Supreme Court Poised to Limit EPA's Power
In four cases consolidated before it for argument the United States Supreme Court showed that it is poised to cripple the EPA by making unmanageable demands on Congress to pass new legislation.
Supreme Court Poised to Limit EPA's Power
In four cases consolidated before it for argument the United States Supreme Court showed that it is poised to cripple the EPA by making unmanageable demands on Congress to pass new legislation.
WASHINGTON (CN) — Avoiding questions of so-called ministerial duty for teachers at religious colleges, the U.S. Supreme Court passed Monday on an appeal from a Christian college in Massachusetts after the state's highest court allowed an employment discrimination case against the school to go to trial.
Margaret DeWeese-Boyd sued Gordon College after it denied the tenured associate professor of social work a promotion to full professor in 2016. Despite the Faculty Senate unanimously recommending her for the gig, the college said its decision was based on her lack of scholarly work.
DeWeese-Boyd, however, argued in state court that the denial was based on her advocacy for the LGBTQ community, with goes against the school’s religious beliefs.
The Massachusetts Supreme Judicial Court sided with DeWeese-Boyd, finding the so-called ministerial exception - a legal doctrine that protects religious institutions from most discrimination claims - did not apply to her.
Gordon College appealed to the Supreme Court, but the justices decided Monday not to take up the case this term.
While the denial may be good news for the professor for now, a statement written by conservative Justice Samuel Alito respecting the denial suggests it won't be the last time the issue comes before the nation's highest court.
“I have doubts about the state court’s understanding of religious education and, accordingly, its application of the ministerial exception,” the George W. Bush appointee wrote about the core question on appeal: whether a school can extend its protection of religious teachings to subjects traditionally outside the faith-based sphere.
Relying heavily on the court’s 2020 decision in Our Lady of Guadalupe School v. Morrissey-Berru, Alito said the ministerial exception protects the “‘autonomy’ of ‘churches and other religious institutions’ in the selection of the employees who ‘play certain key roles.’"
A law school accreditation standard requires full opportunities for underrepresented groups, and on Friday the council of the ABA's Section of Legal Education and Admissions to the Bar approved a proposed revision to clarify that the standard does not allow schools to engage in “racial balancing” or limit representation of individuals from any group.
The proposed revision to Standard 206 is one of various suggested changes set to go to the ABA House of Delegates as soon as August 2022 at the annual meeting.
Earlier this month, the House of Delegates approved a plan to add “ethnicity,” “gender identity or expression” and “military status” to the Standard 205, which focuses on nondiscrimination and opportunity. It also approved a requirement for Standard 303, which focuses on curriculum, that law schools provide education about bias, cross-cultural competency and racism.
Regarding the more recent proposed revisions to Standard 206, notice and comment has been held, and there were concerns that earlier proposals did not comport with existing case law, according to a Feb. 10 standards committee memo.
The memo states that religiously affiliated law schools are not required under the standard to “ act inconsistently with the essential elements of its religious values and beliefs,” providing the schools’ actions are protected by applicable law. The issue of state law and affirmative action are also addressed in the memo.
“For law schools in jurisdictions that prohibit the consideration of race and ethnicity in employment and admissions decisions, Standard 206 does not compel the consideration of race and ethnicity in such decisions,” the memo states.
Others who participated in notice and comment asked for consideration of whether focusing on race and ethnicity in the standard creates a “two-tiered” diversity, equity and inclusion system, which “gives priority to racial and ethnic diversity at the expense of LGBTQ+ and disability diversity,” the memo states.
On June 19, 2019, EPA issued the final Affordable Clean Energy rule (ACE) – replacing the prior administration’s overreaching Clean Power Plan with a rule that restores rule of law, empowers states, and supports energy diversity. The ACE rule establishes emission guidelines for states to use when developing plans to limit carbon dioxide (CO2) at their coal-fired electric generating units (EGUs). In this notice, EPA also repealed the CPP, and issued new implementing regulations for ACE and future rules under section 111(d).
On January 19, 2021, the D.C. Circuit vacated the Affordable Clean Energy rule and remanded to the Environmental Protection Agency for further proceedings consistent with its opinion.
One would think that a vacated rule has no effect mooting the dispute. Not so, say the challenging states. Oddly? a large group of power companies defends the EPA for giving them flexible authority.- GWC
n this final Friday of African-American History Month, President Joe Biden announced federal judge Ketanji Brown Jackson as his pick for the Supreme Court. In doing so, he remained true to his campaign promise to nominate a black woman to the nation’s highest court and make history.
Brown Jackson currently sits on the U.S Court of Appeals for the D.C. Circuit, a Senate-confirmed position she has held since last June. Prior to her time as a circuit judge, she was a district judge and the vice chair of the U.S. Sentencing Commission, both of which are positions requiring Senate confirmation.
These previous confirmations are particularly advantageous given the levels of partisanship in our current politics. Though she would survive a strictly party-line Senate vote, Brown Jackson has received Republican support for all her previous confirmations. In 2010, she received unanimous consent to be vice chair of the Sentencing Commission. In 2013, she was confirmed by voice vote to be a district judge on the U.S. District Court for D.C.
And just last year, she was confirmed as a circuit judge by a 53-44 Senate vote, with Republican senators Lisa Murkowski, Lindsey Graham, and Susan Collins voting in favor. It would be odd if all three believed Brown Jackson was qualified for the circuit court last year but suddenly adopted the view that she’s not competent to sit on the Supreme Court now. This calculation was likely part of what Biden considered in making her his choice. Perhaps a wildcard feature in her favor: She is related by marriage to former Republican Speaker of the House and Vice Presidential candidate Paul Ryan, who said at her confirmation hearing for district judge: “Our politics may differ, but my praise for Ketanji’s intellect, for her character, for her integrity, it is unequivocal. She is an amazing person, and I favorably recommend your consideration.”
Brown Jackson’s pedigree is clearly the stuff of a Supreme Court justice-in-the-making. She is a graduate of Harvard College and Harvard Law, clerked for Justice Stephen Breyer (the man she will replace, if successfully confirmed), and has held positions in the executive branch and private practice. But one detour stands out: Brown Jackson spent two years as a public defender—which is, as SCOTUS blog points out, atypical for justices, but similar to the background of the man whose mantle she would likely take up, Thurgood Marshall.
The national stage that Supreme Court hearings offer will almost certainly lead to a few contentious exchanges between Brown Jackson and Republican senators. One aspect of her judicial decisions that may attract special attention are her rulings concerning the Trump administration, such as when she ruled Trump’s former White House counsel Don McGahn would be required to testify before the House committee investigating Russian interference in the 2016 election. But perhaps of even more interest will be that she did not believe Trump’s claim of executive privilege covered his removal of classified documents from the White House and joined the Circuit Court’s opinion that Trump would need to turn over those records. A few Republican senators may focus on these cases to signal fealty to the former president.
But amid all the debates about Brown Jackson’s record, her judicial philosophy, and the politics and political theater that will certainly attend her nomination and confirmation hearing, the nation would do well to pause and appreciate this historic moment.
If confirmed, the appeals court judge will be the first Black woman to sit on the high court’s bench.
The U.S. Supreme Court's action has cemented Alabama as a state in which its Black citizens remain—as they have always been—underrepresented in Congress.
February 18, 2022 at 12:02 PM
Discrimination in voting on the basis of race is forbidden by the 15th Amendment and by the Voting Rights Act (VRA), which since 1965 has protected the vote. Although Alabama’s African American citizens are 27% of the state’s population, the state sends only one Black representative to Congress in its seven member delegation. We believe that the Supreme Court erred seriously in vacating an injunction against use of a newly drawn map in Alabama. The burden on the state to quickly redraw its map, and possibly revise dates related to an upcoming primary does not outweigh the public interest in making certain that the votes of African Americans who have never had representation equivalent to their potential voting strength are not diluted under the VRA.
In Merrill v. Milligan, a three-judge district court found last month that the Legislature’s newly drawn map discriminated by race and violated section 2 of the Voting Rights Act, 52 USC 10301. That measure provides, in part “A violation … is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens .”
There is no express right to vote in the federal Constitution, but the right to vote is fundamental, protected by statute and by the 13th, 15th, 19th, and 24th amendments. Yet the Supreme Court has vacated the district court’s preliminary injunction ordering a second Black majority congressional district.
On Jan. 24, the three-judge panel specified by the VRA issued a preliminary injunction barring the secretary of state from using the Legislature’s newly drawn map for the primary election to be held in late May for the November midterm elections. We were heartened that the panel included two judges appointed during the term of Donald Trump, and by its comprehensive 225-page memorandum relying on the extensive factual record which it developed at trial.
Yet the United States Supreme Court, in an unsigned order issued without opinion, on Feb. 7 stayed the preliminary injunction. The injunction compelled the Legislature to revise its post-census legislative map, to recognize a second Black majority congressional district.
The Supreme Court granted certiorari, removing the case from the district court. The majority offered no explanation but Brett Kavanaugh, joined by fellow Justice Samuel Alito, explained that the district court had acted too close to the late May primary which selects candidates for the November midterm election, and for which mail-in voting begins in late March. The court, said Kavanaugh, was relying on the cautionary principle of Purcell v. Gonzalez—a 2006 chambers opinion which has now hardened into a stone wall of uncertain extent. Chief Justice John Roberts dissented, saying that “the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction.”
In Purcell, 18 days before a Nov. 7, 2006, election, the United States Supreme Court in a brief per curiam opinion vacated a three-judge district court panel’s “four-sentence October 5 order enjoining Arizona from enforcing” an Arizona law which required voters to present proof of citizenship at the polls. That emergency docket order has by repetition been elevated to an indeterminate but foundational principle that courts should avoid issuing highly disruptive orders too close to an election. But now too early means early in an election year.
Absentee primary voting begins March 30 for the late May primary. As Justice Elena Kagan pointed out in her dissent, Alabama has plenty of time to redraw its map: the feasibility of which plaintiffs had demonstrated. The state’s Black voters are concentrated in Montgomery County and in the rich soils of the region long known as the “Black Belt.”
We are alarmed by the ruling. The Supreme Court has long emphasized that injunctions are an extraordinary remedy—and that courts should be loath to stay the preliminary order of a lower court unless the public interest compels it to act. Justice Kagan’s dissent emphasizes that the “Thornburg v. Gingles, 478 U. S. 30 (1986), principles are: (1) that the ‘minority group is sufficiently large and geographically compact to constitute a majority’ in a district, (2) that the minority group ‘is politically cohesive,’ and (3) that the ‘white majority votes sufficiently as a bloc to enable it …’”
There is no doubt that those conditions have been met. What is also certain is that the Supreme Court, by granting certiorari, has locked in place for the 2022 midterm elections the existing racial disparities. It has cemented Alabama as a state in which its Black citizens remain—as they have always been—underrepresented in the Congress of the United States.
This sad episode reminds us that in the 60 years since Baker v. Carr’s “one person, one vote” rule was declared—despite its promise and the VRA—African Americans have not achieved an end to denial of the right to equal participation that Alabama long and notoriously withheld on the basis of race.
After being detoured by the Fifth Circuit, the Texas Supreme Court heard arguments in what remains of a federal lawsuit challenging Texas' restrictive abortion law.
AUSTIN, Texas (CN) — The Texas Supreme Court heard oral arguments Thursday in the federal case against a state law that bans abortions after six weeks of pregnancy.
The all-Republican court has been tasked by the Fifth Circuit to decide whether Texas medical licensing officials are the proper defendants in a lawsuit filed by several abortion providers in the state.
The Texas Heartbeat Act, also referred to as Senate Bill 8, prohibits a person from terminating a pregnancy once a fetal heartbeat is detected, or around six weeks of pregnancy, before many women even know they are pregnant.
The law puts enforcement power in the hands of private citizens, who can bring civil lawsuits against anyone who aids and abets an illegal abortion. Defendants could include the abortion clinic physician and staff, anyone who provided a person with money to pay for the procedure or those who provided transportation to a clinic. Plaintiffs can be awarded a minimum of $10,000 and attorney fees if successful in their suit.
On behalf of the state, Texas Solicitor General Judd Stone kicked off oral arguments Thursday by emphasizing that state lawmakers made it clear that no state official may enforce SB 8.
“The legislature has directed that no enforcement of that prohibition may be taken or threatened by the state,” said Stone. “Plaintiffs' indirect enforcement theory cannot supplant the legislature's clear no-enforcement directive.”
“Eight justices on the Supreme Court did not think that,” said Chief Justice Nathan Hecht, referring to the nation's top court allowing the claims against licensing officials to go forward.
Stone argued that a majority of the justices were “making a guess” in their decision.
Justice Evan Young asked the solicitor general if physicians would have to report to the Texas Medical Board if they were sued under SB 8. Stone proposed that the board craft a rule stating that they do not enforce SB 8, and therefore the physician would not be required to report such information.
Marc Hearron, senior counsel at the Center for Reproductive Rights, argued for the plaintiff abortion providers. He opened his remarks by asserting that medical licensing officials can indirectly enforce SB 8 through disciplinary action against doctors and nurses.
In their questioning of Hearron, the justices focused primarily on how a medical licensing official would go about enforcing SB 8. The attorney explained that due to provisions in the state's Health and Safety Code and Occupations Code, licensing officials can face disciplinary action if they “commit a prohibited practice.”
In response to a question about doctors having to report to the medical board, Hearron said “the solicitor general has now taken a position that it is unclear whether a doctor who doesn't report a lawsuit that is filed...the state might still be able to take enforcement action.”
“If we adopt the solicitor general’s reading, it seems like we would allay all of your concerns,” Young said.
Hearron responded that if the court were to agree with the state, then his clients would have the certainty that licensing officials would not take any action against physicians. However, if the justices were to decide that licensing officials do have the ability to enforce SB 8, the plaintiffs ask that they be enjoined from using such authority.
In a call with reporters after the hearing, Hearron said the federal case against SB 8 does not stand a chance of securing an injunction that would stop it from being enforced, and the case would end altogether if the Texas Supreme Court rules licensing officials cannot enforce the ban.
With some notable exceptions, opinion and commentary in the West have solidified around a black-and-white view of the situation in Ukraine. The near-total consensus is it’s all Russian President Vladimir Putin’s fault; Russia’s stated grievances have no legitimate basis whatsoever; and the only conceivable Western response is to refuse to make any concessions, stand up to Moscow, send more U.S. troops to Europe (though not to Ukraine itself), and proceed with tough economic sanctions if Russia invades.
In some ways, I wish I could subscribe to this view because it would allow me to stop thinking about this complicated set of issues and join the chorus. But I can’t do that because key aspects of the crisis strike me as puzzling, and I keep hearing echoes of the same beliefs, tropes, and engrained orthodoxies that have led U.S. leaders astray in the past. These reflexive responses are making a bad situation worse and are likely to do further damage to Ukraine and to broader U.S. interests.
For starters, I’m puzzled by the gap between the level of resolve conveyed by the United States and NATO and the diplomatic position the alliance has taken. U.S. President Joe Biden has made it clear that the United States is not going to send U.S. troops to fight for Ukraine, and no important European countries are proposing to do so themselves. If anything, the United States has sent the opposite message by withdrawing U.S. military personnel and relocating its diplomats. Apart from a few hotheads, nobody in the U.S. foreign-policy establishment wants to fight a real war for Ukraine, a tacit acknowledgement that this is not, in fact, a truly vital interest.
By contrast, Russia has made it clear it is willing to use force to achieve its core objective, which is to keep Ukraine from joining NATO—not just now but at any point in the foreseeable future. It demonstrated that willingness back in 2014, and Biden thinks they’re about to fight a war of choice now. As with 2014, current movement of Russian troops into the Donbass region is illegal, immoral, and indefensible from the West’s perspective, but it has happened, nevertheless. Even if Russia decides not to mount a broader invasion, the crisis has done considerable economic damage to Ukraine already.
Here’s what puzzles me. Not only is there a significant imbalance in resolve—i.e., what Russia sees as a vital interest (and thus worth fighting for) is less than vital for the West (and thus not worth fighting for)—there is also an imbalance in directly relevant military capabilities. The United States and NATO may be far stronger than Russia overall, but Ukraine is right next door to Russia and therefore vulnerable to its air and ground forces.
Yet despite this yawning gap ....
I appreciate that the editors of Notice & Comment have given me the opportunity to reply to Ilan Wurman’s post and Mike Ramsey’s five-post series addressing my concerns about their Seila Law amicus brief with Steven Calabresi, Michael McConnell, Sai Prakash, Jeremy Rabkin, and Michael Rappaport, and about the errors in their scholarship cited in the brief. My papers raising these questions are primarily Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism, Yale J. of Law & the Humanities (forthcoming 2022), and my paper The Indecisions of 1789 (see especially Appendix), as well as Vesting, Stan. L. Rev. (forthcoming 2022). I note that I had raised these concerns in polite private correspondence over the past two years, hoping for openness to dialogue.
As I said in my first post on Jan. 7, I want to reiterate my appreciation that Wurman and Ramsey have stepped forward to defend their use of Blackstone and that they have conceded one of these errors: their misinterpretation of the royal prerogative of “disposing” offices as removing from office. However, they claim that changing the wording and plain meaning of a Blackstone quotation (changing “I do not know” X into “not X”) was simply a “clarifying” of its overall meaning, and they dismiss these errors as irrelevant.
I think it is important to acknowledge how this misquote itself is a microcosm of a pervasive problem in originalism: because of a series of assumptions, originalists often jump to conclusions of certainty from more uncertain and contested meanings. Here, Blackstone was explicitly saying “I do not know” whether something was true about the law of offices, and the unitary theorists changed the words to jump from Blackstone’s explicit uncertainty to a statement of certainty in their brief and two articles. That should be a serious red flag about originalist methods, and it should have been a moment for the authors to pause and reconsider their strongly worded conclusions in their brief: claims of “overwhelming weight of the evidence” (p. 7), that their conclusions were “unquestionabl[e],” that our alternative interpretation was “simply a disagreement with the Constitution.” (p. 17).
Nevertheless, Wurman concluded: “In any event, I am not persuaded that the brief’s central claim about English law and practice relating to the king’s removal power is incorrect, or even materially in doubt. Jed so far hasn’t pointed to specific evidence to the contrary.”
In the drafts I sent them (linked above) and in my private correspondence, I offered many different kinds of evidence clearly to the contrary, several passages directly from Blackstone:
I also offered more contemporary 18th century sources (Edmund Burke and 18th c. dictionaries) and a series of modern historical sources confirming no general rule of royal removal and a long tradition of non-removable offices. You can find a short summary here (and the most relevant paper “Removal of Context” on SSRN).
To be clear, the misquoting of Blackstone may be their most obvious error, but these are not the most serious, pervasive, and fundamental historical errors. The “Decision of 1789” plays a more central role in the unitary executive precedents (Myers, Seila, etc.), and Sai Prakash’s misinterpretations of First Congress sources were more widespread (Appendix here). Former federal judge Michael McConnell’s book has gaps, unsupported claims, and fundamental errors undermining its thesis (described here in “Prerogative vs. Royalism, Blackstone vs. Schmitt, McConnell vs. Amicus”). After many months of sharing my concerns privately, only Wurman and Ramsey have replied publicly, and only on the narrower question of Blackstone on the removal power.
[Article II] Section 4 gives state legislatures the power to prescribe the “Times, Places and Manner” of holding congressional elections, but absent the large caveat in the corresponding provision in Article II: “Congress may at any time by Law make or alter” the state regulations on time andmanner.49× 49. Id. art. I, § 4, cl. 1.
“As the Legislature Has Prescribed”: Removing Presidential Elections from the Anderson-Burdick Framework - Harvard Law Review NOTE"These observations, along with the document’s plain text, undermine the contention that the Constitution protects the right of voters to have a free choice of presidential candidates."