The Supreme Court needs education in the obvious
Congress will continue to enact statutes of infinite opacity unless the Court declares them non-justiciable and sends them back for a do-over.
Justice Oliver Wendell Holmes was spot on in observing, “Judges are apt to be naif, simple-minded men, and they need something of Mephistopheles. We too need education in the obvious….”
The United States Supreme Court is clueless of the Mephistophelian motives of Congress. Indeed, the last Justice appointed with any congressional experience was Sherman Minton in 1949—74 years ago—and he left the bench in 1956—67 years ago.
The typical Member of Congress is a narcissistic professional politician. The paramount objective is to remain in public office indefinitely to attract public attention and to manufacture self-esteem. Most have not read a book since college. They have no convictions, only opportunistic, provisional viewpoints with shelf-lives approximating the next news cycle. They are like the fabled Lebanese school child when confronted with the question of the sum of 2 + 2. The retort, “Am I buying, or am I selling.?”
Congressional genius consists of passing infinitely vague statutes that can mean all things to all people. The vagueness enables every Member to tout to their constituents that they voted in favor of the policies that they pledged to support—even if it means contradicting one another. Constituents typically hear only from their Representatives and Senators.
The infinite vagueness leads to chronic litigation in which courts are confronted with tasks similar to Joseph interpreting Pharoah’s dreams. The federal code is littered with “national emergency powers” without definition of the key phrase—which arguably could include climate change, maleducation, illegal immigration, gun violence, an epidemic, high unemployment or inflation, or transgender surgeries.
Twin cases pending in the United States Supreme Court are illustrative. They challenge President Joe Biden’s invocation of the HEROES Act to cancel $400 billion in student loan obligations. It authorizes the secretary of education, during a presidentially declared national emergency, “to waive or modify any statutory or regulatory provision” applicable to student loan programs as may be necessary to prevent financial detriment to borrowers caused by the emergency. According to President Biden, COVID was a national emergency, and cancelling the student debt was necessary to prevent the borrowers from financial pain caused by the pandemic. Ordinarily, loan forgiveness is taxable income to the borrower. But in March 2021, President Biden signed the American Rescue Plan which made student debt cancelation tax-free under the Internal Revenue Code.
During the protracted pendency of the litigations, Congress predictably did nothing to moot the cases by amending the HEROES Act to explicitly authorize or reject Biden’s $400 billion in loan cancellations and take responsibility for the outcome. Members do not want responsibility. They want campaign slogans or talking points.
No matter what the Supreme Court decides, both liberal and conservative Members of Congress win with their respective constituents. If the Court nixes the loan cancelations, conservatives will boast they did not give away the store in the Heroes Act to their supporters. But liberals will tell their supporters the allegedly right-wing Trump Court has caused their financial woes by a parsimonious interpretation of the HEROES Act. Both sides will be fortified politically with no incentive to write non-equivocal statutes that make rather than to temporize over policy decisions.
This congressional evasion of responsibility will persist and the Court will chronically be confronted with interpreting statutes like music with no lyrics unless it raps Congress on the knuckles like a schoolmarm and declares infinitely vague statutes are not legally cognizable. They present non-justiciable questions. Only then will Congress return to legislating rather than delegating as Article I, section 1, of the Constitution mandates. That is obvious to anyone who knows anything about Congress.