Congress Should Prepare to Lead on Regulation


Congress Should Prepare to Lead on Regulation

July 31, 2023

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This piece originally appeared on the Federalist Society blog.

The Supreme Court recently ended President Biden’s student loan forgiveness program, ruling that federal law does not allow the Education Secretary to “rewrite the statute from the ground up.” This decision, together with a forthcoming case that may further limit the executive branch’s regulatory powers, may change the way the federal government regulates and shift greater power and work to the legislative branch. Whether Congress is ready or not, more responsibility for overseeing regulations and establishing rules through legislation may soon be in their hands.

In Biden v. Nebraska, the Supreme Court ruled in a 6-3 decision that the Biden administration overstepped its legal authority with its plans to cancel $430 billion in student loan principal. Seeing the plan as a clear, nonpartisan case of executive overreach, the majority’s opinion cited former Speaker Nancy Pelosi’s own reasoning expressed in 2021: “People think that the President of the United States has the power for debt forgiveness. He does not. He can postpone. He can delay. But he does not have that power. That has to be an act of Congress.”

Judicial pushback against executive overreach could continue with another case that will be argued this fall, Loper Bright Enterprises v. Raimondo. Legal experts anticipate that this case may lead the court to reconsider its practice of deferring to federal agencies when they broadly interpret statutes to issue regulations.

Continue reading at the Federalist Society blog.

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