As y’all probably know, the Biden Administration’s student loan forgiveness program is before SCOTUS, and everyone is predicting that the Court kills the program. On the way to the program’s seemingly inevitable demise, the case raises two interesting issues. First, there’s a question of state standing involving the doctrine of special solicitude. Second, the merits implicate the major questions doctrine.

Jed Shugerman, a legal historian at Fordham Law, filed an amicus brief arguing that the Court should reach the merits and strike down the loan-forgiveness plan. This brief predictably pissed off Progressives who favor loan forgiveness. I think this raises a ton of interesting questions about the role of legal scholars who do public advocacy and amicus briefs. Upfront, I must acknowledge that I am currently bound to a truly ghastly amount of student loans. (Fun fact: the loan servicer that haunts my dreams at night is Mohela! That’s the same service whose interests the state is trying to assert before SCOTUS!) And as anyone who knows me or follows this blog realizes, I think the current version of the major questions doctrine is a dumb scourge on the public law canon. Dumb in that it is so ham-fisted that it would be funny if not for the stakes in many of the relevant cases.[1]

A short guide to the Shugerman brief

So should folks be mad at Jed Shugerman for this brief? Let’s chat about what’s in it. Towards the beginning of his brief, Jed argues that the student-loan program is pretextual.

The Government could have relied on a better fit, the Higher Education Act of 1965, which required [notice and comment] . . . . Instead, the Government used COVID as a pretext to use the post-9/11 Higher Education Opportunities for Students (HEROES) Act, to evade the process that Congress chose for such policies.

This focus on statutes has been a feature of Jed’s advocacy on student-loan forgiveness for months—he thinks that the Biden Administration basically whiffed in choosing to operate through the HEROES Act. Early on, he was also harshly critical of the government memos laying out the Biden Administration’s options. Later on in his brief, Jed argues that the Court has to reach the merits because the Government’s standing rule to the contrary would allow the Executive to shield its programs from judicial review. Jed argues that the Administration (or the left?) is playing the standing game in bad faith:

It is worth noting that, during the Trump Administration, its opponents (and indeed, the allies of this administration) litigated the abuse of executive power based on standing from indirect injuries and indirect causation. See, e.g., Trump v. Hawaii, 138 S. Ct. 2392(2020); DHS v. Regents, 140 S. Ct. 1891 (2020) . . . . It is all too convenient for those recent opponents of the last administration’s abuses to argue for a new directness rule against standing now that they are in power.

And on the major questions doctrine, Jed says that the Court should embrace a new “emergency questions doctrine.” According to Jed, emergency statutes pose a unique threat of executive aggrandizement. We must, he argues, be vigilant against the threat that these statutes pose. The emergency questions doctrine that he’s proposing isn’t really a substantive canon like the version of the major questions doctrine from West Virginia. Instead, he throws the major questions doctrine back to its root and treats it as an escape hatch for textualism and Executive deference. Jed’s emergency questions doctrine would elevate context over text. Context must provide for limitations on what Congress would have thought it was authorizing.

Should we all be mad at Jed?

I chose to write this post so that I could think about how we should critique legal scholars who do public advocacy. Here’s where I landed. First, legal scholars ought to take consistent positions that don’t alternate with election cycles. Second, legal scholars should probably make their priors as clear as possible so that they are playing it straight with the courts and the public. And third, legal scholars should meaningfully engage with scholarship cutting against their positions. There is, of course, room for analysis and disagreement of legal scholars with whom we disagree but who nonetheless follow these three criteria.

Looking at these criteria, I think we ought not to be mad at Jed. Jed has been very consistent and transparent throughout the loan-forgiveness saga that he’s mostly concerned with executive aggrandizement. That’s Jed’s “Rosebud.” Personally, I find this concern with executive aggrandizement a bit old-fashioned. Recently, the lefty legal community has reexamined its fixation on executive aggrandizement and—at least in some corners—concluded that judicial aggrandizement is the greater threat.[2] In the words of a recent panel in D.C., “Judges are the enemy.”

This has all been a crescendo. Years ago, Nicholas Bagley critiqued the Procedure Fetish, lawyers’ faith that agencies can achieve legitimacy by pursuing endless procedure. You could argue that Jed is the kind of guy Bagley was critiquing—much of his analysis of the student-loan program is based around the Biden Administration’s avoidance of notice and comment. In another context that’s more administrativist than left-learning, Eric Posner’s and Adrian Vermeule’s Tyrannophobia critiqued the legal culture’s fixation on averting a tyrant that, according to Posner and Vermeule, is unlikely to emerge. (I know that events having to do with one of these authors have changed how we ought to engage with Tyrannophobia.) As I said above, executive aggrandizement is Jed’s Rosebud; he’s pretty much always going to be open to the tyrannophobia critique unless he balances his work against other values and concerns. Maybe the best critique of Jed’s approach was offered on Jed’s podcast by Sam Moyn. Moyn has been critical of constitutionalism writ large. As Jed was pushing him on whether Moyn’s approach was too risky, Moyn responded that we must choose whether we want a “liberal[ism] of fear or of opportunity.” That kind of critique can be applied by Progressives who want to critique Jed’s approach to emergency authorities that we can use to accomplish Progressive ends.

This is all to say, there are plenty of ways—both from a Progressive and Administrativist perspective—to critique Jed’s whole approach, but that can’t be the criterion by which we grade legal scholars who are doing public advocacy. Progressive legal culture is too eclectic for all that.

Instead, I think we really ought to stick to those criteria outlined above. In the merits section of his brief, Jed goes to great pains to balance his native, forthright, and consistent concern with executive aggrandizement against criticisms that people have been sending his way over the last several months. Jed has gotten flak from folks like me for ignoring the threat posed by judicial aggrandizement. As the literature has recently established, the major questions doctrine is an example of a tool that the judiciary uses to reach its preferred outcomes and increase its decisionmaking authority vis-à-vis the political branches. Even if it limits Executive power, that authority flows to a super-charged judiciary in a way that can be just as threatening to democracy. So Jed’s critics have been ringing the alarm bell for him that he has to be mindful that he doesn’t unwittingly play in to the hands of the project for judicial self-aggrandizement.

To Jed’s credit, he’s found a clever way of redeveloping (restoring?) the major questions doctrine so that it can balance administrative law’s competing instincts. In Americana Administrative Law, I wrote:

The Nation faces a similar disequilibrium to the one that occurred in the early twentieth century. Administrative law these days is always dancing between its Scylla and Charybdis, presidential administration and judicial self-empowerment.

When I was writing this very pretentious reference, I thought—and still do think—that the legal left must reorient itself around Congress, legislative supremacy, and legislative constitutionalism. That option was the only path I could see forward. Jed’s not quite there with me. He’s very wed to an old school constitutionalism where we can trust courts to protect rights and our democracy. That perspective seems kind of nuts to me, but c’est la vie. But Jed’s version of the major questions doctrine has several attractive features that respond meaningfully to his critics. The version he’s espousing doesn’t seem to turn on the corrupting legal fiction that Congress “speaks” clearly when addressing major questions. Instead, Jed frontloads a second-order objective associated with the major questions doctrine: checking the Executive. Because he’s not relying on a crazy fiction about how Congress talks in the abstract, Jed’s free to limit his version of the major questions doctrine to areas where Executive aggrandizement is the most threatening. That change in rationale clears up one major issue with the major questions doctrine, that it’s a transsubstantive canon.[3] What’s more, Jed straight up tells the Court that the purpose of his major questions doctrine is too also check the colossal threat of judicial aggrandizement.

So on the three criteria that I think we ought to use to evaluate scholars in the context, I think Jed’s brief passes—at least on the merits. He’s been consistent, transparent about his priors, and has meaningfully engaged with criticisms of his work and with the literature.

I think on standing, Jed’s got more work to do to get a passing grade. Jed’s approach to standing is effectively a giveaway to the courts and to the states that are increasingly coming to dominate federal policymaking in areas like immigration. Jed would probably defend himself by saying, well that’s an equitable and remedial problem. Courts shouldn’t be granting nationwide injunctions even if states are allowed to bring suit. That’s very unsatisfying where the courts have given very little indication that they are contemplating a big shift in remedies and equity. At an oral argument earlier this term, several SCOTUS justices seemed genuinely indignant when an advocate argued that the Court had probably been misreading §706 of the APA as granting a vacatur power. Don’t hold your breadth for a decision limiting courts’ equitable power anytime soon. With that in mind, you have to call for a standing doctrine that balances the threats of Executive and judicial aggrandizement, must the same as Jed did with his version of the major questions doctrine.

Conclusion

This ultimately sucks for all the people who need relief. Although I’m not desperate for loan-forgiveness, its availability brought my wife and I some measure of emotional relief after staring at our colossal loan forms year after year. But I think the essence of a constructive Progressive legal culture is room for folks like Jed to insist on principles that they believe will serve the public’s interests in the long run, even if there’s a very non-academic pain to be inflicted on folks in the short term. For better or worse, Jed’s version of Progressivism is rooted in a constitutionalism where courts are a meaningful check on a threatening Executive branch. I don’t think his position is in any way a repudiation of anything essential to what makes a legal scholar or advocate a Progressive. Hell, he even wants the Administration to start over under another statute.[4]

This was a subjective post that selfishly helped me explore what I think law professors ought to try to do in their public advocacy and in litigation. That said, I would still plead Jed’s case. Even where I disagree, I think he’s been a consistent, transparent, and openminded advocate for his perspective. That’s pretty much all we can ask.

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[1] Okay, it’s still funny. In West Virginia, the Chief for the first time in a majority opinion hints that the major questions doctrine serves constitutional values after thirty years of the doctrine’s existence. What’s more, he spent zero time explaining what possible constitutional value the doctrine could be serving. It’s the dumbest mic-drop moment in the Court’s history. I mean, if you can’t smell the post-hoc rationalization here, I really can’t help you. These people are not even trying anymore!

[2] To be honest, as a person who falls in this bucket, I’m already starting to feel passe. The more extreme position is the one I associate with Sam Moyn; that constitutionalism writ large is the real problem.

[3] For a discussion of this feature of the major questions doctrine, you really ought to check out Dan Walter’s latest piece here.

[4] I tried to look at these two statutes a few months back. On a question on which I am far from expert, I concluded then that both statutory options had their pros and cons. I did not leave with any confidence that any loan-forgiveness program could survive this federal judiciary, at least under the current major-questions-doctrine paradigm.