The Respect for Marriage Act - securing by statute the right of same-sex couples to marry - has passed the U.S. Senate. House approval in the lame-duck session is presumed, as is Joe Biden's signature. Passage will render moot Clarence Thomas's concurrence in Dobs v. Jackson Women's Health. The senior Associate Justice there cast doubt on the substantive due process concept underlying rights of privacy and personal autonomy. - GWC
Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.
Justice Anthony Kennedy - for the majority in Obergefell v. Hodges (2015)view of marriage as between
“(a) For the purposes of any Federal law, rule, or regulation in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.
“(b) In this section, the term ‘State’ means a State, the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.
“(c) For purposes of subsection (a), in determining whether a marriage is valid in a State or the place where entered into, if outside of any State, only the law of the jurisdiction applicable at the time the marriage was entered into may be considered.”.
But today - in a sign of growing acceptance of same-sex marriage twelve Republican Senators joined the Democrats and passed the Defense of Marriage Act.
The Supreme Court will hear oral argument on Tuesday in a dispute over the Biden administration’s authority to set immigration policy. Texas and Louisiana are challenging a federal policy that prioritizes certain groups of unauthorized immigrants for arrest and deportation, arguing that it violates federal law. But the Biden administration and its supporters counter that a ruling for the states would have sweeping implications – not only for immigration policy but also for states’ ability to sue the federal government when they disagree with its actions.
The policy at the heart of United States v. Texas is outlined in a September 2021 memorandum by Secretary of Homeland Security Alejandro Mayorkas on the federal government’s priorities for immigration enforcement. Explaining that there are over 11 million noncitizens currently in the United States who could be subject to deportation, but that the Department of Homeland Security does not have the resources to apprehend and deport all of them, the memorandum instructed immigration officials to prioritize the apprehension and deportation of three groups of noncitizens: suspected terrorists, people who have committed crimes, and those caught recently at the border. Mayorkas’ memo resembles immigration-enforcement policies enacted under President Barack Obama and other prior administrations, though not Donald Trump, who sought to limit the role of discretion in immigration enforcement.
Texas and Louisiana went to federal court in Texas to challenge the Biden administration’s policy, arguing that federal law requires the government to detain and deport many more noncitizens than those identified by Mayorkas as high prioritizes. The federal government, the states argued, does not have the authority to prioritize some unauthorized immigrants for deportation while downplaying others. U.S. District Judge Drew Tipton agreed, and he vacated the policy nationwide in June. The U.S. Court of Appeals for the 5th Circuit declined to put Tipton’s ruling on hold while the government appealed.
The Biden administration came to the Supreme Court in July, asking the justices to The Supreme Court will hear oral argument on Tuesday in a dispute over the Biden administration’s authority to set immigration policy. Texas and Louisiana are challenging a federal policy that prioritizes certain groups of unauthorized immigrants for arrest and deportation, arguing that it violates federal law. But the Biden administration and its supporters counter that a ruling for the states would have sweeping implications – not only for immigration policy but also for states’ ability to sue the federal government when they disagree with its actions.
The policy at the heart of United States v. Texas is outlined in a September 2021 memorandum by Secretary of Homeland Security Alejandro Mayorkas on the federal government’s priorities for immigration enforcement. Explaining that there are over 11 million noncitizens currently in the United States who could be subject to deportation, but that the Department of Homeland Security does not have the resources to apprehend and deport all of them, the memorandum instructed immigration officials to prioritize the apprehension and deportation of three groups of noncitizens: suspected terrorists, people who have committed crimes, and those caught recently at the border. Mayorkas’ memo resembles immigration-enforcement policies enacted under President Barack Obama and other prior administrations, though not Donald Trump, who sought to limit the role of discretion in immigration enforcement.
There are a lot of roads to ruin and, sometimes, redemption. John J. Lennon, who just served his 21st Thanksgiving in prison for murder, has taken one. Here - in a piece first published in New York magazine he tells the story of another: Keri Blakinger. - GWC
When you hear snippets of Keri Blakinger’s story — white girl, Cornell student, busted with a huge amount of heroin, spends under two years in prison, gets out, graduates — you may say, “This is what happens to privileged white girls who ‘misbehave.’” Or even, “a nauseating example of white privilege.” These were among the tweets that followed a 2014 Ithaca Voice story about Blakinger with this headline: “Cornell senior arrested with $50K of heroin graduates after 21 months behind bars.”.
In Blakinger’s memoir, Corrections in Ink, she reflects on those mean-spirited tweets. “I realized they were not wrong about the privilege,” she writes. “I thought back on all my interactions with the system over the years, the moments that could have gone differently if I were Black, or did not have money … Everybody should get the second chances I got, but most people do not.” That Voice story was published before Blakinger made her return, before she became an investigative journalist whose reporting created real change for people in prison. Over the years, Blakinger — now a staff writer for the Marshall Project — has told her personal story in bits and pieces, in personal essays and radio interviews. In 2020, she talked to me for an episode of This Is a Collect Call From Sing Sing, a podcast I hosted over the phone in prison, where I’m serving a 28-years-to-life sentence. I remember thinking, Wow! This woman has got to write a book. And now she has.
Legal scholars and academics discussed how the Constitution can and has informed administrative and legislative policy decisions. They also touched on the perceived politicization of the judicial system, primarily the Supreme Court, and suggestions on how to limit judicial overreach. The discussion was part of Georgetown Law Center’s and the American Constitution Society’s “Reviving Progressive Constitutional Political Economy” conference in Washington, D.C.
I suppose it was fitting, in a depressing kind of way, that the U.S. bishops' conference plenary coincided with former President Donald Trump's announcement he is seeking the presidency in 2024. In both church and state, the future will be dominated by divisiveness and a culture war ethic for the next few years, a result that contradicts the founding mission of both. The future is grim.
The church understands its most essential mission to be proclaiming Christ as "Lumen gentium," the "Light of nations" in the words of the Second Vatican Council. "Since the Church is in Christ like a sacrament or as a sign and instrument both of a very closely knit union with God and of the unity of the whole human race, it desires now to unfold more fully to the faithful of the Church and to the whole world its own inner nature and universal mission,” the Dogmatic Constitution on the Church states.
Alas, the "unity of the whole human race" is not likely going to be part of the U.S. bishops' agenda during the tenure of Archbishop Timothy Broglio as president of the conference. As Cardinal Angelo Sodano's right-hand man during the 1990s, he not only witnessed the willful credulity extended to serial pedophiles like then-Fr. Marciel Maciel, founder of the Legionaries of Christ, but the utter lack of sympathy and solidarity extended to the victims of clergy sex abuse. The 1990s was the era in which Rome shot down any and all efforts by U.S. bishops to confront the crisis. Ask the bishops who were trying to deal with pedophiles in their ranks back then and they will tell you: Rome would not budge; you could not laicize these monsters.
At the press conference after his election, when asked about those years and specifically about the Maciel case, the best the new president could offer was the banal observation that "hindsight is always 20/20." To be clear, Broglio worked with Sodano until 2001. It was in 1997 that the Hartford Courant first published an expose of Maciel's depredations. You did not need hindsight to smell the corruption. Sodano, instead, facilitated the corruption. Broglio did nothing.
To be sure, Broglio worked for Sodano, not the other way round, but in the face of moral enormity, there is a moral obligation to avoid collaboration. He could have resigned. He could have become a whistleblower. Instead, he became, at best, a bystander.
Beware the Jabberwock, my son! The jaws that bite, the claws that catch! Beware the Jubjub bird, and shun The frumious Bandersnatch!
— Lewis Carroll, Jabberwocky1×1.LEWIS CARROLL, Through the Looking-Glass and What Alice Found There, inALICE’S ADVENTURES IN WONDERLAND AND THROUGH THE LOOKING-GLASS 196 (Richard Kelly ed., 2015).
Begin with what is uncontroversial: nobody likes to see “agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.”2×2. West Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022) (emphasis added). The challenge is how to determine when that is occurring, not how to feel about it when it does. That challenge has existed for as long as agencies have, and so it’s one that our law has developed many tools to address. But in four important cases decided during the summer of 2021 and last Term, the Court crafted a new approach to tackling that problem by adopting a different and more potent variant of one of these older tools: the “major questions” exception to Chevron3×3. Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). deference.
This Comment describes and evaluates the major questions quartet: the CDC eviction moratorium case,4×4. Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485 (2021) (per curiam). the OSHA vaccine mandate case,5×5. Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., 142 S. Ct. 661 (2022) (per curiam). the CMS vaccine mandate case,6×6. Biden v. Missouri, 142 S. Ct. 647 (2022) (per curiam). and the EPA Clean Power Plan case.7×7. West Virginia v. EPA, 142 S. Ct. 2587. Because none of these cases reached a constitutional holding, they are overshadowed by the Term’s blockbuster decisions involving fundamental rights.8×8.See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022); N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022). But no one should mistake these cases for anything but what they are: separation of powers cases in the guise of disputes over statutory interpretation.
The quartet can be easily summarized.9×9. Easily summarized, that is, for the purposes of serving as fodder for the arguments made in this Comment. Many extremely important questions raised by the major questions quartet lie outside the scope of this Comment. To list a few, I do not discuss questions of justiciability, federalism, environmental or public health policy, or administrative procedure. See, e.g., West Virginia v. EPA, 142 S. Ct. at 2606–07 (assessing justiciability); id. at 2621 (Gorsuch, J., concurring) (raising issue of federalism); id. at 2610–12 (majority opinion) (discussing environmental policy); Ala. Ass’n of Realtors, 141 S. Ct. at 2491–94 (Breyer, J., dissenting) (highlighting public health policy implications of decision); Nat’l Fed’n of Indep. Bus., 142 S. Ct. at 665–66 (analyzing administrative procedure). I briefly touch on questions of remedial scope at infra notes 376–377 and accompanying text. In the CDC case, the Court held that the Centers for Disease Control and Prevention lacked authority to impose a nationwide moratorium on evictions in order to combat the spread of COVID-19.10×10.SeeAla. Ass’n of Realtors, 141 S. Ct. at 2486. Justice Breyer, joined by Justices Sotomayor and Kagan, dissented. Id. at 2490 (Breyer, J., dissenting). In the OSHA case, the Court held that the Occupational Safety and Health Administration lacked authority to compel large private employers — those with a hundred or more employees — to require that their employees be vaccinated against COVID-19 or else take weekly tests and wear masks.11×11.SeeNat’l Fed’n of Indep. Bus., 142 S. Ct. at 663–65. Justice Gorsuch wrote a concurrence, joined by Justices Thomas and Alito. Id. at 667 (Gorsuch, J., concurring). Justices Breyer, Sotomayor, and Kagan issued a joint dissent. Id. at 670 (Breyer, Sotomayor & Kagan, JJ., dissenting). In the CMS case, decided the same day, the Court held that the Centers for Medicare & Medicaid Services had authority to mandate that facilities receiving Medicare or Medicaid funding require their staff to be vaccinated against COVID-19.12×12.See Biden v. Missouri, 142 S. Ct. at 650, 652 (per curiam). The CMS vaccine mandate required that facilities allow workers to claim religious and medical exemptions, and it did not cover staff who teleworked full time. Id. at 651. Justice Thomas, joined by Justices Alito, Gorsuch, and Barrett, dissented, arguing that CMS lacked statutory authority to adopt a vaccine requirement. Id. at 655 (Thomas, J., dissenting). Justice Alito penned a separate dissent, which was joined by Justices Thomas, Gorsuch, and Barrett, arguing that even if CMS had statutory authority, the vaccine requirement was improper because the agency did not follow the requisite notice-and-comment procedure before issuing its rule. Id. at 659 (Alito, J., dissenting). In the EPA case, the Court held that the Environmental Protection Agency lacked authority to adopt the Clean Power Plan, which imposed caps on greenhouse gas emissions at a level that would force power plants to transition away from the use of coal to generate electricity.13×13.See West Virginia v. EPA, 142 S. Ct. at 2616. Justice Gorsuch, joined by Justice Alito, filed a concurring opinion. Id. at 2616 (Gorsuch, J., concurring). Justice Kagan, joined by Justices Breyer and Sotomayor, dissented. Id. at 2626 (Kagan, J., dissenting).
The first crucial thing to understand about the major questions quartet is what it did to administrative law. While ostensibly applying existing major questions case law, the quartet in actuality altered the doctrine of judicial review of agency action in its method and content, in ways that will have momentous consequences. To begin with, the quartet unhitched the major questions exception from Chevron, which has been silently ousted from its position as the starting point for evaluating whether an agency can exert regulatory authority. Instead, the CDC case initiated, and the OSHA and EPA cases completed, a transition to a new order of operations for evaluating the legality of major regulatory action. Under the test that the quartet has now designated as the “major questions doctrine,”14×14. The EPA case marked the first occasion that the Court stated that it was applying what it referred to as the “major questions doctrine.” Seeid. at 2609 (majority opinion); cf. infra note 90 (describing earlier concurring and dissenting opinions referencing the concept). As will be explained below, seeinfra Part I, pp. 267–90, what the Court labeled as the “major questions doctrine” is a clear statement rule that materially differs from the doctrine that the Court applied to major questions in the past. Notably, in 2017, then-Judge Kavanaugh used the term “[t]he major rules doctrine” to refer to this clear statement rule. See U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 417 (D.C. Cir. 2017) (Kavanaugh, J., dissenting from the denial of rehearing en banc) (“The major rules doctrine helps preserve the separation of powers and operates as a vital check on expansive and aggressive assertions of executive authority.”); id. at 421 (“If an agency wants to exercise expansive regulatory authority over some major social or economic activity . . . an ambiguous grant of statutory authority is not enough. Congress must clearly authorize an agency to take such a major regulatory action.”). the Court will not sustain a major regulatory action unless the statute contains a clear statement that the action is authorized. The import of this shift can be measured by the yardstick of earlier cases. If the method enunciated by the quartet is the law, King v. Burwell15×15. 576 U.S. 473 (2015). and Babbitt v. Sweet Home Chapter of Communities for a Great Oregon16×16. 515 U.S. 687 (1995). (among others) cannot possibly have been right, and Massachusetts v. EPA17×17. 549 U.S. 497 (2007). is standing on quicksand.18×18.Seeinfra section I.B.1, pp. 276–82. Yet no Justice acknowledged, let alone defended, the disjunction between such precedents and the method charted in the quartet.
There’s no small irony in the fact that the major questions quartet made this shift in the methodology of deference — a matter of “vast economic and political significance”19×19.Ala. Ass’n of Realtors, 141 S. Ct. at 2489 (quoting Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)). if ever there was one — without clearly stating it was doing so.20×20.Cf. Mila Sohoni, A Fuller Picture of Internal Morality, YALE J. ON REGUL.: NOTICE & COMMENT (Apr. 14, 2021), https://www.yalejreg.com/nc/law-leviathan-redeeming-the-administrative-state-part-03 [https://perma.cc/4CJX-YBYH] (faulting aspects of the Court’s administrative law doctrine for its deficits of clarity and transparency). To knowledgeable observers, however — frankly, to anyone who was paying any attention whatsoever to recent developments in administrative law — the Court’s fortification of the old major questions exception into this new clear statement rule would not have come as a surprise. It was a predictable development, and indeed it was more or less predicted.21×21.See, e.g., Lisa Heinzerling, The Power Canons, 58 WM. & MARY L. REV. 1933, 1942–43 (2017); Nathan Richardson, Essay, Antideference: COVID, Climate, and the Rise of the Major Questions Canon, 108 VA. L. REV. ONLINE 174, 178 (2022); Cass R. Sunstein, There Are Two “Major Questions” Doctrines, 73 ADMIN. L. REV. 475, 476–77 (2021); Justin Walker, The Kavanaugh Court and the Schechter-to-Chevron Spectrum: How the New Supreme Court Will Make the Administrative State More Democratically Accountable, 95 IND. L.J. 923, 925 (2020). Surprise or not, last Term should be flagged as the moment in which prediction and prophecy became reality and rule — both in administrative law and outside of it, too.22×22.Compare Dan Mangan, Trump: I’ll Appoint Supreme Court Justices to Overturn Roe v. Wade Abortion Case, CNBC (Oct. 19, 2016, 10:00 PM), https://www.cnbc.com/2016/10/19/trump-ill-appoint-supreme-court-justices-to-overturn-roe-v-wade-abortion-case.html [https://perma.cc/5XYB-3NU7] (noting that President Trump promised his new Justices would “automatically” overturn Roe), with Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022) (overturning Roe).
There is one prediction, though, that the Court notably did not fulfill last Term. The world of administrative law has recently been on tenterhooks, awaiting with bated breath the Court’s revival of the nondelegation doctrine.23×23.See Gundy v. United States, 139 S. Ct. 2116, 2131–43 (2019) (Gorsuch, J., dissenting); id. at 2130–31 (Alito, J., concurring in the judgment) (stating that he would “support” an “effort” to “reconsider” case law that has allowed “agencies to adopt important rules pursuant to extraordinarily capacious standards”); Paul v. United States, 140 S. Ct. 342, 342 (2019) (Kavanaugh, J., respecting the denial of certiorari) (referring to “important points” in Justice Gorsuch’s Gundy dissent and noting that its treatment of the nondelegation doctrine “may warrant further consideration in future cases”); Nicholas R. Parrillo, A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, 130 YALE L.J. 1288, 1294 (2021) (“But now, for the first time in nearly a century, the Supreme Court is poised to reformulate the nondelegation doctrine, opening the possibility of a revolution in separation of powers and administrative law.”). Yet, strikingly, this did not occur, despite the obvious opening for a nondelegation renaissance that these cases supplied.24×24. In all four cases, challengers to the agencies’ actions raised nondelegation arguments. Seeinfra notes 239–245 and accompanying text. As to the nondelegation doctrine, it is still “[j]am yesterday (yesterday being 1935), and jam tomorrow, but never jam today.”25×25. Adrian Vermeule, Never Jam Today, YALE J. ON REGUL.: NOTICE & COMMENT (June 20, 2019), https://www.yalejreg.com/nc/never-jam-today-by-adrian-vermeule [https://perma.cc/HPH2-JVP8]; cf. CARROLL, supra note 1, at 231 (“‘You couldn’t have [jam] if you did want it,’ the Queen said. ‘The rule is, jam to-morrow and jam yesterday — but never jam to-day.’”). Rather than saying anything of substance about what the law (of nondelegation) is, the Court instead told us that it is emphatically the province of the judicial branch to say what the law must say clearly. Congress and the executive branch must “beware the jabberwock” of nondelegation — but what exactly that creature looks like remains as much left to our imagination as was Carroll’s own invention.26×
