The Rule of the Courts

Adopting a Canadian Style Legislative Override to Reconcile American Judicial Review...

clearly contemplated and authorized the agency endeavor in the primary legislation is also problematic. 109 MQD makes it more difficult for agencies to effectuate nimble and flexible responses to public welfare needs in an era of divided government such that it risks government paralysis in the face of overwhelming public need. Recent examples include the Court’s decisions to invalidate the Environmental Protection Agency’s (“EPA”) attempt lower U.S. greenhouse gas emissions to comply with the Paris Climate Accords and the U.S. Department of Education’s attempt to provide partial student loan forgiveness for income eligible borrowers at a time of burgeoning student loan debt and unaffordable housing. 110 Its subsequent decision to further debilitate administrative agencies by overruling what was known as Chevron Deference, worsens this problem by disallowing reviewing courts from deferring to agency rules drafted by government experts that were drafted and subject to public input to interpret primary legislation. 111 The Court’s decision to reverse Roe v. Wade (1973) and fifty years of prior precedent on abortion rights and conclude the U.S. Constitution’s Due Process Clause no longer guarantees abortion rights to women has opened upon a pandora’s box of state regulations that hinder women’s reproductive autonomy. 112 The Court then foreclosed the prosecution of Donald Trump for his attempted insurrection of January 6, 2021, by concluding, without any textual support in the U.S. Constitution, that a former president is immune from criminal prosecution for all official acts taken while in office. 113 The decision anticipated the impunity by which President Trump has behaved during his second term in office. The Court then refused to invalidate President Trump’s illegal firing of members of the Merit Systems Protection Board, National Labor Relations 109 See e.g., West Virginia v. EPA, 597 U.S. 697 (2022). 110 West Virginia v. EPA, 597 U.S. 697 (2022) and Biden v. Nebraska, 600 U.S. 477 (2023). 111 Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). 112 Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022). 113 Trump v. United States, 603 U.S. 593 (2024).

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