Home/Recent kwiples > People >

Elena Kagan

Monday 3rd of November 2025

Regulations Congress did not know COVID was coming; and maybe it wasn't even thinking about pandemics generally. But that is immaterial, because Congress delegated broadly, for all national emergencies. It is true, too, that the Secretary’s use of the HEROES Act delegation has proved politically controversial, in a way that assistance to terrorism victims presumably would not. But again, that fact is irrelevant to the lawfulness of the program.  Elena Kagan, dissent in Biden v. Nebraska, et. al. © 2023 Kwiple.com
Regulations It is perfectly true that the language instructs the Secretary to “include” his new “terms and conditions” when he provides notice of his “waivers or modifications.” … But that is because the statute contemplates that there will be new terms and conditions to report. In other words, the statute proceeds on the premise that the usual waiver or modification will, contra the majority, involve adding “new substantive” provisions.  Elena Kagan, dissent in Biden v. Nebraska, et. al. © 2023 Kwiple.com
Regulations  The majority fails to read the statutory author-  zation right because it fails to read it whole. … Would Congress have given the Secretary power to wholly eliminate a requirement, as well as to relax it just a little bit, but nothing in between? The majority says yes. But the answer is no, because Congress would not have written so insane a law. … the majority’s most basic error: extracting “modify” from the “waive or modify” phrase in order to confine the Secretary to making minor changes. … the phrase as a whole says the opposite — tells the Secretary that he can make changes along a spectrum, from modest to substantial.  Elena Kagan, dissent in Biden v. Nebraska, et. al. © 2023 Kwiple.com
Regulations  The new major questions doctrine works not to better understand — but instead to trump — the scope of a legislative delegation. … In wielding the major-questions sword last Term and this one, this Court overrules those legislative judgments. The doctrine forces Congress to delegate in highly specific terms  — respecting, say, loan forgiveness of certain amounts for borrowers of certain incomes during pandemics of certain magnitudes. Of course Congress sometimes delegates in that way. But also often not. … It is hard to identify and enumerate every possible appli- cation of a statute to every possible condition years in the future. So, again, Congress delegates broadly. Except that this Court now won't let it reap the benefits of that choice.  Elena Kagan, dissent in Biden v. Nebraska, et. al. © 2023 Kwiple.com
Regulations The statute, read as written, gives the Secretary broad authority to relieve a national emergency’s effect on borrowers’ ability to repay their student loans. The Secretary did no more than use that lawfully delegated authority. So the majority applies a rule specially crafted to kill significant regulatory action, by requiring Congress to delegate not just clearly but also microspecifically.  Elena Kagan, dissent in Biden v. Nebraska, et. al. © 2023 Kwiple.com
Separation of powers Is there a person in America who thinks Missouri is here because it is worried about MOHELA’s loss of loan-servicing fees? I would like to meet him. Missouri is here because it thinks the Secretary’s loan cancellation plan makes for terrible, inequitable, wasteful policy. And so too for Arkansas, Iowa, Kansas, Nebraska, and South Carolina. And maybe all of them are right. But that question is not what this Court sits to decide. That question is “more appropriately addressed in the representative branches,” and by the broader public.  Elena Kagan, dissent in Biden v. Nebraska, et. al. © 2023 Kwiple.com
Separation of powers [T]he majority resorts, as is becoming the norm, to its so-called major-questions doctrine. And the majority again reveals that doctrine for what it is — a way for this Court to negate broad delegations Congress has approved, because they will have significant regulatory impacts. Thus the Court once again substitutes itself for Congress and the Executive Branch  — and the hundreds of millions of people they represent —  in making this Nation’s most important, as well as most contested, policy decisions.  Elena Kagan, dissent in Biden v. Nebraska, et. al. © 2023 Kwiple.com
Separation of powers MOHELA is fully capable of representing its  own interests, and always has done so before. The injury to MOHELA thus does not entitle Missouri — under our normal standing rules—  to go to court. And those normal rules are more than just rules: They are, as this case shows, guarantors of our constitutional order. The requirement that the proper party — the party actually affected—  challenge an action ensures that courts do not overstep their proper bounds.  Elena Kagan, dissent in Biden v. Nebraska, et. al. © 2023 Kwiple.com
Separation of powers Our third-party standing rules … exist to separate powers in that way — to send political issues to political institutions, and retain only legal controversies, brought by plaintiffs who have suffered real legal injury. If MOHELA had brought this suit, we would have had to resolve it, however hot or divisive. But Missouri? In adjudicating Missouri’s claim, the majority reaches out to decide a matter it has no business deciding. It blows through a constitutional guardrail intended to keep courts acting like courts.  Elena Kagan, dissent in Biden v. Nebraska, et. al. © 2023 Kwiple.com
Separation of powers The policy judgments, under our separation of powers, are supposed to come from Congress and the President. But they don’t when the Court refuses to respect the full scope of the delegations that Congress makes to the Executive Branch. When that happens, the Court becomes the arbiter — indeed, the maker—of national policy. … (“The Court, rather than Congress, will decide how much regulation is too much”). That is no proper role for a court. And it is a danger to a democratic order.  Elena Kagan, dissent in Biden v. Nebraska, et. al. © 2023 Kwiple.com
Separation of powers Wielding its judicially manufactured heightened-specificity requirement, the Court refuses to acknowledge the plain words of the HEROES Act. It declines to respect Congress’s decision to give broad emergency powers to the Secretary. It strikes down his lawful use of that authority to provide student-loan assistance. It does not let the political system, with its mechanisms of account- ability, operate as normal. It makes itself the decisionmaker on, of all things, federal student-loan policy. And then, perchance, it wonders why it has only compounded the “sharp debates” in the country?  Elena Kagan, dissent in Biden v. Nebraska, et. al. © 2023 Kwiple.com
Supreme Court After today, no one will have to go back 50 years for the classic case of the Court manipulating standing doctrine, rather than obeying the edict to stay in its lane.  Elena Kagan, dissent in Biden v. Nebraska, et. al. © 2023 Kwiple.com
Supreme Court The result here is that the Court substitutes itself for Congress and the Executive Branch in making national policy about student-loan  forgiveness. Congress authorized the forgive- ness plan (among many other actions); the Secretary put it in place; and the President would have been accountable for its success or failure. But this Court today decides that  some 40 million Americans will not receive the benefits the plan provides, because (so says  the Court) that assistance is too "significan[t]." … the Court, by deciding this case, exercises authority it does not have. It violates the Constitution.  Elena Kagan, dissent in Biden v. Nebraska, et. al. © 2023 Kwiple.com
Supreme Court To state the obvious, judges do not know what scientists and public health experts do. So it is alarming that the Court second-guesses the judgments of expert officials, and displaces their conclusions with its own. In the worst public health crisis in a century, this foray into armchair epidemiology cannot end well. I fervently hope that the Court’s intervention will not worsen the Nation's COVID crisis. But if this decision causes suffering, we will not pay. Our marble halls are now closed to the public, and our life tenure forever insulates us from responsibility for our errors. That would seem good reason to avoid disrupting a State's pan- demic response. But the Court forges ahead regardless, insisting that science-based policy yield to judicial edict. Elena Kagan, dissent in South Bay United Pentecostal Church v. Newsom © 2022 Kwiple.com
Supreme Court Today’s ruling illustrates just how far the Court’s “shadow-docket“ decisions may depart from the usual principles of appellate process. … the majority’s decision is emblematic of too much of this Court’s shadow docket decisionmaking — which every day becomes more unreasoned, inconsistent, and impossible to defend. Elena Kagan, September 1, 2021, on the decision by Justices Alito, Barrett, Gorsuch, Kavanaugh and Thomas to not enjoin an unconstitutional Texas law that banned abortions after six weeks of pregnancy and allowed Texas to evade judicial scrutiny by empowering bounty hunters to enforce it © 2021 Kwiple.com
Voting rights If a single statute represents the best of America, it is the Voting Rights Act. It marries two great ideals: democracy and racial equality. … If a single statute reminds of us of the worst of America, it is the Voting Rights Act. Because it was — and remains — so necessary. Elena Kagan, dissent in Brnovich v. Democratic National Committee © 2021 Kwiple.com
 
Voting rights Whenever it can, the majority gives a cramped reading to broad language. And then it uses that reading to uphold two election laws from Arizona that discriminate against minority voters. I could say—and will in the following pages—that this is not how the Court is supposed to interpret and apply statutes. But that ordinary critique woefully under- sells the problem. What is tragic here is that the Court has (yet again) rewritten —in order to weaken—a statute that stands as a monument to American greatness, and protects against its basest impulses. Elena Kagan, dissent in Brnovich v. Democratic National Committee © 2021 Kwiple.com