Bedtime Reading for the High Court

Could President Biden’s student loan forgiveness plan fall prey to the Supreme Court’s movement to curb the administrative state? New amicus briefs in the Supreme Court’s upcoming case on the question shed light on the danger of the executive usurping powers granted in the Constitution to Congress — in the event, the cancellation by the Education Department of half a trillion dollars of student debt. In one brief, Philip Hamburger’s New Civil Liberties Alliance makes a comparison between the growth of the executive and a classic children’s book, “If You Give a Mouse a Cookie.” The book tells the story of a child whose kindness toward a mouse is taken advantage of by the rodent. “If you give a mouse a cookie, he’s going to ask for a glass of milk,” the book begins. “When you give him the milk, he’ll probably ask you for a straw.” When the mouse’s wish is granted, he makes another request of his generous host — tearing up a house not his own with an unending series of demands. In this case, the uncontrollable mouse is the executive branch. The NCLA’s brief accuses Mr. Biden’s plan of “trampling on the Constitution’s prohibition against executive agencies exercising Congress’ exclusive powers to enact laws and appropriate funds.” It’s no secret that over the past century, the executive and its administrative agencies have taken liberties in crafting what is effectively legislation without congressional approval through an ever-growing matrix of rules and regulations written by unelected bureaucrats and presidential appointees. Shielded by a precedent known as Chevron doctrine, federal agencies have taken cookies, milk, and straws from the congress with little judicial review.Yet Congress always had the power to limit the implementation of such regulations with its power of the purse. In Article I, Section Eight, the Constitution gives Congress the exclusive power to “pay the Debts and provide for the common Defence and general Welfare of the United States.” Article I, Section Nine further states that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”Another amicus brief by a group of prominent conservative politicians and jurists — including Governor Daniels of Indiana, Judge Michael McConnell, and Attorneys General Barr and Mukasey — suggests that it is precisely Congress’s ability to withhold funding for regulations that prevents federal agencies from making whatever rules as they please. If the agencies seize the power of the purse, the balance of power is reoriented to the executive.“The mere threat of funding cuts allows Congress to shape regulators’ decisions,” the amici write. “In fact, it stands to reason that Congress has delegated broad regulatory powers only because it expected it could always use its funding powers to direct and restrain regulators.” The men note, however, that in recent decades, presidents have violated that constitutional boundary with no castigation from the courts — in other words, they’ve taken cookies.Let’s hope that in the war between the executive and the legislature this court will enforce the separated nature of the government’s powers. It certainly has shown itself willing to look past Chevron deference and to take Mr. Hamburger’s briefs seriously. As much as we enjoy “If You Give a Mouse a Cookie,” there’s better reading available for the members of the high bench — like the fable of the United States Constitution.

Bedtime Reading for the High Court

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