Vermeule: WVA v. EPA is a specious attack on the Clean Air Act - The Washington Post

"West Virginia v. EPA illustrates that every last methodological tenet professed by the [conservative legal]movement will be downplayed, qualified or abandoned when the chance arises to limit the regulatory authority of the federal agencies, especially in environmental matters."

Adrian Vermeule is a brilliant and notorious Harvard Law Professor.  As I observed a few months ago in a review of his new book Common Good Constitutionalism  Vermeule will confound both progressives and conservatives.  This is conservatives' turn in the dock.  A co-author with Cass Sunstein of Law and Leviathan, Vermeule unlike other conservatives  defends the administrative state that began with the New Deal's "alphabet agencies".   He rejects the purportedly "originalist" and "textualist" rationales that mask a determination to drastically reduce the role of government. - GWC

There is no conservative legal movement - The Washington Post

By Adrian Vermeule (Harvard Law School)

On the last day of the Supreme Court’s term, in a case called West Virginia v. Environmental Protection Agency, the Court declared that the Clean Air Act does not clearly authorize the EPA to create a Clean Power Plan — in other words, to set standards for emissions from existing power plants with a view to encouraging “generation shifting” of electricity production toward sources that emit less carbon dioxide. If this does not sound like the stuff of great events, it was made so by the court’s approach to the case. Chief Justice John G. Roberts Jr., writing for the majority, announced expressly, for the first time, that the court would apply a “major questions doctrine.” According to the majority, the doctrine holds that in “extraordinary cases” the court will apply a “different approach” than the ordinary legal principles governing the interpretation of statutes. Instead, it will demand clear congressional authorization for agency action that is, in the judges’ view, “highly consequential,” posing questions of “economic and political significance.”

Commentators rushed to discuss the significance of West Virginia v. EPA for the conservative legal movement, to which they assumed the justices in the majority belong, perhaps because the court limited abortion rights and strengthened gun rights in the same term. But that framing rests on an error: In reality, as this case makes clear, there is no conservative legal movement, at least if legal conservatism is defined by jurisprudential methods rather than a collection of results. West Virginia v. EPA illustrates that every last methodological tenet professed by the movement will be downplayed, qualified or abandoned when the chance arises to limit the regulatory authority of the federal agencies, especially in environmental matters.

The conservative legal movement distinguishes itself from other approaches by declaring itself united not around “results-oriented jurisprudence” but rather around a set of supposedly neutral methods for interpreting legal texts. Conservative jurisprudence — again, as advertised — has four pillars: originalism, textualism, traditionalism and judicial restraint. Although different conservatives emphasize one or the other approach, all are staples of Federalist Society events and lauded in the opinions of conservative justices.

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