The Volokh Conspiracy

One of my least favorite words in legal discourse is "interesting." Sometimes it is a useful way to describe something of interest, but far too often it is a passive aggressive way of criticizing something. "Oh well that is very interesting." After reading West Virginia v. EPA, I will add another word to my list of disfavored list: "odd."

For example, Chief Justice Roberts included this line his majority opinion:

We find it odd that the dissent accuses us of champing at the bit to "constrain EPA's efforts to address climate change," yet also chides us for "mak[ing] no effort" to opine—in what would be plain dicta—on "how far [our] opinion constrain[s] EPA,"

The Chief does not explain why Justice Kagan's position is "odd." But the implication here is that the dissent is taking contradictory positions. Here, the word "odd" is a stand-in for "hypocritical."

If you ever find yourself using the word "interesting" or "odd" to describe someone who disagrees with you, immediately delete that word, and explain in a sentence why it is "interesting or "odd." If you find you cannot do so, without causing undue offense to the other side, delete the sentence altogether. Don't make a point through loose rhetoric that you are not willing to make directly.

Justice Kagan came out full-guns-blazing in West Virginia v. EPA. She snarked that the majority was motivated by a hatred of environmental laws. Here are some of her greatest hits:

Another of this Court's opinions, involving a matter other than the bogeyman of environmental regulation, might have stopped there.

It is EPA (that's the Environmental Protection Agency, in case the majority forgot) acting to address the greatest environmental challenge of our time.

But under normal principles of statutory construction, the majority should ignore that fact (just as I should ignore that Congress failed to enact bills barring EPA from implementing the Clean Power Plan).

Kagan criticized the young and restless Thomas Court.

That leaves the Court in much the same place it was when deciding Massachusetts v. EPA. Said the Court then: "That subsequent Congresses have eschewed enacting binding emissions limitations to combat global warming tells us nothing about what Congress meant" when it enacted the Clean Air Act. And so the Court recognized EPA's authority to regulate carbon dioxide. But that Court was not this Court; and this Court deprives EPA of the authority Congress gave it in Section 111(d) to respond to the same environmental danger.

Kagan also reached back to fault the Court for blocking President Obama's Clean Power Plan in 2015:

This Court has obstructed EPA's effort from the beginning. Right after the Obama administration issued the Clean Power Plan, the Court stayed its implementation. That action was unprecedented: Never before had the Court stayed a regulation then under review in the lower courts. The effect of the Court's order, followed by the Trump administration's repeal of the rule, was that the Clean Power Plan never went into effect. . . . . The Court today issues what is really an advisory opinion on the proper scope of the new rule EPA is considering. That new rule will be subject anyway to immediate, pre-enforcement judicial review. But this Court could not wait—even to see what the new rule says—to constrain EPA's efforts to address climate change.

Fun fact: the last action Justice Scalia took before his death was to stay the Clean Power Plan.

And Kagan felt compelled to defend her "We're all textualists" line.

Some years ago, I remarked that "[w]e're all textualists now." Harvard Law School, The Antonin Scalia Lecture Series: A Dialogue with Justice Elena Kagan on the Reading of Statutes (Nov. 25, 2015). It seems I was wrong. The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the "major questions doctrine" magically appear as get-out-of-text-free cards. Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed. That anti-administrative-state stance shows up in the majority opinion, and it suffuses the concurrence

A conveniently-textualist Supreme Court? Like Bostock. Speaking of Justice Gorsuch, Justice Kagan trains much of her fire on the Coloradan's concurrence:

The majority opinion at least addresses the statute's text, though overstating its ambiguity and approaching the action taken under it with unwarranted "skepticism." The concurrence, by contrast, concludes that the Clean Air Act does not clearly enough authorize EPA's Plan without ever citing the statutory text. Nowhere will you find the concurrence ask: What does the phrase "best system of emission reduction" mean? So much for "begin[ning], as we must, with a careful examination of the statutory text." Henson v. Santander Consumer USA Inc. (2017).

If Henson does not ring a bell, it was Justice Gorsuch's first opinion. Ouch. From one Denver to another Denver: Snark me home, country roads, to the place I belong, West Virginia v. EPA.

For decades, U.S. cyber exploits were notoriously lawyer-ridden, to the point where it became a key element in attributing US cybertools. But it looks like those days are gone. Today, Israel has matched and surpassed U.S. cyberwarriors on this essential measure. Nate Jones reports on an attack claimed by a vague "hacktivist" group but widely attributed to Israel. The hackers shut down several Iranian mills in a flood of sparks and molten steel. But the most interesting thing about the attack was the video pre-roll, which went out of its way to note that the mills were under international sanction and that the attackers had sent workers warnings to avoid casualties. Some of that was prudence; when you're escalating in cyberspace, it's a good idea to emphasize the limits you're observing. But a lot of it was lawyers advertising the attack's compliance with the law of armed conflict. Coming after an earlier campaign that cut off gasoline supplies but also warned emergency medical and fire services to gas up in advance, it sure looks as though some of the best cyber attacks now come with a phalanx of lawyers.

China, meanwhile, is putting resources into exporting its Fifty Cent Army to the United States. Sultan Meghji and Maury Shenk cover a Chinese social media campaign to turn American rare earths processing into an environmental controversy. In this case, I argue, China is taking a leaf from the Russian playbook; the Russians worked hard to make fracking controversial in the US because it was holding down the price of Russian oil. I urge someone to figure out just how many of those fake American accounts are also on TikTok, and how TikTok's algorithm is treating them.

Speaking of Chinese propaganda, Maury tells us that a well-known Chinese cybersecurity firm is accusing the U.S. of planting Trojans in hundreds of important Chinese information systems, a charge that might be interesting if the report actually provided some details.

Feeling the spur of competition from Israel's cyber lawyers, NSA's counsel has opened a new front. They've persuaded the US Justice Department to fight a merger on the grounds that it will reduce competition in bidding on a single NSA program. Nate and I get stuck on the market definition problems in the case, but Sultan thinks it's an investment opportunity.

This Week in Stupid Artificial Intelligence (AI) Research: We never lack for stories in this category, but this week the two contenders are well matched.  Sultan tells us about a story that proves you can always find sex and race discrimination in AI if your study is designed badly enough. And Maury finds a group of researchers who went one better, designing a moderately effective crime prediction algorithm and then arguing that the police were racist if they used it to put more police into high-crime neighborhoods and racist if they didn't send more police to neighborhoods with rising crime. Since the  point of most AI bias research is apparently to get your story into the press by finding that AI is racist, being able to find racism no matter how the study turns out is a winning strategy.

Speaking of unimpressive journalism, Sultan flags a Wall Street Journal story that lazily dumps on AI research for not doing everything we want, while pretty much ignoring things it has done well.

Sultan also leads us through the wreckage of one cryptocurrency domino after another, but he thinks the crash is likely to put a firmer, and more regulated, foundation under the businesses that survive. Nate reprises the EU contribution to the issue – more regulation, natch – but in a surprise twist for the Cyberlaw Podcast, the Brussels proposal gets pretty high marks.

Updating a few stories from past weeks,

• Google is really getting hurt by the study showing its default spam filter favored Democratic fundraising messages over Republican messages by about 7 to 1. The GOP has always believed (correctly) that its views are being handicapped by Silicon Valley, but this time the evidence is hard to refute. Indeed, Google isn't really refuting it, just promising to do better in future, while Republicans are claiming that Gmail's bias cost them $2 billion in donations and proposing tough new transparency laws.
• The Justice Department is upping the stakes for Uber's former chief information security officer (CISO), charging Joe Sullivan with wire fraud for treating what looks like a data breach ransom as a bug bounty. The Department of Justice says this defrauded Uber drivers and customers. Sullivan is the first, but probably not the last, CISO who'll face this charge, as government stops touting "public-private partnership" as the reason for companies to report breaches and instead embraces fear of prosecution.
• And the Transportation Security Administration (TSA), after taking criticism for the harshness of its secret cybersecurity standards for pipelines, has now offered secret amendments to the standards. Is that a good thing? Who knows?

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In 2016, I wrote an article about Zubik v. Burwell and United States v. Texas. In this piece, I discussed the "major question doctrine." Or was it the "major questions doctrine"? Really, I wasn't even sure what label to use. I remember searching decisions to find some clarity on what to call it, and failed. Hell, it wasn't even a real "doctrine" at the time. For reasons I cannot recall, I settled on "major question doctrine" (singular).

Here is how I described the doctrine in 2016--and it passed the eagle-eyes of the Harvard Law Review editors:

Under the familiar rule established in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., courts will defer to an agency's interpretation of an ambiguous statute, so long as the interpretation is reasonable. In a series of somewhat disjointed cases over the past two decades, the Supreme Court has carved out an important but under-theorized exception to Chevron. When a regulation implicates a "major question" the agency is owed no deference.

I then discussed the canonical cases: MCI v. AT&T, FDA v. Brown & Williamson, Whitman v. American Trucking, Gonzales v. Oregon, Utility Air Regulatory Group v. EPA, and King v. Burwell. I observed (how quaint!) that Justice Kennedy was in the majority of each major question case.

Then I identified nine (nine!) factors to determine when the major question doctrine ought to kick in.

The Supreme Court has never fully clarified when the major question doctrine applies. Or to be more precise, the Justices have never given guidance about how to administer the "line between rodent and pachyderm."The case law suggests at least nine factors, none dispositive, to determine if a decision is major: when an agency, lacking the requisite "expertise," (King) relies on an "unheralded power" (UARG) that was "cryptic[ally]" (FDA) delegated through "vague terms or ancillary provisions," (Whitman) to effect a "transformative expansion" (UARG) and "fundamental revision" (MCI) of a law with a "unique political history" (FDA) that is of "enormous importance" (MCI) and "deep 'economic and political significance.'" (King) Not exactly a model of clarity.

Fast-forward to West Virginia v. EPA. We now learn that the proper label is the "major questions doctrine" (plural) not "major question doctrine" (singular). And the Court whittles down the nine factors to a handful--how many exactly, I am not sure. And the MQD is still not a model of clarity.

There was a spirited debate between Chief Justice Roberts and Justice Kagan about whether the "major question doctrine" is even a thing.

Kagan writes that the Court "announced" this new thingamajig.

The majority today goes beyond those sensible principles. It announces the arrival of the "major questions doctrine," which replaces normal text-in-context statutory interpretation with some tougher-to-satisfy set of rules. Apparently, there is now a two-step inquiry. First, a court must decide, by looking at some panoply of factors, whether agency action presents an "extraordinary case[]."If it does, the agency "must point to clear congressional authorization for the power it claims," someplace over and above the normal statutory basis we require. The result is statutory interpretation of an unusual kind.

Roberts replies that there is nothing new here. FDA is the root:

The dissent criticizes us for "announc[ing] the arrival" of this major questions doctrine, and argues that each of the decisions just cited simply followed our "ordinary method" of "normal statutory interpretation." But in what the dissent calls the "key case" in this area, Brown & Williamson, the Court could not have been clearer: "In extraordinary cases … there may be reason to hesitate" before accepting a reading of a statute that would, under more "ordinary" circumstances, be upheld. Or, as we put it more recently, we "typically greet" assertions of "extravagant statutory power over the national economy" with "skepticism." Utility Air. The dissent attempts to fit the analysis in these cases within routine statutory interpretation, but the bottom line—a requirement of "clear congressional authorization"—confirms that the approach under the major questions doctrine is distinct.

And, in what must be a first, the Chief Justice gives a fig what scholars think!

As for the major questions doctrine "label[],"it took hold 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. Scholars and jurists have recognized the common threads between those decisions. So have we. See Utility Air (citing Brown & Williamson and MCI); King v. Burwell (2015) (citing Utility Air, Brown & Williamson, and Gonzales).

Reminds me of this line from Obergefell:

Yet there has been far more deliberation than this argument acknowledges. There have been referenda, legislative debates, and grassroots campaigns, as well as countless studies, papers, books, and other popular and scholarly writings. There has been extensive litigation in state and federal courts

In response, Kagan charges that the "major questions doctrine," to the extent that it existed, was very different before John Roberts corrupted it:

The majority claims it is just following precedent, but that is not so. The Court has never even used the term "major questions doctrine" before. And in the relevant cases, the Court has done statutory construction of a familiar sort. It has looked to the text of a delegation. It has addressed how an agency's view of that text works—or fails to do so—in the context of a broader statutory scheme. And it has asked, in a common-sensical (or call it purposive) vein, about what Congress would have made of the agency's view—otherwise said, whether Congress would naturally have delegated authority over some important question to the agency, given its expertise and experience. In short, in assessing the scope of a delegation, the Court has considered—without multiple steps, triggers, or special presumptions—the fit between the power claimed, the agency claiming it, and the broader statutory design. . . .

What's in a name, anyway?

I'll have a few more posts on the Roberts/Kagan brawl.

Too bad for you, dude; from Lindblad v. Bolanos, decided by Judge Susan Illston (N.D. Cal. 2022), and filed July 4 (ha!):

Ever-present in the background of the [First Amended Complaint] is an allegation that law enforcement agents from Colorado "followed" plaintiff to California and are conspiring with law enforcement in California to carry out clandestine surveillance with hopes of obstructing plaintiff's pro se litigation activities through intimidation and harassment.

The Court attempts to focus on nonfrivolous allegations only. [Details omitted. -EV] …

All remaining claims alleged in the FAC are dismissed as frivolous pursuant to section 1915(e)(2)(B)(i). See, e.g., FAC at 89 ("It is alleged Chief Bolanos is involved with cartels and organized crime."); Id. at 69, 71, 81, 85 (repeatedly commenting on the race of Officers Chung and Cheung and stating "[e]ven the postal, cable, and telephone employees are primarily Chinese across the nation, in what appears a coupe against the ownership rights of Americans with inclusion of the plaintiff," and "arguing the 14 Amendment right to equality have been largely frustrated by minority groups in government who are bias, legally, against Caucasian and White skinned people."); Id. at 63 ("Officer Azar, likely being of a Jewish Judaism, appeared particularly annoyed by the First Amendment Freedom of Speech that the plaintiff expressed relevant to the [August 19] situation. After witnessing two Chinese officers arriving on a scene, in a town that was previously predominantly white, it was frustrating for the plaintiff to see the third to arrive was of Jewish descent."); Id. at 86–87 ("the Mexican Government is a massive ring of corruption and due to gang activity and a failing economy, the Mexican Government have never been able to operate their government and become susceptible to bribes and using police powers to ascertain personal gain. It is a known feat of the Mexican Government to redraw borders and extract the wealth from the United States."); Id. at 25–26 ("plaintiff has multiple people in his family at the pinnacle of economic and political activity" and "defendants attempted to capitalize by identity theft of the plaintiff and his family who hold the strongest royal-bloodline worldwide.").

You strongest royal-bloodline people better watch out for those of us of a frustrating Jewish Judaism, as well as our Chinese buddies. And always remember: We're sleeping with your women.

Every summer, we prepare the supplement for the Barnett/Blackman casebook. In recent years, we have tried to edit the cases on the same day they are decided. This year, the back-to-back Dobbs/Bruen drops delayed our schedule. We have now finished our review. Here are the nine cases that will be in the supplement.

• Carson v. Makin
• City of Austin v. Reagan National
• Dobbs v. Jackson Women's Health Organization
• Kennedy v. Bremerton School District
• New York State Rifle & Pistol Association v. Bruen
• Shurtleff v. City of Boston
• Torres v. DPS
• U.S. v. Vaello-Madero
• West Virginia v. EPA

What a momentous term! If I had to predict, about half of these cases will make their way into the fifth edition of the casebook. Dobbs overruled Roe. Carson completes the trilogy that began with Trinity Lutheran and Espinoza. Kennedy finally interred Lemon, and more importantly, eliminated the Lemon defense. Bruen finally decided the issues left unresolved in Heller and McDonald. Torres v. DPS may represent a new schism on the Court with sovereign immunity. And West Virginia may be the first step (or at least half a step) to a reinvigoration of the non-delegation doctrine.

The fifth edition of the casebook should be published in 2026--just in time for the Semiquincentennial. What will constitutional law look like for the 250th anniversary of the signing of the Declaration of Independence?

As a general matter, conservatives oppose cancel culture. They will defend to the hilt most historical figures who do not meet modern progressive standards. Washington, Jefferson, and Madison must be saved. But there is one President that conservatives, as well as liberals, are happy to destroy: Woodrow Wilson.

The first footnote of Justice Gorsuch's concurrence in West Virginia v. EPA opens fire on Wilson:

It is vital because the framers believed that a republic—a thing of the people—would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable "ministers." The Federalist No. 11 (A. Hamilton). From time to time, some have questioned that assessment. [FN1]

[FN1] For example, Woodrow Wilson famously argued that "popular sovereignty" "embarrasse[d]" the Nation because it made it harder to achieve "executive expertness." In Wilson's eyes, the mass of the people were "selfish, ignorant, timid, stubborn, or foolish." He expressed even greater disdain for particular groups, defending "[t]he white men of the South" for "rid[ding] themselves, by fair means or foul, of the intolerable burden of governments sustained by the votes of ignorant [African-Americans]." He likewise denounced immigrants "from the south of Italy and men of the meaner sort out of Hungary and Poland," who possessed "neither skill nor energy nor any initiative of quick intelligence." To Wilson, our Republic "tr[ied] to do too much by vote."

Gorsuch hits every note. Wilson rejected Hamilton. Wilson hated black people. Wilson hated Italians. (I bet Wilson supported the Blaine Amendment and the Sullivan Act.) Wilson hated democracy. But Wilson loved bureaucrats.

Was Woodrow Wilson at all relevant to the major questions doctrine, or the Clean Air Act. Of course not. But we should never pass an opportunity to dump on the former Princeton President.

Indeed, Justice Gorsuch links Justice Kagan's dissent with Wilson.

In places, the dissent seems to suggest that we should not be unduly "'concerned'" with the Constitution's assignment of the legislative power to Congress. Echoing Woodrow Wilson, the dissent seems to think "a modern Nation" cannot afford such sentiments. But recently, our dissenting colleagues acknowledged that the Constitution assigns "all legislative Powers" to Congress and "bar[s their] further delegation." Gundy (plurality opinion of KAGAN, J.).

Fighting words.

More recently, Judge Andy Oldham opened up on Wilson in Cochran v. SEC:

Wilson and Landis fundamentally disagreed with the Founders' vision. Wilson and Landis thought the accumulation of all powers into one set of hands was—far from a vice—a virtue. And they wanted those all-powerful hands connected to an administrative agency, far away from the three branches of government the Founders worked so hard to create, separate, and balance. And most of all, Wilson and Landis wanted power as far away from democracy and universal suffrage as possible. . . . .

Notwithstanding his reassurance that German political principles could be Americanized, Wilson elsewhere made clear that he would scrap the Constitution if he could. One of his most notable departures from the Constitution was his distaste for democracy and popular sovereignty—especially after the document was amended to allow for an increasingly diverse electorate.

#CancelWoodrow.