The Volokh Conspiracy

Last term, I thought the most fascinating constitutional law decision was PennEast Pipeline v. New Jersey. The case held that New Jersey waived its sovereign immunity with respect to the federal eminent domain power. Here, FERC delegated to PennEast the power to condemn land for a pipeline. Chief Justice Roberts wrote the majority opinion, which was joined by Justices Breyer, Alito, Sotomayor, and Kavanaugh. Justice Gorsuch wrote one dissent, which was joined by Justice Thomas. Justice Barrett wrote a second dissent, which was joined by Justices Thomas, Kagan, and Gorsuch.

This case did not neatly break down along usual ideological divide. And, more importantly, Chief Justice Roberts, as well as Justices Alito and Kavanaugh, ruled against state sovereign immunity. During the 1990s and early 2000s, the Rehnquist Court focused on bolstering state sovereign immunity. Here, we got an early sign that the Court's conservatives may not be united on this topic. On balance, I found Justice Barrett's dissent to be far more persuasive than the majority opinion. In my view, Barrett's PennEast dissent is the most thoughtful opinion she has written on the Court.

Still, PennEast was not directly in tension with Alden v. Maine, because the federal eminent domain power does not appear in Article I. But PennEast did propose a new test: a state will be found to have waived sovereign immunity pursuant if that waiver is consistent with the "plan of the Convention."

Last week, the Court decided Torres v. Texas Department of Public Safety, which I think is the most fascinating opinion of the OT 2021 term. Here, Torres argued that Texas waived sovereign immunity with regard to Congress's Article I powers over military affairs. By a 5-4 vote, the Court agreed. Justice Breyer wrote the majority opinion which was joined by Chief Justice Roberts and Justices Sotomayor, Kagan, and Kavanaugh. Justices Thomas, Alito, Gorsuch, Gorsuch, and Barrett were in dissent.

Torres conflicts with Alden v. Maine, and potentially Seminole Tribe v. Florida. Those cases held that Congress could not abrogate sovereign immunity pursuant to its Article I powers in state court.

Justice Thomas makes this point in his dissent:

More than two decades ago, this Court found it "difficult to conceive that the Constitution would have been adopted if it had been understood to strip the States of immunity from suit in their own courts and cede to the Federal Government a power to subject nonconsenting States to private suits in these fora." Alden v. Maine (1999). Accordingly, we held—without qualification—that "the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts."

No longer. Today, by adopting contrived interpretations of Alden and the recent decision in PennEast Pipeline Co. v. New Jersey (2021), the Court holds that at least two (and perhaps more) Article I "war powers" do, in fact, include "the power to subject nonconsenting States to private suits for damages in state courts," Alden, and that Congress has exercised that power by enacting the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). Alden should have squarely foreclosed that holding.

Justice Breyer insists that the dissent read Alden out of context:

The dissent makes two further points. First, it quotes Alden v. Maine for the proposition that "'the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts.'" But the dissent would give this sentence more weight than it can bear. The quoted passage appears in the introduction to the Court's opinion, and it refers summarily to Article I's general delegations (i.e., Congress' broad authority under the Supremacy Clause and the Necessary and Proper Clause). Alden did not, in this sentence or elsewhere, suggest that there were no exceptions under which Congress could authorize private suits against States. In fact, Alden said the opposite. The Court expressly embraced "'the postulate that States … shall be immune from suits, without their consent, save where there has been "a surrender of this immunity in the plan of the convention."'" So, Alden made clear: "In exercising its Article I powers Congress may subject the States to private suits in their own courts … if there is 'compelling evidence' that the States were required to surrender this power to Congress pursuant to the Constitutional design." As we have discussed, PennEast and Katz recognize such exceptions as to the federal eminent domain power and the Bankruptcy Clause. And they establish the test for what constitutes "compelling evidence" of structural waiver.

Justice Thomas responds to this claim in a footnote:

The Court ignores all of this and instead invokes inapposite language elsewhere in Alden. For instance, the Court emphasizes that Alden expressly recognized "'the postulate that States … shall be immune from suits, without their consent, save where there has been "a surrender of this immunity in the plan of the convention."'" That is true enough, but beside the point. After stating this "postulate," Alden exhaustively evaluated constitutional history, precedent, and structure and expressly held that the States, "under the plan of the Convention, … have [not] consented to suits" filed by private individuals in state court.

I think PennEast changed the standard for sovereign immunity pursuant to Article I powers. Justice Thomas explains further:

By saddling "completeness" with more analytical weight than it can bear, the Court has devised a method that has the certainty and objectivity of a Rorschach test. Beyond its inconsistency with PennEast, this contrivance also threatens to rework or erase the Court's prevailing sovereign immunity jurisprudence.

In PennEast Chief Justice Roberts did what he does best--quietly undermine precedents. And in later cases, that abrogation becomes clear. Goodbye Rehnquist-bright-line-rule. Hello Roberts-Breyer-Rorschach-test.  I did not expect that Red Flag June would come for Alden v. Maine. No one is safe from the red flags.

Like in PennEast, Roberts and Kavanaugh voted to weaken state sovereign immunity. Kavanaugh, in particular, may have been moved by his broad deference for military affairs. There is a valid pragmatic concern about states hobbling the federal war-making power. Though, I am persuaded by Justice Thomas that the states do retain some authority in this area, so there is not a "complete" surrender of sovereignty--assuming that "less than complete" is even the right standard.

Following the Court's logic, one could just as easily say that Congress' power under the Army and Navy Clauses is "less than complete" because "federal regulation of soldiers involves men and women who, before they join the military, are subject to regulation by a sovereign other than the Federal Government." Despite the Court's efforts, its "completeness" analysis simply fails to distinguish the Army and Navy Clauses from other Article I powers delegated to Congress in the plan of the Convention.

In any event, Roberts and (possibly) Kavanaugh are not on the same page as Rehnquist, et al. From PennEast to Torres Justice Alito switched sides. He may have thought that the federal eminent domain power was distinct, while the Article I military powers were governed by Alden v. Maine and Seminole Tribe.

Justice Thomas is already counting the votes to "jettison" and "purge" this precedent, which is quite limited:

Until the Court jettisons this erroneous decision from its doctrine, plan-of-the-Convention waiver would appear to exist only under those circumstances.

…

Most troubling, however, is the clear parallel between the Court's analysis today and the discredited approach to sovereign immunity that we rejected in Seminole Tribe. . . . Therefore, if Seminole Tribe was right, then the Court's decision today is wrong. Hopefully, the Court will someday purge the newly fashioned "completeness" standard from our jurisprudence.

The lower courts now have a roadmap to erode sovereign immunity. Stay tuned for new cases coming up in the PennEast pipeline.

Over the past year, the Supreme Court decided three important cases concerning the major questions doctrine. The third decision, West Virginia v. EPA, was decided on the regular docket. But the first two cases, like most COVID cases, were rendered on the shadow docket.

First, Alabama Association of Realtors v. HHS declared unlawful the eviction moratorium. Second, NFIB v. OSHA declared unlawful the vaccine/testing mandate. Both unsigned opinions relied on the major questions doctrine. At the time, I wrote that the Court has treated these shadow docket cases as precedential.

Now, we have West Virginia v. EPA. And the Court cites the Alabama case as part of the major questions canon. Here, the Court invokes Alabama and Brown & Williamson in the same breath:

Such cases have arisen from all corners of the administrative state. In Brown & Williamson, for instance, the Food and Drug Administration claimed that its authority over "drugs" and "devices" included the power to regulate, and even ban, tobacco products. Id., at 126–127. We rejected that "expansive construction of the statute," concluding that "Congress could not have intended to delegate"such a sweeping and consequential authority "in so cryptic a fashion." Id., at 160. In Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 3), we concluded that the Centers for Disease Control and Prevention could not, under its authority to adopt measures "necessary to prevent the . . . spread of " disease, institute a nationwide eviction moratorium in response to the COVID–19 pandemic. We found the statute's language a "wafer-thin reed" on which to rest such a measure, given "the sheer scope of the CDC's claimed authority," its "unprecedented" nature, and the fact that Congress had failed to extend the moratorium after previously having done so. Id., at ___–___ (slip op., at 6–8).

And here, the Court lists Alabama in a string cite with Brown & Williamson and Gonzales v. Oregon:

And the Agency's discovery allowed it to adopt a regulatory program that Congress had conspicuously and repeatedly declined to enact itself. Brown & Williamson, 529 U. S., at 159–160; Gonzales, 546 U. S., at 267–268; Alabama Assn., 594 U. S., at ___, ___ (slip op., at 2, 8). 

The Court also cites NFIB v. OSHA in the same passage as Gonzales v. Oregon:

Similar considerations informed our recent decision invalidating the Occupational Safety and Health Administration's mandate that "84 million Americans . . . either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense." National Federation of Independent Business v. Occupational Safety and Health Administration, 595 U. S. ___, ___ (2022) (per curiam) (slip op., at 5). We found it "telling that OSHA, in its half century of existence," had never relied on its authority to regulate occupational hazards to impose such are markable measure. Id., at ___ (slip op., at 8). 

By contrast, Fulton quite deliberately did not cite Tandom v. Newsom or Roman Catholic Diocese.

I think the Court is signaling that a published decision with some analysis should be treated as precedential, even if rendered in the absence of full briefing and oral argument. Relatedly, Judge Trevor McFadden and Vetan Kapoor wrote a helpful article summarizing whether an emergency stay order is precedential.

Last month, DACA turned ten years. Despite its vintage, the Supreme Court has never passed on the legality of the policy. Indeed, DHS v. Regents ducked the issue altogether, finding that the Trump Administration failed to justify the DACA rescission. (That precedent seemed to have expired with Biden v. Texas.) In Regents, I filed an amicus brief on behalf of the Cato Institute. We argued that DACA would trigger the major question doctrine.

As I read through West Virginia v. EPA, my mind kept wandering to DACA. Much of the Chief's analysis concerning the Clean Air Act would apply to federal immigration law.

DACA involves what I called "presidential discovery" of a transformative power in general provisions of the INA--a transformation that Congress repeatedly declined to enact by statute. The Chief Justice laid out some guardrails in West Virginia:

Under our precedents, this is a major questions case. In arguing that Section 111(d) empowers it to substantially restructure the American energy market, EPA "claim[ed] to discover in a long-extant statute an unheralded power" representing a "transformative expansion in [its] regulatory authority." Utility Air. It located that newfound power in the vague language of an "ancillary provision[]" of the Act, Whitman, one that was designed to function as a gap filler and had rarely been used in the preceding decades. And the Agency's discovery allowed it to adopt a regulatory program that Congress had conspicuously and repeatedly declined to enact itself. Brown & Williamson; Gonzales; Alabama Assn. Given these circumstances, there is every reason to "hesitate before concluding that Congress" meant to confer on EPA the authority it claims under Section 111(d). Brown & Williamson.

…

Finally, we cannot ignore that the regulatory writ EPA newly uncovered conveniently enabled it to enact a program that, long after the dangers posed by greenhouse gas emissions "had become well known, Congress considered and rejected" multiple times. Brown & Williamson; see also Alabama Assn.; Bunte Brothers (lack of authority not previously exercised "reinforced by [agency's] unsuccessful attempt … to secure from Congress an express grant of [the challenged] authority"). At bottom, the Clean Power Plan essentially adopted a cap-and-trade scheme, or set of state cap-and-trade schemes, for carbon. Congress, however, has consistently rejected proposals to amend the Clean Air Act to create such a program. It has also declined to enact similar measures, such as a carbon tax. "The importance of the issue," along with the fact that the same basic scheme EPA adopted "has been the subject of an earnest and profound debate across the country, … makes the oblique form of the claimed delegation all the more suspect." Gonzales.

Virtually every clause in these paragraphs can be applied to DACA.

Admittedly, the "expertise" point cuts differently. The Court found that the EPA lacks expertise to create the generating shifting approach. By contrast, DHS would have the expertise with regard to DACA. Still, the Court does not require a lack of relevant expertise to trigger the major questions doctrine. Justice Gorsuch recognized this point in his concurrence:

The dissent not only agrees that a mismatch between an agency's expertise and its challenged action is relevant to the major questions doctrine analysis; the dissent suggests that such a mismatch is necessary to the doctrine's application. But this Court has never taken that view. See, e.g., Brown & Williamson, (drug agency regulating tobacco); King v. Burwell (2015) (tax agency administering tax credits).

Eventually, the DACA litigation will hit the Fifth Circuit. West Virginia v. EPA will play an important role in that case.