major questions nondelegation

---

MERRI OK

SEE WEST VA V EPA 6 22

ROBERT VS BRETT K ON TARIFFS 2 26?

see student debt ACB

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AN 2 26

Trump](https://www.alternet.org/2020/11/trump) is furious after losing his tariff case before the U.S. Supreme Court. The high court ruled that Trump overstepped his authority when he tried to make "emergency" tariff laws in retaliation against countries that weren't nice to him.

Speaking about the matter on Friday, legal analyst and CNN reporter Paula Reid noted that even Trump's own lawyers have been shocked by the Supreme Court granting him so much leeway on the "unitary executive theory."

"So, there's been a question about whether there still is a respect for separation of powers, and I think that's what really matters," Reid said. "That matters so much in the Trump administration right now because I think we're seeing a lot of questions about how he might use his office to take over — he has taken over the Justice Department. Used that to pursue his enemies, use that to try and put his thumb on the scale of the election. Will there be a check on President Trump?"

CNN legal analyst Elliot Williams cited the separation between Justice Brett Kavanaugh and Chief Justice John Roberts, wondering if there's an "intellectual fracas" brewing between the two conservatives on the law.

He predicted that over the next few years, there will likely be more conversation about the "Major Questions Doctrine." It is an idea that in order for the president to act, Congress must give him the power to do so under the law.

Kavanaugh and Roberts clashed in the ruling today, where Kavanaugh said that an issue like this is "squarely in the authority of the president," Williams characterized.

"So, I think the next several years of debates between the conservatives over what the reach of conservative jurisprudence ought to be," he added. "We saw the road map for it here."

New York Times White House correspondent Zolan Kanno-Youngs recalled the conversation he had with Trump in the Oval Office, where he was "candid" about "just how disappointed he would be in the justices he helped put on the Supreme Court. It almost seemed like he would personally be insulted by this."

Kanno-Youngs noted that it will cause problems for Trump in other foreign policy because he uses tariffs as a "diplomatic sledgehammer, right? This is what he hangs over nations when they don't do what he wants. It was his threat before Greenland."

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aN ah 7 23

back in the 1990s or 2000s, legal scholars were not using the term "major questions doctrine" in connection with the U.S. Supreme Court. But in recent years, the concept has had a strong influence on the decisions of the Roberts Court's radical-right supermajority.}:

The "major questions doctrine," a concept promoted by the right-wing Federalist Society, essentially argues that if a presidential administration or a government agency wants to decide something of national importance, there must be clear congressional authorization.

The New York Times' Adam Liptak examined the rise of the major questions doctrine in a report published on March 6. And journalist/author Ian Millhiser, in an article published by Vox on July 17, offers some examples of how the doctrine is being applied by the Roberts Court.

"In the less than three years since President Joe Biden took office," Millhister explains, "the Supreme Court has effectively seized control over federal housing policy, decided which workers must be vaccinated against COVID-19, stripped the EPA of much of its power to fight climate change, and rewritten a federal law permitting the secretary of education to modify or forgive student loans. In each of these decisions, the Court relied on something known as the 'major questions doctrine,' which allows the Court to effectively veto any action by a federal agency that five justices deem to be too economically significant or too politically controversial."

Millhiser adds, "This major questions doctrine, at least as it is understood by the Court's current majority, emerged almost from thin air in the past several years. And it has been wielded almost exclusively by Republican-appointed justices to invalidate policies created by a Democratic administration."

The journalist/author notes that the Roberts Court "did not invoke" the major questions doctrine once when Donald Trump was president but has used it "aggressively" during the Biden Administration.

"This doctrine is mentioned nowhere in the Constitution," Millhiser notes. "Nor is it mentioned in any federal statute. It appears to have been completely made up by justices who want to wield outsize control over federal policy. And the implications of this doctrine are breathtaking. In practice, the major questions doctrine makes the Supreme Court the final word on any policy question that Congress has delegated to an executive branch agency — effectively giving the unelected justices the power to override both elected branches of the federal government.

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an 6 23

Amy Coney Barrett was one of the conservative justices who struck down Biden's loan forgiveness plan, but her explanation as to why included talk of babysitters and amusement parks left some people scratching their heads in confusion.

Barrett used the opinion, which ruled that the Biden administration didn't have the authority to authorize the forgiveness, to push for the "major questions doctrine," according to CNN.

"The so-called major questions doctrine says that executive branch agencies only have authority to take aggressive unilateral action of significant political or economic importance if Congress explicitly gives it such power," the news network reported. "The Supreme Court’s use of the major questions doctrine to throw out Biden’s loan forgiveness program struck a nerve that went beyond educational policy – with the conservative justices and liberal justices sparring over how the controversial legal theory that has been used, with increasing frequency, to strike down unilateral acts of executive branch authority."

In order to explain how this particular legal theory comes into play with student loans, Barrett took us all back to elementary school with a unique analogy about a babysitter spending the parents' money on kids she's watching.

According to CNN's report:

"A second hypothetical centered on a babysitter who took the kids to an amusement park for the weekend, having been given a parent’s credit card and told: 'Make sure the kids have fun,'" CNN reported. "Emboldened, the concurring babysitter takes the kids on a road trip to an amusement park, where they spend two days on rollercoasters and one night in a hotel."

This, Barrett suggests, is the equivalent of the government cancelling those student loans. Because the law didn't give explicit authority to do so, she reasons, it would be unreasonable to assume it has that power.

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an 3 23

ten or 15 years ago, no one was using the term "major questions doctrine" in connection with the U.S. Supreme Court. The right-wing legal concept, which has been promoted by the Federalist Society and is now being embraced by the Roberts Court's Republican supermajority, argues, in essence, that if a presidential administration or a government agency wants to decide something of national importance, the action must have clear congressional authorization.

The New York Times' Adam Liptak examines the rise of the "major questions doctrine" in an article published on March 6, explaining why it is getting in the way of President Joe Biden's agenda.

"It has been only eight months since the Supreme Court first invoked the 'major questions doctrine' by name in a majority opinion, using it to limit the Environmental Protection Agency's power to address climate change," Liptak explains. "Last week, the Court seemed poised to use it again, to kill the Biden Administration's plan to cancel more than $400 billion in student loans."

Liptak goes on to discuss a 54-page study that was conducted by William & Mary Law School and published by the Social Science Research Network (SSRN) on March 2. William & Mary law professor Allison Orr Larsen, in the report, notes that the phrase "major questions" was "used just once by any federal judge before 2017, and in only five federal decisions — at any level of court — before 2020." Larsen also pointed out that the term "major questions" was heard at a Federalist Society gathering in 2016.

Liptak observes, "The turning point came in 2017, when Justice Brett M. Kavanaugh, then a judge on the U.S. Court of Appeals for the District of Columbia Circuit, used the term in a dissent…. Scholars have raised objections to the major questions approach, saying it had changed the rules in the middle of the game and had, in any event, placed unrealistic burdens on Congress."

According to Larsen, calling a legal idea a "doctrine" can increase its prominence — and that includes the major questions doctrine.

Larsen told the New York Times, "You study it for the bar exam. It gets its own section on the syllabus."[link to art?]

---

WTF?

Harvard Journal of Law & Public Policy [Vol. 37

https://www.harvard-jlpp.com/wp-content/uploads/sites/21/2014/05/37_2_377_Levey_Klukowski.pdf

TAKE CARE NOW: STARE DECISIS AND THE

PRESIDENT’S DUTY TO DEFEND ACTS OF CONGRESS

CURT A. LEVEY* & KENNETH A. KLUKOWSKI**

INTRODUCTION

On January 20, 1981, Ronald Wilson Reagan took the Article

II oath of office to become the fortieth President of the United

States.1 Following his inaugural address to the assembled

throng on the National Mall streaming west from the Capitol,

Reagan entered the Capitol building for the traditional lunch

with members of Congress in Statuary Hall.2 On that day,

President Reagan also established what is now a tradition of going

to the President’s Room in the Capitol after taking his oath to

sign a series of executive orders and officially transmit to the

Senate his first series of nominations for many Cabinet-rank

officials and various other principal officers.3

Now step away from history into an alternate reality.

Imagine that in the aforementioned series of nominations, there was

no Secretary of Education. The explanation is found in one of

President Reagan’s executive orders. The President is acting

upon the position he articulated as a candidate in 1980, that the

* President, Committee For Justice. J.D. 1997, Harvard Law School.

** Research Faculty, Liberty University School of Law. Senior Legal Analyst,

Breitbart News. B.B.A. 1998,University of Notre Dame; J.D. 2008, George Mason University.

See U.S. CONST. art. II, § 1, cl. 8 (Presidential Oath Clause).

Fifty-Seventh Presidential Inauguration: Inaugural Luncheon, JOINT CONGRESSIONAL COMMITTEE ON INAUGURAL CEREMONIES,

http://www.inaugural.senate.gov/days-events/days-event/inaugural-luncheon,

[http://perma.law.harvard.edu/0VWv4bKbMBp].

See Obama to officially sign Cabinet nominations, ASSOCIATED PRESS (Jan. 21,

2013), http://news.yahoo.com/obama-officially-sign-cabinet-nominations163831156--politics.html, [http://perma.law.harvard.edu/08xjhbKD2v6]. In the

Appointments Clause, U.S. CONST. art. II, § 2, cl. 2, the Constitution differentiates

principal officers from inferior officers in the Executive Branch, where the former

are presidential nominees subject to Senate confirmation, and the latter can be

directly appointed by the President, department heads, or the courts. Morrison v.

Olson, 487 U.S. 654, 670–73 (1988).

---

378 p

Department of Education is unconstitutional, 4 as is the Act of

Congress that created it and annually authorizes it. Therefore,

President Reagan (1) will not nominate any principal officers to

lead this agency; (2) will not appoint any inferior officers to

implement its programs; (3) will order all civil servants in the

agency not to do any work for its programs; (4) will spend no

money on any of the agency’s programs (beyond the salaries

and benefits for employees), even if appropriated by Congress;

and (5)—especially relevant to this Article on the duty to defend—will not defend any aspect of the agency or its programs

against any legal challenges.

Similarly, the Reagan Administration will not enforce or defend myriad provisions of the Clean Air Act,5 Clean Water Act,6

and Endangered Species Act,7 as the President deems those

statutes to be in excess of Congress’s enumerated powers under the Commerce Clause.8

:{:{}:

Moreover, the President is ordering

the Attorney General to identify additional Acts of Congress

that are unconstitutional in whole or in part, as determined in

accordance with the original meaning of Congress’s enumerated powers in Article I, Section 8 of the Constitution, so that he

may order such acts to be left dormant and undefended. The

President is confident there are many such statutes and will

also, by executive order, repeal all regulations implementing

those statutes, once identified.

President Reagan informs the nation that he can do so because the Constitution requires him to “take Care that the Laws

See Julie Borowski, Abolishing the Department of Education is the Right Thing to

Do, FREEDOMWORKS (Sept. 19, 2011), http://www.freedomworks.org/blog/

jborowski/abolishing-the-department-of-education-is-the-righ,

[http://perma.law.harvard.edu/0AqLHzdhUwM].

Pub. L. No. 91-604, 84 Stat. 1676 (1970); Pub. L. No. 95-95, 91 Stat. 685 (1977).

Although the 1970 statute is commonly referred to as the Clean Air Act, the original

Clean Air Act is Pub. L. No. 88-206, 77 Stat. 392 (1963). It has been amended several

times. The official titles of the 1970 and 1977 statutes are the Clean Air Act Amendments of 1970 and 1977, respectively. (Years later, there would also be the Clean Air

Act Amendments of 1990. Pub. L. No. 101-549, 104 Stat. 2399). The 1970 and 1977

amendments largely supplanted the 1963 statute with sweeping expansions of federal power that generated the constitutional concerns relevant to this Article.

Clean Water Act of 1977, Pub. L. No. 95-217, 91 Stat. 1566. A predecessor to

this statute was the Federal Water Pollution Control Act Amendments of 1972,

Pub. L. No. 92-500, 86 Stat. 816, passed shortly after the Clean Air Act, see supra

note 5, as part of the same legislative agenda.

Endangered Species Act of 1973, Pub. L. No. 93-205, 87 Stat. 884.

See U.S. CONST. art. I, § 8, cl. 3.

end

424

Harvard Journal of Law & Public Policy [Vol. 37 Affordable Care Act in its entirety.198 Even though this is only a district court decision, all the relevant federal departments and Cabinet secretaries were named as defendants in the case, and so they are bound by the district court’s order permanently enjoining any of them from implementing any provision of the Act. The President then further orders the Attorney General not to appeal the district court’s decision. We doubt that those who have cheered President Obama’s refusal to defend DOMA would likewise applaud the scenario we have just painted. Yet, the only barrier to such a scenario is the Take Care Clause and the President’s duty to defend. In sum, the President’s duty—subject to the narrow exceptions discussed in this Article—is to facilitate a judicial determination of a challenged statute’s constitutionality and to provide the best possible arguments in its defense, even if he regards the law as unconstitutional. That duty is fully discharged even if the statute is struck down, as the President believes it should be. Thus, in a strong sense, the President cannot lose: If the law truly is unconstitutional, then the court system will vindicate the President by striking it down. If, instead, the courts uphold the statute, the President will have fulfilled his constitutional duty and can rest assured that the law was determined to be constitutional only after thorough consideration of the best arguments on both sides.

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7 22

Signed into law by President Richard Nixon in 1970 with the intention of reducing and controlling air pollution nationwide, the Clean Air Act is the nation’s primary federal air quality law, giving the Environmental Protection Agency (EPA) the authority to regulate air emissions from sources that are either stationary (e.g., power plants) or mobile (e.g., vehicles).

This article was produced by Earth | Food | Life, a project of the Independent Media Institute.

On June 30, the Supreme Court limited that authority with its controversial ruling in the case of West Virginia v. Environmental Protection Agency, dealing a heavy blow to President Joe Biden’s climate agenda. At the center of the case is Section 111 of the Clean Air Act, which establishes mechanisms that the EPA can use in order to control emissions of air pollutants from stationary sources like power plants.

Writing the opinion for the conservative majority, with the three liberal justices dissenting, Chief Justice John Roberts said that Section 111 does not give the EPA the authority to regulate greenhouse gas emissions from existing power plants by “generation shifting”—which could force power plants to move away from coal to renewable energy. The ruling removes a primary mechanism the Biden administration has for achieving the president’s goal of halving carbon dioxide emissions by 2030—and moving the nation to a low-carbon economy.

Major Questions

Roberts said that the basis for the court’s decision was the “major questions doctrine” (MQD)—a phrase that no previous Supreme Court majority had explicitly invoked. In the majority opinion, Roberts writes that the MQD has now been invoked “because it refers to an identifiable body of law that has developed over a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.”

He said that if lawmakers had wished to grant the EPA the power to mandate how power plants generate electricity, the law should have stated “clear congressional authorization,” adding that “our precedent counsels skepticism toward EPA’s claim” that the law “empowers it to devise carbon emissions caps based on a generation shifting approach.” Basically, the ruling states that the EPA would overstep its remit in its regulation of power plant emissions if it mandated a move to renewable energy.

Justice Elena Kagan, writing in dissent, said that in using “capacious terms” in Section 111, Congress gave the EPA a wide berth in designing its emission reduction rules. “The current Court is textualist only when being so suits it,” she writes. “When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards.” She further writes that the ruling “strips” the EPA of the “power Congress gave it to respond to ‘the most pressing environmental challenge of our time.’”

Cloudy: Zero-Carbon Future

If solar and wind energy are fully integrated into the global energy mix, renewable sources could provide up to 80 percent of the world’s electricity, according to the International Renewable Energy Agency, an intergovernmental organization based in Abu Dhabi that supports nations in the transition to sustainable energy. The United States plays a central role in the global shift to a low-carbon—and ultimately, zero-carbon—economy: After China, it is the world’s second-biggest consumer of energy.

Generating electricity without emissions is one of the primary strategies we have in order to achieve net-zero emissions—something that the National Academies of Sciences, Engineering, and Medicines asserts is technologically feasible in the U.S. by 2050. But by limiting the federal government’s ability to cap emissions by mandating a shift to renewable power generation, the Supreme Court has made a zero-carbon future more difficult not only for the U.S. but also for the world. “If the current rate of emissions continues, children born this year could live to see parts of the Eastern seaboard swallowed by the ocean,” Kagan wrote in the court’s dissenting opinion. This is not just a problem in the U.S.: Several islands in the northern Solomon Islands, a nation of hundreds of islands in the south Pacific, have already been swallowed by the rising sea levels.

“Whatever else this Court may know about, it does not have a clue about how to address climate change,” Kagan writes. “And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself — instead of Congress or the expert agency — the decisionmaker on climate policy. I cannot think of many things more frightening.”

Dena Adler, a research scholar at the Institute for Policy Integrity at New York University School of Law, also questioned Roberts’ highly irregular use of the MQD. “The major questions doctrine is in part problematic because Congress has legislated for decades with an expectation that it can broadly authorize agencies to use their expertise,” she told E&E News. “Yet, as the court applied it today, the doctrine looks skeptically on agencies regulating under this broad authorization.”

In a statement, EPA Administrator Michael S. Regan said he is “deeply disappointed by the decision,” but noted that the agency “will move forward with lawfully setting and implementing environmental standards that meet our obligation to protect all people and all communities from environmental harm.”

‘Supremely Stupid’

The reaction from environmentalists has been unanimous and scathing.

John Noël, a senior climate campaigner with Greenpeace USA, called the ruling “irresponsible” and “supremely stupid,” in an email. “This ruling is going to hurt people. It’s going to hurt wildlife. It’s going to make it easier for business owners to challenge clean air regulations. If there was ever a doubt that this Supreme Court favors the powerful over the people, it’s gone.”

“How much damage can a conservative Supreme Court do to our rights in just a couple of weeks? Unfortunately, we know the answer, and it’s grim,” wrote actress and activist Julia Louis-Dreyfus, in an email.

“We should be outraged by what the Supreme Court has done,” said Jason Rylander of the Center for Biological Diversity, a nonprofit headquartered in Tucson, Arizona, in an online press briefing on July 1.

Kevin S. Curtis, the executive director of the Washington, D.C.-based nonprofit NRDC Action Fund, said in an email that the “deeply damaging” ruling “has set us back half a century—at a moment when… we have no time to lose,” adding that the decision is “radically out of step with settled law, scientific and medical consensus, and widely held public opinion.”

Biden’s Climate Toolbox

It is important to note that, while representing a significant setback to executive climate action, the ruling restricts—but does not eliminate—the agency’s ability to reduce power plants’ carbon pollution. President Biden still has an array of levers at his disposal, several of which he has yet to pull. He can, for example, declare a climate emergency under the National Emergencies Act, which would unlock a variety of presidential powers. “If Biden were, for instance, to ban just crude oil exports, he could cut greenhouse gas emissions by up to 165 million metric tons each year—the equivalent of shuttering 42 coal plants,” write Jean Su and Maya Golden-Krasner, both of the Center for Biological Diversity, in the Nation.

“President Biden must take charge as the climate president,” Gaby Sarri-Tobar of the Center for Biological Diversity and Ted Glick of Beyond Extreme Energy wrote in an email. “He’s already shown a willingness to do this by invoking the Defense Production Act to boost domestic manufacturing of renewable energy technology and advance energy justice by giving frontline and labor communities a seat at the table.”

Additionally, states and local governments can also regulate their own emissions. “A bill passed in Maine [in 2019], for example, calls for emissions at 80 percent below 1990 levels by midcentury, with a halfway goal by 2030,” writes Hillary Rosner for Audubon, a nonprofit environmental organization. “And Hawaii’s 2018 legislation sets a goal of carbon neutrality by 2045. Connecticut and California, meanwhile, have been working to curb emissions for more than a decade.”

Lawmakers on Capitol Hill could also enact far-reaching clean energy legislation—and could even amend Section 111 of the Clean Air Act to give the EPA explicit authority to move power plants toward renewables in order to meet federally mandated emission reductions. And voters could elect and support climate-focused lawmakers—and get their friends, families and community members to do the same.

When the Going Gets Tough, the Tough Get… Voting

Curtis of the NRDC Action Fund said that the ruling “[shows] us that we cannot take legal and federal protections for granted.” Part of not taking those protections for granted means participating in our democracy, and that means voting, particularly casting ballots during midterm elections when federal legislators are elected. It is the members of the House and Senate who decide the federal government’s legislative agenda.

To put the nation on a zero-carbon pathway—and to withstand attacks from a conservative, activist Supreme Court—federal lawmakers must pass clear and strong climate legislation. That means getting climate-focused legislators into office on Capitol Hill. And that means getting climate-focused voters to cast their votes during the midterm elections.

In his email, Curtis called for a midterm election “get-out-the-vote” campaign to “defeat the anti-environment legislators who could pave the way for a conservative agenda that dismantles our rights and our future.” Similarly, the EPA’s largest union, AFGE Council 238, which called the court’s decision a “colossal mistake,” urged people to “demand climate justice” from their elected representatives.

“Without meaningful legislative progress in the coming months… the country will fall far short of its international pledges, which, given the scale of American emissions, will make it almost impossible for the world as a whole to fulfill its already unlikely targets,” writes David Wallace-Wells in the New York Times. “If Republicans win control of Congress in the November midterms, then the window on the prospect of such legislation may be shut for at least a few years.”

The bottom line is that the ruling, while disheartening (and to the environment and public health, even dangerous), is not a death knell for climate action. Like pro-choice supporters disappointed by the court’s recent overturning of Roe v. Wade, those who are concerned about the court’s EPA ruling could use this moment as a rallying cry to step up climate action. If it weren’t already abundantly clear, the Supreme Court—or rather, the conservative majority of the Supreme Court—has underscored that a fundamental part of climate action would be going to the polls during this year’s midterm elections.

Ensuring a healthy environment for ourselves, our families and our fellow Earthlings—for this and future generations—means getting involved in the political process, and that means voting. Voting also means getting the right to complain. So the next time you hear someone grumbling about the “supremely stupid” Supreme Court decision, ask them: “Are you voting on November 8?”

Author Bio: Reynard Loki is a writing fellow at the Independent Media Institute, where he serves as the editor and chief correspondent for Earth | Food | Life. He previously served as the environment, food and animal rights editor at AlterNet and as a reporter for Justmeans/3BL Media covering sustainability and corporate social responsibility. He was named one of FilterBuy’s Top 50 Health & Environmental Journalists to Follow in 2016. His work has been published by Yes! Magazine, Salon, Truthout, BillMoyers.com, CounterPunch, EcoWatch and Truthdig, among others.

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WEST VA V EPA AMICUS

Nos. 20-1530, 20-1531, 20-1778, 20-1780

In the

Supreme Court of the United States ___

STATE OF WEST VIRGINIA, et al.,

Petitioners,

U.S. ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

---

On Writs of Certiorari to the

United States Court of Appeals for the District

of Columbia Circuit

---

BRIEF OF THE AMERICA FIRST POLICY

INSTITUTE AS AMICUS CURIAE IN SUPPORT

OF PETITIONERS

---

JESSICA HART

STEINMANN

CRAIG TRAINOR

JOSHUA J. CAMPBELL

RACHEL JAG

AMERICA FIRST POLICY

INSTITUTE

1001 Penn. Ave. NW,

#530

Washington, DC 20004

(571) 348-1802

jsteinmann

@americafirstpolicy.com

C. BOYDEN GRAY

JONATHAN BERRY

Counsel of Record

MICHAEL BUSCHBACHER

JARED KELSON

BOYDEN GRAY

& ASSOCIATES PLLC

801 17th St. NW, #350

Washington, DC 20006

(202) 955-0620

berry

@boydengrayassociates.com

---

ABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI CURIAE ............................... 1

INTRODUCTION AND BACKGROUND ................. 2

SUMMARY OF ARGUMENT .................................... 6

ARGUMENT .............................................................. 8

I. This Court Should Take This Opportunity to

Develop Its Major Questions Jurisprudence. .... 8

II. Unless Cabined by the Major Questions

Doctrine, Statutory Ambiguity Threatens the

Separation of Powers. ....................................... 17

A. The Major Questions Doctrine Avoids NonDelegation Issues... 17

B. The Constitution Gives the President the

Power to “Recommend” Major Policy

Changes to Congress, Not Make Such

Changes Alone. .......................................... 22

III. The D.C. Circuit’s Expansive Reading of Section

111 is Wrong. .................................................... 25

CONCLUSION ......................................................... 31

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https://www.alternet.org/2022/05/safety-regulations/

Remember when lots of romaine lettuce was recalled because it was causing E.coli outbreaks? That was the Food and Drug Administration protecting us from getting sick.

Working in a warehouse? The Occupational Safety and Health Administration sets standards to ensure you don’t breathe in dangerous chemicals like asbestos.

Enjoying the fresh air on a clear, sunny day? Thank the Environmental Protection Agency for limiting the amount of pollution that can go into our air.

These agencies save lives. Since OSHA was established a half-century ago, its workplace safety regulations have saved more than 618,000 workers’ lives.

Republicans have been trying to gut these agencies for decades. Now, with the Supreme Court’s right-wing majority solidly in place, they have their best chance yet.

In January 2022, the Supreme Court blocked OSHA’s vaccine-or-testing mandate from going into effect, which was estimated to prevent a quarter-million hospitalizations.

The Court claimed that Covid isn’t an “occupational hazard” because people can become infected outside of work, and that allowing OSHA to regulate in this manner “would significantly expand” its authority without clear Congressional authorization.

This is absurd on its face. Section 2 of the Occupational Safety and Health Act of 1970 clearly spells out OSHA’s authority to enact and enforce regulations that protect workers from illness, injury, and death in the workplace. Congress doesn’t need to list every specific workplace hazard before OSHA can protect workers.

What this ruling tells us is that the Republican appointees on the Supreme Court are intent on gutting the power of agencies to issue regulations.

This term, the Court will also hear a case regarding the EPA’s authority to enforce the Clean Water Act. If the Court undermines the EPA’s authority, it will put our environment – and our health – at risk. Remember when the Cuyahoga River caught on fire because it was brimming with oil, acid, and factory chemicals? That’s what we may be returning to.

And what’s next? Will they gut the Federal Trade Commission and put us all at risk of being defrauded? Target the Securities and Exchange Commission and deregulate the financial sector, sparking another financial crisis?

Beware. If Republican appointees on the Supreme Court succeed in gutting regulatory agencies, we all lose. This agenda is anti-worker, anti-consumer, and anti-environment. The only thing it’s good for is corporate profits.[rr vid] https://www.youtube.com/watch?v=QRJmq9yCh-w&t=5s

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planes and train optimal spreaders?!

aha more regs tossed out for exceeding authority = ~ gubmint? corp laissez-faire pollute? kill workers?

rooted in fed overreach?

jones day, trump fav, clerked for clarence

The Centers for Disease Control and Prevention's mask mandate for domestic travelers was struck down on Monday by a federal jurist who was appointed by former President Donald Trump. The decision is the latest in a string of blows to President Joe Biden's efforts to curb transmission of the coronavirus.

The CDC last week extended the rule until May 3rd.

Judge Kathryn Kimball Mizelle of the United States District Court for the Middle District of Florida wrote in a 59-page ruling that the CDC exceeded its authority in requiring passengers on airlines and any other "conveyance" of public transportation to wear masks to help slow the spread of COVID-19.

Mizelle – whom the American Bar Associated dinged as "not qualified" after she was installed by Trump at the age of 33 – said that passengers who refused to comply and were "forcibly removed from their airplane seats, denied board at the bus steps, and turned away at the train station doors" had their rights against "detention and quarantine" violated.

"The Mask Mandate is best understood not as sanitation, but as an exercise of the CDC's power to conditionally release [from what?] individuals to travel despite concerns that they may spread a communicable disease (and to detain or partially quarantine those who refuse). But the power to conditionally release and detain is ordinarily limited to individuals entering the United States from a foreign country," she proclaimed.

“Wearing a mask cleans nothing,” Mizelle opined, even as cases are once again rising in pockets throughout the country, such as in Philadelphia, Pennsylvania, which has re-instituted a mask mandate. The virus has also been spreading in the nation's capital, infecting White House officials and House Speaker Nancy Pelosi (D-California).

Steve Vladeck, a law professor at the University of Texas, blasted Mizelle's order in a Monday afternoon tweet.

"This is both a big deal and a truly preposterous (nationwide) injunction. The CDC’s statutory authority is specifically directed at preventing the spread of communicable diseases across state lines," he wrote. "Where else is such spread more likely to occur than transport hubs like airports?"

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https://www.opednews.com/articles/SCOTUS-Conservatives-Decla-by-Jeanine-Molloff-Corporate-Rule_Deregulation-Regulation_Supreme-Court-SCOTUS-220210-234.html

[no lnx scary ads/code/polls?]

OpEdNews Op Eds 2/10/2022

SCOTUS Conservatives Declare War Against Decades of Regulatory Laws

By Jeanine Molloff (Page 1 of 4 pages)

Message Jeanine Molloff

Reprinted from buzzflash.com

Conservatives on the Supreme Court are working feverishly to potentially dismantle most government regulation that corporations want gone, by dredging up two legal fictions, the 'major questions' doctrine and the 'nondelegation' doctrine. If successful, the court could nullify decades of progressive laws on everything from food safety to environmental concerns. The court is dismantling democracy itself.

December 10, 2021, multiple tornados struck the American Midwest, including Missouri, Illinois, Arkansas, and Kentucky, destroying everything in their path. Amazon employees at the Edwardsville, Illinois 'fulfillment center' were trapped in a flimsy tinfoil structure as a killer tornado stampeded through the sleepy rural setting. Personal accounts from workers and their families claim that Amazon kept these workers as virtual hostages. Those who wanted to leave were threatened with disciplinary action. Though multiple tornado warnings were issued all day, workers weren't allowed to access emergency weather reports because of the company's 'no phone' policy, which forbids phones on the warehouse floor. Six Amazon employees died in that warehouse when the roof collapsed. These deaths were avoidable. In fact, you could argue that these deaths were facilitated by Amazon's systemic abuse of their employees.

That same night another lethal tornado hit the Mayfield Consumer Products Factory in Mayfield, Kentucky. Severe weather warning systems alerted the community some three hours before the tornado hit. Employees at the Mayfield factory were also being threatened by supervisors with disciplinary action, including termination if they left the facility. The employees remained on site, and eight died in the rubble. Kentucky tornado: Factory workers threatened with firing if they left before tornado, employees say (nbcnews.com)Survivors of deadly tornado that leveled factory sue employer, saying they weren't allowed to leave | PBS NewsHour

In both instances, workers placed in danger by their employers have a legal pathway to receive compensation for their injuries and demand their employer be held accountable. This is due, in part to various government agencies such as OSHA, whose job is to defend workplace safety. Without such agency regulation, workers have little to no recourse against abusive employers. These agencies determine and craft regulations meant to implement laws which are generally written in very vague and broad terms. In order to make the regulations fair and subject to various industry standards, these agencies are staffed by professionals in those specific areas of expertise. It should be unnecessary to explain this rationale; that a lawyer shouldn't be crafting regulations on something like pharmaceuticals, nuclear energy or vaccine safety but Supreme Court conservatives apparently never received the memo.

The conservatives on the court would use two legal fictions to deregulate the government, and yes, subsequently create a chaotic system which could, for instance, assign a lawyer to write regulations for nuclear waste storage or decide whether vaccines are medically safe.

The two legal fictions I am referring to are the 'major questions doctrine' and the 'nondelegation doctrine.' Both fictions were crafted specifically to undermine any regulations which did not receive a legislative permission slip from Congress for any rules or regulations not mentioned in the original legislation.

Conservative jurists know these two fictions are based on little more than rhetorical quicksand, but they don't care.

The intent of these two legal fictions is to bring all government agencies other than the military to a grinding halt. The conservatives on the Supreme Court are determined to create a judicial 'get out of jail free' card for the growing state of 'corporate capture' in the USA. Just this past month the Supreme Court reviewed and decided two cases, specifically engineered to test the "major questions doctrine." Both cases revolve around vaccine mandates. The court is also scheduled to hear a case which would test "nondelegation" in the coming weeks, and that case is West Virginia v. EPA.If these legal fictions are allowed to stand, the Supreme Court could dismantle much of the federal government, especially in the areas of consumer safety, worker rights, and environmental concerns.

The history of the "major questions" doctrine...

The genesis of this fiction began with a few cases [2?] which questioned whether federal agencies exceeded their authority granted by Congress as they interpreted various applications of the law. The goal of this fiction is clear. The "major questions" doctrine was implemented so conservatives could nullify any substantive agency authority and subsequent regulations.

This was the first step required to dismantle much of government. The far right-wing is patient if nothing else. Historically, there were three specific cases which served as the prerequisite to dismantling regulations which the business community was determined to kill.

Communications Act of 1934 and "major questions" kryptonite...

The first case dealt with the Communications Act of 1934, which established tariffs on telecommunications companies through the administration of the FCC or Federal Communications Commission. In 1994, the Supreme Court ruled that the FCC couldn't unilaterally "modify" tariffs for the telecommunications industry, deciding that such modifications would constitute a rewriting or revision of the Communications Act of 1934. Such changes would have to come about through the legislative process. The fact that this action on the part of the FCC would have virtually abolished those tariffs is not the major point. The goal of these judicial activists was to discredit the delegation of powers to federal agencies, as an illegitimate and thus unconstitutional grant of power to the administrative state.

FDA v. Brown & Williamson Tobacco Corp. Case....[no lnx]

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The second caseoccurred in 2000 and dealt with the tobacco industry. After undeniable testimony that tobacco does cause cancer, the Food and Drug Administration was unable to decide whether those same tobacco products should be regulated, because "Congress had implicitly denied it that jurisdiction through other anti-smoking laws.

[ Neil Gorsuch Has Raised Some Major Questions About the Major-Questions Doctrine | The New Republic]

FDA V. BROWN & WILLIAMSON TOBACCO CORP. (cornell.edu)

The Chevron Deference...

And finally, we have the third case otherwise known as 'the Chevron Deference.' This case attempted to reverse the attack on federal agencies by requiring courts to "defer to federal agencies" any question of agency scope or delegated authority to interpret and act on established federal law. The Chevron Deference represented a direct repudiation of the 'Major Questions' doctrine.

Established by the Supreme Court in the 1980's, the Chevron deference permitted federal agencies to devise regulations as an application of established law. The court 'deferred' to agency expertise in various professional fields from within the ranks--to create policies. This 'deference' was believed to be more accountable to democratic needs than the courts.Conservative scholars and litigators didn't share this belief, rather they viewed the "Chevron deference" as a power grab by federal agencies.

Neil Gorsuch brought the 'major questions' doctrine out of mothballs in the case of the Biden 'vaccine mandates,' which the court identified as BST Holdings v. OSHA. The Supreme Court struck down the Biden mandate which could have saved some 84 million lives, but that isn't the only concern. The implementation of the "major questions doctrine" sets the stage for further judicial incursions against any government regulations that conservatives or corporate interests despise, and Justice Neil Gorsuch wasted no time invoking this judicial fiction during the adjudication of the case, as a direct challenge to the older "Chevron deference" model.

To quote Matt Ford writing for the New Republic.

"Neil Gorsuch's recent invocation of the "major questions doctrine" has ominous implications for anyone not keen on watching the government drown in dysfunction." Neil Gorsuch Has Raised Some Major Questions About the Major-Questions Doctrine | The New Republic

In fact, Ford's piece in the New Republic explained both fictions as conservative creations created to dismantle government regulations, by making the daily workings of agencies wholly dependent on congressional approval for any actions, no matter how trivial.To quote Matt Ford:

"This obscure judicial precept, which has mostly developed over the past two decades, first arose in a series of cases where the court was asked to decide whether federal agencies had exceeded the power given to them by Congress when interpreting federal law. The thrust of the doctrine is relatively simple: If a federal agency wants to do something big, it must have a clear mandate from Congress to do so." Neil Gorsuch Has Raised Some Major Questions About the Major-Questions Doctrine | The New Republic

Now, given the fact that most legislation is written in broad and often vague terms, such a 'mandate' would force government agencies to come to a grinding halt. Gorsuch would soon claim that the "major questions doctrine" is a necessary and constitutionally supported act, as indicated in his own words.

"Why does the major questions doctrine matter?" he asked. "It ensures that the national government's power to make the laws that govern us remains where Article I of the Constitution says it belongs with the people's elected representatives. If administrative agencies seek to regulate the daily lives and liberties of millions of Americans, the doctrine says, they must at least be able to trace that power to a clear grant of authority from Congress." Neil Gorsuch Has Raised Some Major Questions About the Major-Questions Doctrine | The New Republic [see below]

And yet, what would constitute a ""clear grant of authority from Congress" as Gorsuch pontificates? Would every bit of daily minutia, (no matter how inconsequential), automatically require a congressional permission slip, either in the form of the original legislation or as newly formed amendments signed off into law? Could any organization function in a meaningful way under such uber-micromanagement? The legislative logjams which would result as a byproduct of this philosophy would essentially nullify all federal agency action that conservatives find abhorrent. For Gorsuch to rely on this pseudo-academic relic merely puts his hypocrisy in prominent display.

Matt Ford added that the revival of the "major questions doctrine" is less about returning power to Congress and more about a cynical judicial power grab, which is consistent with the conservative theology of that wing, a theology which is desperate to eradicate the "administrative state."

The Nondelegation Doctrine...the other half of this judicial power grab...

This next judicially 'legal' fiction otherwise known as the "nondelegation doctrine" was best characterized by Supreme CourtJustice Elena Kagan. She followed the logical steps forward regarding "nondelegation" and asserted that if open-ended delegations of power to federal agencies is deemed unconstitutional, "then most of government is unconstitutional dependent as Congress is on the need to give discretion to executive officials to implement its programs." Click Here

Considering Kagan's remarks, it's not much of a stretch to conclude that rendering most of government unconstitutional, is the long-term goal of the far right and their corporate masters. The GOP has been quite vocal about their quest to destroy all federal regulation outside of the criminal codes. GOP darling, Grover Norquist said it best, as he waxed fondly on the destruction of regulatory government, when he infamously described the government of his dreams. To quote:

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"I'm not in favor of abolishing the government. I just want to shrink it down to size where we can drown it--in the bathtub." Maybe They Forgot What "Conservative" Means at 1115.org (archive.org)

As it turns out, Neil Gorsuch has provided the means to achieving Norquist's goal, by reviving the "nondelegation doctrine." In fact, Gorsuch has a paper trail on this fiction through what is known in judicial circles as the 'Gundy' case, but the origins of nondelegation trace back to FDR and the New Deal.

FDR and how nondelegation was used to destroy part of the New Deal...

The "nondelegation doctrine" traces its creation to the New Deal, and basically claims that no branch of the government has the right to 'delegate' their duties and subsequent powers to another branch. This is the argument conservatives used to attack FDR's New Deal. In the SCOTUS case known as A.L.A. Schechter Poultry Corp v United States, conservatives challenged the National Industrial Recovery Act of 1933, which granted the president the power to designate and approve "codes of fair competition" affecting big industry and guaranteed the workers the right to collective bargaining. Our Documents - National Industrial Recovery Act (1933) The case that ended the National Recovery Act involved the poultry industry, but the effects of this case were much farther reaching. The act mandated the following.

"The NIRA sanctioned, supported, and in some cases enforced an alliance of industries. Antitrust laws were suspended, and companies were required to write industry-wide "codes of fair competition" that effectively fixed price and wages, established production quotas, and imposed restrictions on entry of other companies into the alliances. The act further called for industrial self-regulation and declared that codes of fair competition for the protection of consumers, competitors, and employers were to be drafted for the various industries of the country and were to be subject to public hearings. Employees were given the right to organize and bargain collectively and could not be required as a condition of employment to join or refrain from joining a labor organization." Our Documents - National Industrial Recovery Act (1933)

Though NIRA was not fully supported by either side, there were components which helped the average worker, especially the right to collective bargaining. The SCOTUS killed NIRA in the Schechter case and issued two decisions which abolished the increased 'lawmaking' power it granted the executive. The Schechter case resulted in the SCOTUS declaring that "Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested." Click Here

The second case was the Panama Refining Co v. Ryan, where the court decided that the specific problem with the NIRA statute was that ""Congress left the matter to the President without standard or rule, to be dealt with as he pleased," thus permitting "such a breadth of authorized action as essentially to commit to the President the functions of a Legislature, rather than those of an executive or administrative officer." Click Here

In other words, the executive is tasked with enforcing the law, not creating it. These two cases formed the legal framework that is now known as the "nondelegation doctrine," which asserts that Congress cannot, under any circumstance 'delegate' it's legislative power away to another branch of government. While it is wise to prevent any president from obtaining the immense power that NIRA granted; the concerns of 'nondelegation' architects focused on restraining actions which produced a level playing field for the average worker and lacked the principled stance they shouted from the rooftops. Had FDR been formed in the mold of an autocrat like Trump in the 21st century, such arguments would not have come from conservative ranks.

So, given this potential to logjam government, how would this doctrine play out in actual court cases? Our latest clues reside with the case known as West Virginia v. EPA and its predecessor, the Gundy case.

West Virginia v. EPA direct threat to agency authority....

West Virginia v. EPA poses the gravest threat to environmental protection to date. It could substantially dismantle government as we know it. To quote from Ian Milhiser's piece in Vox; "Neil Gorsuch's dream case could be the Earth's nightmare." A new Supreme Court case could gut EPA power on climate change - Vox This case represents the latest incarnation from a string of seemingly endless litigation against the Obama era Clean Power Plan, which was never implemented.

[How Obama's Clean Power Plan actually works a step-by-step guide - Vox ]

The plan was abandoned and relegated to a legislative "zombie state." The Biden administration stated last February it would not reinstate the program, yet the litigation determined to destroy it continues.

So, why would the fossil fuel industry continue a battle against a dead policy? Well, the battle isn't limited to the Obama plan. The fossil fuel industry wants the court to strike down any substantive action taken by the EPA to limit greenhouse gases. That's the short game for conservatives. The long game is far more menacing. West Virginia v. EPA could be the case which grants the Supreme Court a 'veto power' not only over the Biden agenda but also a veto power over any government action or regulation conservatives' challenge. [The Supreme Court's coming war with Biden, explained - Vox]

Unfortunately, there's far more at stake according to Ian Milliser, writing for Vox. To quote Millhiser,

"..."The most aggressive arguments against the Clean Power Plan wouldn't just apply to environmental regulations they could also fundamentally alter the structure of the US government, stripping away the government's power on issues as diverse as workplace safety, environmental protection, access to birth control, overtime pay, and vaccination." A new Supreme Court case could gut EPA power on climate change - Vox

The ramifications are enormous. Hundreds of laws could be severely weakened to the point of uselessness or perhaps, deactivated, if the "nondelegation doctrine" is allowed to dictate and create a 'judicial' administrative state.

Nondelegation comes in different forms....

Just when you thought things couldn't get any more confusing, the Supreme Court conservatives' step in and make the situation worse. Apparently, there are various degrees of 'nondelegation 'which only the court conservatives can decipher. Like high priests guarding the sacred text, they determine the 'flavor' of the month regarding nondelegation.

Presently, there are two dominant theories on nondelegation, one coming from Justice Clarence Thomas and the other from Justice Neil Gorsuch. Both represent a judicial power grab for the Supreme Court. Of the two, Clarence Thomas' interpretation is far more radical, and would simply deny federal agencies the right to craft any binding regulations period. Justice Thomas claims that any government policy or decision which "involves an exercise of policy discretion" in turn "requires an exercise of legislative power." Dep't of Transp. v. Ass'n of Am. Railroads :: 575 U.S. _ (2015) :: Justia US Supreme Court Center Obviously, this opinion would immediately and retroactively dismantle all agency regulations, possibly going back for decades. Important and hard-fought existing legislation like the Clean Air Act would be nullified, unless Congress passed a new law which specifically listed every power. Anything omitted by poorly written legislation would not exist. Pair this interpretation with the deadlock generated by the filibuster and we have a recipe for chaos.

The other theory on "nondelegation" comes from a dissenting opinion in the case of Gundy v. United States, written by Neil Gorsuch.This opinion stated that any law which authorizes or 'delegates' a federal agency the power to issue regulations, must be "sufficiently definite and precise to enable Congress, the courts, and the public to ascertain' whether Congress's guidance has been followed." Click Here

Gorsuch's approach is, in some ways, more dangerous than Thomas's. The problems with this statement are vast. What would constitute the criterion for the "sufficiently definite and precise" standard? Who would decide this? This vague language allows the court to take power it was never intended to have.

Conclusion:

As FDR warned in 1937, "The Constitution of 1787 did not make our democracy impotent." "One Third of a Nation": FDR's Second Inaugural Address (gmu.edu) Yet, that is exactly what present conservatives on the Supreme Court are doing by dismantling government via judicial fiat. Agencies like OSHA were created to prevent the type of employee abuse we witnessed December 10, when Amazon employees had to choose between their jobs or their very lives.

Like the trapped Amazon workers who died due to employer abuse, we are trapped in an existential spiral into the new Slavery 2.0. This is a political and economic slavery which allows no real judicial relief. The radical conservatives on the Supreme Court have abused the trust of their appointed office. They steal power using legal fictions born from rhetorical deceit and entrenched hubris. Justices Roberts, Thomas, Alito, Kavanaugh, Gorsuch, and Coney-Barrett have cynically banded together to sacrifice actual democracy on the altar of litigious procedure and judicial dictates. The architects of this power grab, namely Kavanaugh, Thomas, as especially Gorsuch have created a framework to justify this new Slavery 2.0. There are no physical shackles or whips, but it's slavery.

This is the slavery of sweatshop labor, which demands workers risk their lives for starvation wages. This is the slavery which grants billionaire employers like Jeff Bezos the unearned privilege to abuse employees and face no legal consequences for that abuse. This is the slavery that cynically strips workers of any rightsother than the 'right' to work until they drop dead.

Political scientists may term this legal structure 'oligarchy' or even 'predatory capitalism,' but such jargon merely disguises the true nature of this judicial conspiracy, which is quite obviously slavery. A former Supreme Court used similar rhetorical deceit to justify slavery--in the Dred Scott case. Today's SCOTUS conservatives use equivalent rhetorical deceit to justify a new slavery based not on race, but on employment servitude.

What the nation witnessed on December 10, 2021, was a mere prelude to the corporate abuse SCOTUS conservatives would unleash on the average American daring to demand something we have never had an actual democracy.

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https://www.vox.com/22276279/supreme-court-war-joe-biden-agency-regulation-administrative-neil-gorsuch-epa-nondelegation

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no lnx many

The Supreme Court’s coming war with Joe Biden, explained

The Supreme Court is poised to give itself a veto power over much of the Biden administration’s authority.

By Ian Millhiser Mar 27, 2021,

One of Justice Antonin Scalia’s final acts was to strike down President Obama’s plan to stave off the climate crisis.

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On February 9, 2016 — the last Tuesday of Scalia’s life — the Supreme Court handed down an unexpected order announcing a stay of the Environmental Protection Agency’s carbon emissions rules for many power plants. The vote was 5-4, along party lines, with Scalia joining his fellow conservatives in the majority.

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The environmental regulations blocked by this order were commonly known as the Clean Power Plan, and they were the Obama administration’s most ambitious effort to fight climate change. Had the Clean Power Plan taken effect, the EPA predicted that by 2030 it would have reduced overall carbon dioxide emissions from utility power plants 32 percent from where they were in 2005.

But the Clean Power Plan never took effect. Though the Supreme Court’s order halting the plan was temporary, Donald Trump’s 2016 victory all but ensured that it would not be revived. Even if the Trump administration hadn’t replaced this Obama-era policy with a significantly weaker rule, the appointment of Neil Gorsuch to fill Scalia’s vacant seat signaled the Supreme Court would be highly likely to strike down the Clean Power Plan permanently if given the chance.

The problem for Democrats is that the legal defeat of the Clean Power Plan is likely not a one-off.This fight over the federal government’s power to address a slow-moving catastrophe is just one battle in a multi-front war over federal agencies’ power to regulate. As Stephen Bannon, then the White House’s chief strategist, told the Conservative Political Action Conference a month after Trump took office, one of the Trump administration’s primary goals would be “deconstruction of the administrative state.”

Enter the Roberts Court, fortified by Trump’s appointees. With six conservative justices, the Court has the votes it needs to make Bannon’s goal a reality — and at least five members of the Supreme Court have already endorsed a plan to erase much of the executive branch’s authority.

It wasn’t always this way. In the late 1980s, Justice Scalia was one of the Court’s staunchest defenders of a strong administrative state. Presidents Ronald Reagan and George H.W. Bush delivered three landslide victories in a row to Republicans, and the GOP was at the apex of its ability to gain power the old-fashioned way — by winning elections.

So conservatives benefited from court decisions that gave the Reagan and Bush administrations broad leeway to set federal policy. Both administrations could use this leeway to deregulate.

[President Ronald Reagan talking to then-Supreme Court Justice nominee Antonin Scalia in the Oval Office, circa 1986. ]

But the right’s approach to federal agencies shifted drastically during the Obama administration. With the GOP’s grip on the presidency waning at the very same time that they had a firm hold on the judiciary, conservatives had an obvious interest in increasing the judiciary’s power to strike down new rules pushed by federal agencies. By Obama’s second term, the conservative Federalist Society’s national lawyers convention became a showcase of proposals to deconstruct the administrative state.

All of this culminated in Justice Neil Gorsuch’s opinion in Gundy v. United States (2019), which called for strict new limits on federal agencies — and for the judiciary to even strike down many federal regulations as unconstitutional. Though Gorsuch’s opinion was a dissent — that is, he didn’t yet have a majority for it — five justices now on the Court have largely endorsed his framework, which relies on a conservative legal principle known as “nondelegation.”

In other words, it may be only a matter of time before the Court starts striking down Biden administration regulations that rely on legal arguments that would have been treated as nonsense just a decade ago.

At least since the Franklin Roosevelt administration, federal agencies have had wide latitude to implement the policies the president campaigned on. And agency-initiated regulations answer such important questions as who has access to health care, how much workers are paid for their labor, and a wide range of environmental questions that go well beyond the Clean Power Plan.

So, no matter what issue you care about, there is likely a federal regulation that shapes the nation’s approach to that issue. If the Supreme Court strips the government of much of its power to promulgate these regulations, it could effectively grind down the Biden presidency — not to mention dismantle much of American law.

Federal regulation, explained

Before we can understand how the Supreme Court might remake the balance of power between the executive and the judiciary, it’s important to understand what it means for a federal agency to regulate.

As a general rule, Congress can regulate businesses in two ways.

The most straightforward approach is simply to command industries to conduct their business in a certain manner. Thus, if Congress wants to reduce certain polluting emissions, it could enact a law that orders power plants to use a particular technology that reduces emissions.

But Congress is a slow-moving body, and federal laws are difficult to amend. If, in the 1970s, Congress had commanded power plants to use the best emissions reduction technology that existed at the time, it could have potentially locked these plants into using obsolete tech that is vastly inferior to the technology available now. At a minimum, Congress would have struggled to stay on top of new developments and to update this law as new methods of reducing emissions were invented.

For this reason, Congress may also regulate businesses in a second way. It can pass a law that lays out a broad federal policy but leave the details of how to implement that policy up to a federal agency. Often, such delegation means giving that agency a fair amount of authority to determine how businesses operate, so long as the agency uses this authority to advance the policy goal enacted by Congress.

When Congress wrote the Clean Air Act, for example, it made sure that the rules governing power plants could evolve as technology improves. Under this law, power plants must update their systems for reducing emissions to ensure that they achieve the same “degree of emission limitation achievable through the application of the best system of emission reduction” that currently exists, while also accounting for factors such as cost.

Congress also gave the job of figuring out what the “best system of emission reduction” is at any particular moment to the EPA administrator. As a practical matter, that means that EPA employees who are experts on environmental regulation and the energy industry will study which new technology is available and will update the rules governing power plants as that technology evolves.

And that’s exactly what EPA did when it created the Clean Power Plan. EPA determined that, to achieve the “best system of emission reduction,” at least some energy companies would need to shift from fairly dirty coal-fired electricity production to cleaner methods such as natural gas, or to renewable methods that result in no emissions at all.

Rules such as this one, which are promulgated by a federal agency pursuant to a federal law permitting them to do so, are known as “regulations.” When Bannon spoke of deconstructing the administrative state, or when the Federalist Society showcased proposals to diminish the executive branch’s authority, a major thrust of that project involved stripping agencies of much of their ability to regulate.

Ideally, laws like the Clean Air Act make complex lawmaking possible without having to sacrifice democratic accountability. Regulation allows our laws to be both democratic and dynamic. Such laws are democratic because the goals of federal policy — goals such as ensuring that power plants use the best emission reduction technology available — are still set by the people’s elected representatives in Congress. But they are dynamic because it allows federal rules to be updated without requiring Congress to enact a new law every time a new innovation is developed.

Yet, despite these advantages, the very idea that Congress should be free to delegate power in this way has many enemies within the conservative legal movement. In a 2016 opinion, for example, then-Judge Gorsuch wrote that two foundational Supreme Court decisions preserving agencies’ ability to regulate “permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”

After his elevation to the Supreme Court, Gorsuch called for strict new limits on the federal government’s power to regulate in his Gundy opinion. And since then, five members of the Court’s Republican-appointed majority have signaled, albeit in two different cases, that they agree with Gorsuch’s plans to restrict agency power.

Gorsuch and his allies do not simply view Congress’s power to delegate rulemaking authority to agencies as undesirable. They view broad delegations of power as inconsistent with the Constitution itself. And their narrow vision of federal power has profound implications for workers, consumers, patients, and the environment.

The future of federal regulation

There’s a name for this vision that Gorsuch and the Court’s conservatives are invoking: “nondelegation.”

Nondelegation is the largely defunct idea that the Constitution places strict limits on Congress’s ability to delegate power to federal agencies. Although the Supreme Court briefly wielded the nondelegation doctrine to strike down New Deal policies that gave a simply extraordinary amount of regulatory power to President Roosevelt, this doctrine largely lay dormant for generations. And the Court’s decisions prior to Gundy emphasized just how reluctant courts should be to strike down laws permitting agencies to regulate.

Longstanding Supreme Court precedents hold that Congress has a broad authority to delegate power. As the Court explained in Mistretta v. United States (1989), “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.”

Thus, the Court has explained, Congress may delegate regulatory power to agencies so long as it “shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform.”

While Reaganism was ascendant, conservative judges were often the biggest cheerleaders for broad judicial deference to federal agencies, frequently justifying such deference as a way to keep an unelected judiciary from undercutting democracy. As then-Judge Kenneth Starr wrote in a 1986 article on administrative law, “in part because federal judges are not directly accountable to any electorate, I believe they have a duty voluntarily to exercise ‘judicial restraint.’”

But these conservative calls for judicial restraint have since been replaced with bold demands for judicial intervention against federal agencies once Reaganism faded and Obama’s liberalism gained steam. A new conservative approach to administrative law, which seeks to concentrate power within a judiciary dominated by Republican appointees, is now ascendant.

In early October 2019, just a few days before Justice Brett Kavanaugh was confirmed to the Supreme Court, the eight remaining justices heard Gundy v. United States (2019), a case brought by a convicted sex offender who challenged his conviction for failing to register as a sex offender when he moved to New York. Herman Gundy’s case went after a federal statute that allowed the Justice Department to determine which sex offenders, who were convicted before a certain date, had to register with their state governments (the Justice Department determined that all eligible offenders must register).

Gorsuch used his opinion in Gundy to criticize the longstanding rule laid out in cases like Mistretta. Warning that permitting Congress to delegate power to agencies risks giving those agencies “unbounded policy choices,” Gorsuch proposed a vague new limit on Congress’s power to delegate.

According to Gorsuch, delegations of power to agencies must be struck down unless Congress put “forth standards ‘sufficiently definite and precise to enable Congress, the courts, and the public to ascertain’ whether Congress’s guidance has been followed.”

This vague new standard is inconsistent with the framers’ understanding of the Constitution. As explained below, early American lawmakers — many of whom were the same people who drafted the Constitution — delegated tremendous power to executive branch officials.

And Gorsuch’s rule would effectively consolidate an enormous amount of power within the judiciary.

As a practical matter, when the Supreme Court hands down a vague and open-ended legal standard like the one Gorsuch articulated in his Gundy opinion, the Court is shifting power to itself. What does it mean for a statute to be “sufficiently definite and precise” that the public can “ascertain whether Congress’s guidance has been followed”?

The answer is that the courts — and, ultimately, the Supreme Court — will decide for themselves what this vague language means. The courts will gain a broad new power to strike down federal regulations, on the grounds that they exceed Congress’s power to delegate authority.

In theory, that could mean that federal regulations will simply receive more scrutiny from an impartial judiciary. But, in practice, the judiciary is only as good as the judges who staff it. If five justices get behind it, the nondelegation doctrine would give a Republican supermajority on the Supreme Court the ability to veto nearly any regulation handed down by a Democratic administration.

It should be noted that Gorsuch’s opinion in Gundy was a dissent — the opinion was joined only by Chief Justice John Roberts and Justice Clarence Thomas. But Justices Samuel Alito and Kavanaugh have both signaled in other opinions that they share Gorsuch’s desire to revive the nondelegation doctrine.

And in Little Sisters v. Pennsylvania (2020), five justices signed on to an opinion by Justice Thomas, which strongly suggests that many of the Affordable Care Act’s (ACA) provisions requiring health insurers to provide a minimum level of coverage to their customers are unconstitutional under the nondelegation doctrine.

Little Sisters considered a provision of the ACA allowing a federal agency to determine which forms of “preventive care and screenings” for women must be covered without copays or other out-of-pocket costs by health insurers. Among other things, the agency determined that contraceptive care must be covered.

Yet Thomas’s majority opinion strongly suggests that this provision of the Affordable Care Act violates the nondelegation doctrine. He accuses Congress of giving “virtually unbridled discretion to decide what counts as preventive care and screenings” to a federal agency. Thomas’s decision lays the groundwork for the Supreme Court to eventually strike down the requirement that health insurers cover birth control (and possibly other, similarly worded provisions of Obamacare requiring coverage of immunizations and pediatric care).

Indeed, in late February, a conservative federal judge in Texas cited Little Sisters to suggest that multiple provisions of the ACA may be unconstitutional under the nondelegation doctrine.

And it won’t be just the ACA. Literally any regulation pushed during the Biden presidency, dealing with a wide range of matters from the fight against climate change to the protection of workers, could be vetoed by a Republican Supreme Court under this doctrine.

The constitutional arguments for the nondelegation doctrine are quite weak

This consolidation of power within a conservative judiciary could happen despite the fact that the nondelegation doctrine rests on the thinnest of constitutional reeds.

The Constitution gives Congress the “legislative” power, and the president and the various federal agencies that answer to the president the “executive” power.

The legislative power, according to Gorsuch, is the power to “adopt generally applicable rules of conduct governing future actions by private persons.” And proponents of nondelegation claim that the Constitution places strict limits on Congress’s ability to delegate this power to agencies merely tasked with executing existing laws.

Often, proponents of the nondelegation doctrine quote a passage from the political philosopher John Locke, who claimed that “the legislative cannot transfer the power of making laws to any other hands; for it being but a delegated power from the people, they who have it cannot pass it over to others.”

But there are many problems with this account of Congress’s ability to delegate power. For one thing, it misunderstands Locke. As law professors Julian Davis Mortenson and Nicholas Bagley note in an important paper, Locke draws a distinction between the legislature’s ability to “transfer” power and a “delegated” power.

Transferring a power requires a “permanent alienation” — that is, for Congress to “transfer” legislative power, it would have to give up that power forever to some other person or body. But Locke raised no objection to a legislature delegating a power, meaning that lawmakers may assign the ability to make certain binding rules to an agency, so long as the legislature retains the ability to take that power back.

Indeed, if anything, Locke’s quote undercuts the argument for the nondelegation doctrine because it recognizes that the legislative power has already been delegated once — to the legislature itself. Locke describes the power to make laws as “a delegated power from the people.” That is, it is the people, not the Congress or some other representative body, that has the inherent power to make rules that bind the whole of society. When the Constitution created Congress, it delegated the people’s power to make laws to that Congress. And Congress may, in turn, delegate a portion of that power to federal agencies.

Congress’s early history supports this reading of the Constitution, as the very first Congress enacted numerous laws giving vast discretion to other government officials. It allowed officials overseeing the Northwest Territory to “adopt and publish in the district, such laws of the original States, criminal and civil, as may be necessary, and best suited to the circumstances of the district.”

And it delegated Congress’s entire power to provide patents to inventors to executive branch officials, allowing the secretary of state, the secretary of war, or the attorney general to grant patents so long as they “deem the invention or discovery sufficiently useful or important.”

The First Congress didn’t simply give executive branch officials the power to issue licenses that would allow merchants to trade with Native American tribes, it also allowed the executive to promulgate regulations that would govern license holders “in all things touching the said trade and intercourse.”

The First Congress allowed the president to identify wounded or disabled soldiers, and to place them on “the list of the invalids of the United States, at such rate of pay, and under such regulations, as shall be directed by the President of the United States, for the time being.”

And it delegated to “any common law court of record” the power to grant citizenship to any free white person who resided in the country for two years, provided that the court was satisfied that the new citizen is a “person of good character.”

So the framers understood the Constitution to allow Congress to grant broad authority to federal agencies, and the position outlined by Gorsuch’s opinion in Gundy and Thomas’s opinion in Little Sisters is tough to square with this history.

But in the Supreme Court of the United States, history and constitutional text matter little if a party has five votes. And the nondelegation doctrine almost certainly has five votes.

President Biden will hardly be the first president to face lawsuits challenging his administration’s regulations. But he is likely to be the first president since Roosevelt to face a judiciary that’s so eager to rein in agency power.

This essay is adapted from the author’s book, The Agenda: How a Republican Supreme Court Is Reshaping America.

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ref 2

https://newrepublic.com/article/165098/gorsuch-law-major-questions-doctrine

no lnx

Matt Ford/January 24, 2022

The Supreme Court’s Conservatives Found a New Way to Wreck the Government

Neil Gorsuch’s recent invocation of the “major questions doctrine” has ominous implications for anyone not keen on watching the government drown in dysfunction.

Justice Neil Gorsuch recently invoked the major questions doctrine during the Supreme Court’s OSHA testing-mandate decision.

The Supreme Court’s decision to block the Occupational Safety and Health Administration from issuing a Covid testing mandate for many U.S. businesses continues to offer a lot to ponder. Even looking beyond the merits of the ruling, it is not as strong an opinion as one might expect for the highest court in the land—perhaps this is to be expected, given that the case was argued, and the opinions drafted, with more haste than usual. Multiple legal scholars have noted, for example, that it spends virtually no time balancing who would be harmed if the court granted the motion to stay the mandate, which is sort of the entire crux of the dispute.

Anita Krishnakumar, a Georgetown University law professor, also noted on a legal blog that both the majority opinion and Justice Neil Gorsuch’s concurring opinion run counter to many of the principles of textualism, the method of reading federal laws that conservatives have championed. In a nutshell, textualism generally means reading the statute as it is written. Among the breaches that Krishnakumar noted: Gorsuch cited congressional inaction over the last two years as evidence of congressional intent when passing the OSHA statute many decades ago; he favorably noted that one chamber of Congress voted on a resolution of disapproval of the mandate, even though it carried no legal weight, and both opinions made no real attempt at a close textual analysis of what the words in the statute actually mean.

“I am not cynical by nature and typically resist partisan, cynical readings of the Court’s statutory cases,” Krishakumar concluded, “but it is hard to view this case as anything other than a sign that at least in high-stakes political cases, the conservative Justices on the modern Roberts Court no longer feel the need to follow a textualist or formalist approach to statutory interpretation even as a pretext to justify reaching their preferred interpretive outcomes.”

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To that end, one of the most troubling aspects of the case was the conservative majority’s reliance on what’s known as the “major questions doctrine.” This obscure judicial precept, which has mostly developed over the past two decades, first arose in a series of cases where the court was asked to decide whether federal agencies had exceeded the power given to them by Congress when interpreting federal law. The thrust of the doctrine is relatively simple: If a federal agency wants to do something big, it must have a clear mandate from Congress to do so.

The majority opinion in the OSHA testing-mandate case does not explicitly name the doctrine, though it cites precedents where it came up. It fell to Gorsuch to explain it more outwardly. “Why does the major questions doctrine matter?” he asked. “It ensures that the national government’s power to make the laws that govern us remains where Article I of the Constitution says it belongs—with the people’s elected representatives. If administrative agencies seek to regulate the daily lives and liberties of millions of Americans, the doctrine says, they must at least be able to trace that power to a clear grant of authority from Congress.”

But Gorsuch’s own opinion—and the majority’s, for that matter—suggests that the major questions doctrine is less about Congress’s authority and the virtues of democratic self-government and more about the Supreme Court’s power and the ideological dispositions of some of its members. The court’s conservatives have shown a strong interest in curbing what they call the “administrative state,” a catch-all term they use to describe federal regulatory agencies. And with the doctrine, they appear to have found a tool to diminish the federal government’s power to, well, govern.

The doctrine’s first few appearances at the Supreme Court were more modest than the OSHA decision last week. In a 1994 case, the court ruled that the Federal Communications Commission couldn’t use its power to “modify” tariffs for telecommunications companies to essentially abolish most of the tariffs, concluding that the move would essentially rewrite the Communications Act of 1934, which laid out the tariffs in the first place. And in 2000, the justices concluded that the Food and Drug Administration couldn’t decide to regulate tobacco products for the first time in its history because Congress had implicitly denied it that jurisdiction through other anti-smoking laws.

Another judicial doctrine known as Chevron deference generally requires courts to defer to federal agencies on whether a rule that they draft falls within the scope of what Congress has established in federal law, so long as it is a reasonable interpretation of that law. When the Supreme Court formally established that doctrine in the 1980s, it explained that federal agencies have more policy expertise and are more responsive to democratic forces than the courts. Chevron deference is unpopular with conservative legal scholars, however, for tipping the balance in favor of the agencies when interpreting the scope of their powers.

The major questions doctrine allows the justices to sidestep Chevron deference entirely. Over the past two decades, the court has concluded that it can weigh in on the statute’s meaning if the policy in question is one of “vast” or “deep … economic or political significance.” It’s not exactly clear what falls under that label. Indeed, depending on one’s perspective, it’s unclear what wouldn’t count. Any high-profile or high-stakes rule laid out by a federal agency could conceivably be described as such, especially by those with a stake in the outcome.

Some rules are more obviously significant than others. In 2020, Congress imposed a temporary national moratorium on evictions as part of its efforts to combat the Covid-19 pandemic. After it expired, the Centers for Disease Control and Prevention issued an eviction moratorium of its own under a provision in the Public Health Service Act of 1944, which allows the agency to “provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in [its] judgment may be necessary.” A group of Alabama landlords challenged the order’s constitutionality in federal court.

When they asked the Supreme Court to block the moratorium last summer, the justices declined to do so in a 5–4 vote. Justice Brett Kavanaugh wrote a concurring opinion that explained he had voted to keep the order intact through its expiration date roughly one month later and would vote to block it next time unless Congress had reauthorized the moratorium itself. The Biden administration, facing pressure from Democratic lawmakers and activists, issued a slightly more limited version of moratorium after the previous one lapsed. As expected and as forewarned, the Supreme Court soon struck down the mandate for exceeding the CDC’s statutory powers.

The court grounded its decision in a fairly straightforward textualist reading of the statute in question, which did not mention evictions or housing and instead focused on goods and livestock traveling across state borders. “This downstream connection between eviction and the interstate spread of disease is markedly different from the direct targeting of disease that characterizes the measures identified in the statute,” the court argued. “Reading both sentences together, rather than the first in isolation, it is a stretch to maintain that §361(a) gives the CDC the authority to impose this eviction moratorium.”

It did not stop there, however, fleshing out a more expansive reason for blocking the moratorium. “Even if the text were ambiguous, the sheer scope of the CDC’s claimed authority under §361(a) would counsel against the Government’s interpretation,” it added, quoting from a line of cases on the major questions doctrine. “We expect Congress to speak clearly when authorizing an agency to exercise powers of ‘vast economic and political significance.’ That is exactly the kind of power that the CDC claims here.”

The second-to-last sentence there—the “we expect Congress to speak clearly” part—was cited verbatim to strike down the OSHA testing mandate, and will probably be seen in countless challenges to federal rules and regulations in the years ahead. What does it mean when Congress speaks clearly? Many federal statutes are written in broad strokes precisely so federal agencies can fill in the gaps. When does an agency rule’s scope amount to “vast economic and political significance?” Given the size of the American economy and the breadth of some agencies’ jurisdiction, that opening for judicial intervention might be boundless.

For the court’s conservatives, the major questions doctrine will be a valuable tool to prevent federal agencies from carrying out their policymaking mandates. It may allow the justices to achieve what they were unable to do in Gundy v. United States in 2018. That case revolved around yet another judicial doctrine, this one largely moribund: the nondelegation doctrine. It is premised on the idea that one branch of government cannot “delegate” its core powers to another branch. Congress, for example, probably couldn’t give blanket approval to all of a president’s judicial or executive branch nominees, and the president probably can’t pass off the pardon power to a subordinate.

But things get murky past there, and courts have generally refused to apply the nondelegation doctrine to modern federal agencies. The alternative could be that Congress would have to scrutinize and approve new drugs instead of the FDA, or that Congress would have to research and restrict various pollutants instead of the Environmental Protection Agency. Pharmaceutical companies and coal-burning power plants might appreciate the change, but the American people probably wouldn’t. That might be why the court declined, in Gundy, to dust off the nondelegation doctrine, by a slim 5–3 margin. Justice Elena Kagan, writing for the plurality, noted that if the delegation in Gundy was unconstitutional, “then most of government is unconstitutional.”

In his dissent, Gorsuch suggested that other tools could work. “Under our precedents, an agency can fill in statutory gaps where ‘statutory circumstances’ indicate that Congress meant to grant it such powers,” he explained. “But we don’t follow that rule when the ‘statutory gap’ concerns ‘a question of deep economic and political significance that is central to the statutory scheme.’” Gorsuch also hinted at a much more expansive approach to it in the future. “Although it is nominally a canon of statutory construction, we apply the major questions doctrine in service of the constitutional rule that Congress may not divest itself of its legislative power by transferring that power to an executive agency,” he wrote.

What makes all of this so troubling is the degree to which the court’s conservative majority will bend facts to fit the major questions doctrine and then use it to block novel policymaking decisions with which they disagree. In the OSHA testing-mandate case, the six justices blithely claimed that OSHA couldn’t issue the mandate because the law it cited was designed to address a public health matter, not a workplace-safety matter—a distinction that, in this context, quite literally makes no sense. The Supreme Court may claim it is using this doctrine to defend Congress’s powers. But it looks more and more as if it is bent on simply increasing its own.

Matt Ford @fordm

Matt Ford is a staff writer at The New Republic.

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