Alisa Klein has a way with words. In a recent academic article, she links “two raging debates in administrative law” and makes them relevant to every reader.
“My goal was to take what are a number of very hot topics in Supreme Court current administrative law but try to present them in ways that are accessible,” says Professor Klein, who spent 30 years litigating for the U.S. Department of Justice before joining Wilmington University School of Law full time.
Alisa Klein’s Analysis of District Court Judges’ Authority
Her piece in the Administrative Law Review — “Major Questions Doctrine Jujitsu: Using the Doctrine to Rein in District Court Judges” — focuses on “to what extent individual federal judges at the lowest level, district court judges, have the power to block on a national scale the policies that are put in place by the president and the president’s subordinates,” Professor Klein says.
To make her case, she uses “the theories that the Supreme Court has given to justify its major questions doctrine.”
“If you’re an executive branch agency — like the U.S. Department of Health and Human Services or the U.S. Department of Labor — you can only do things that Congress, through legislation, has authorized,” says Professor Klein. “If what you’re doing is a major question, meaning a policy of vast economic, political significance,” the Supreme Court wants “to see specific language from Congress.”
She argues those principles should apply equally when considering “the role of a single judge within the federal government.”
A Case Study: CDC Mask Mandate
For example, to fight COVID-19, the Centers for Disease Control and Prevention (CDC) required masks on planes and other public transportation, prompting lawsuits. Professor Klein and her team defended the CDC’s position.
“At that lowest level of district court, one judge said that’s fine, that’s within the power that Congress gave to the CDC, which has explicit power to issue measures that prevent the spread of a communicable disease, and that it’s not a major question,” she says.
However, “another judge, who has no more power than the first in structure and who sits on the same court, reached the opposite conclusion but didn’t just say, ‘OK you five people who have identified yourselves in this suit don’t have to wear a mask,” Professor Klein explains. “What she said is, because what I think the CDC has done is unlawful, I’m knocking it out nationwide.”
Professor Klein contends the role of a single district court judge “is quite modest and is limited to saying, ‘I’m just resolving no more than necessary to give relief to the people who are suing.’”
“The article describes a three-prong test that provides a remedy for an aggrieved plaintiff while limiting the ability of the district court to bind entities that were not a party to the actual lawsuit in front of the judge,” says Phillip Closius, dean of Wilmington University School of Law. “Professor Klein provides an innovative solution to a real problem the district courts have struggled with for years.”
Professor Klein currently teaches two WilmU Law courses, Constitutional Law I and Torts, and is writing another article about district court judges’ authority.
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