credit card and directly states that “fun” should encompass the entire weekend.
It does not surprise me at all that only 8% feel that the much different scenario in the survey question violated the rule.
Good catch, I think. All analogies are slippery.
I think you’re infusing your own beliefs about the intellectual merit of MQD into the analogy instead of understanding the story as it is written. The most reasonable interpretation of the babysitter story is that the there is no conflict between the parent and babysitter, because the babysitter did exactly as the parent intended.
Just put yourself in the shoes of the characters. Why hand over a credit card at all? Why with the specific instructions to guarantee fun? Why is the parent away for a weekend?
The parent instructs the sitter to entertain the children for an entire weekend an accompanies that instruction with an unlimited budget to do so. A likely preceding statement is “We’re taking a holiday to the winery this the weekend. Take the kids to an amusement park or something while we’re away.” It should be easy to see how the scenario as described implies the sitter was unambiguously doing as instructed. If the parent had said “In case of emergencies” when handing over the card, the story would be quite different.
Honestly, if this is the sort of analogy that is suppose to rationalize MQD, then it’s not really based on anything, is it? It’s just legal jargon for arbitrary decision making.
I see the issue of the MQD (and Chevron) as properly resting on two principles, neither of which is getting much mention in the thread. So I’ll toss the ball out there and see who takes a swing at it.
(1) The source of the whole issue is the practice of delegating rule-making and/or judicial powers to executive branch agencies. I think a good case can be made that the whole practice violates both separation of powers and the non-delegation principle, and has been illegal since the Constitution was ratified.
Certainly if those delegations are valid, then Congress, when it does the delegating, must set its boundaries. Chevron deference can never be correct because if given, then in effect Congress has written the agency a blank check, which certainly does violate the separation of powers and non-delegation.
(2) If a valid delegation exists and is not bounded by a bright-line rule, the rule of lenity should be what determines its limits. Thus if the validity of a regulation is in doubt, the person on trial for breaking it (or the person who would be allowed to do more if the regulation is valid) should get to use whichever interpretation he thinks is more favorable to him.
A law that purported to *transfer* rulemaking power to an executive branch agency would be unconstitutional. A law that delegates a rulemaking power while keeping Congress’s power to legislate entirely intact violates no provision of the Constitution that I can see.
Congress makes the law, the executive branch carries it out. As long as the executive branch stays within the four corners of what Congress wrote in the law, it isn’t acting ultra vires. And Congress itself isn’t acting ultra vires as long as it can point to a conferred power under art. I(8) that it is exercising, and as long as it doesn’t violate any of the constraints elsewhere in art. I or in the bill of rights.
Already on shaky ground after EPA, the MQD became a farce after Biden v. Missouri and everything it’s critics claimed, in addition to being blatant in contradiction with textualism. “Waive” is clear. Arguing “waive” doesn’t necessarily mean “waive” because loans haven’t been waived before is absurd. It was a wholly political policy oriented decision and every Justice that signed onto it should be met with derisive laughter any time they start extolling the virtues of textualism (or claiming they’re not legislating from the bench, as should anyone claiming conservatives don’t do it just as much as liberals).
You’re just unhappy with this specific decision, I think. I’m pretty sure I could find a hypothetical ruling using the doctrine that you’d be delighted with.