Should Catholic Schools Teach Critical Race Theory? | America Magazine

Should Catholic Schools Teach Critical Race Theory? | America Magazine: 

Christopher J. Devron, S.J.June 03, 2021

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Since the tragic murder of George Floyd, leaders of many independent private schools across the country—including those at Jesuit secondary schools—have been challenged to respond to growing demands from two groups of their alumni, parents and students. The conflict within these schools has played out publicly, on national outlets such as Fox News to local media sources in Chicago, Los Angeles and New York City.

Here is how it all happened. Last summer, many Black alumni, parents and students from these schools came forward to express their experiences of sustained, personal and systemic bias. They reflected the larger movement of racial reckoning across institutions and sectors simultaneous with last summer’s Black Lives Matter demonstrations and protests. On Instagram accounts and in petitions demanding change, school communities heard painful stories ranging from neglect in some cases to outright disrespect and targeted, racist bigotry in others. Their preponderance and similar texture and character give credence to the veracity of these stories and the collective harm done over several decades and generations of students.

Many school leaders formally apologized for this harm, but this group understandably desires more than words. They demand that their schools implement curriculum, student formation, hiring and programmatic measures to promote greater diversity, equity and inclusion (D.E.I.). They want to see accountability and progress in meeting measurable goals in these areas. In response to these grievances and claims, school leaders have adopted and announced various new D.E.I. measures and resources during this school year.

These changes led to a backlash from other groups of parents and alumni, who often expressed their opposition through anonymous letters directed to school leaders. They criticized classroom exercises and lessons that segregated students on the basis of race, seemed overly reliant on racial identity or promoted conceptions of white privilege. They argued these exercises reveal a kind of essentialism that reduces everything to one’s racial background. Some who oppose these measures believe they are the result of critical race theory, which focuses on the structural aspects of racism. Critics charge that this theory finds racism omnipresent and creates a binary zero-sum game of winners (the “oppressors”) and losers (the “victims”). In Catholic school communities, they warn that critical race theory is Marxist and therefore anti-Catholic. Many who are opposed to proactive D.E.I. initiatives offer an alternative approach that teaches that race is a social construct. They want schools to either downplay, ignore altogether or transcend race in order to recover and emphasize the common humanity that unites us.

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Attorney John Eastman Charged with Multiple Disciplinary Counts by the State Bar of California - The State Bar of California - News Releases

Attorney John Eastman Charged with Multiple Disciplinary Counts by the State Bar of California - The State Bar of California - News Releases

Attorney John Eastman Charged with Multiple Disciplinary Counts by the State Bar of California

January 26, 2023

The State Bar of California’s Chief Trial Counsel George Cardona announced today the filing of a Notice of Disciplinary Charges (NDC) against attorney John Charles Eastman (State Bar No. 193726). The 11 charges arise from allegations that Eastman engaged in a course of conduct to plan, promote, and assist then-President Trump in executing a strategy, unsupported by facts or law, to overturn the legitimate results of the 2020 presidential election by obstructing the count of electoral votes of certain states.  

Specific charges allege that Eastman made false and misleading statements regarding purported election fraud, including statements on January 6, 2021, at a rally in Washington, D.C., that contributed to provoking a crowd to assault and breach the Capitol to intimidate then-Vice President Pence and prevent the electoral count from proceeding. 

The Office of Chief Trial Counsel (OCTC) intends to seek Eastman’s disbarment before the State Bar Court. 

In March 2022, Cardona invoked a public protection waiver to announce that an investigation of Eastman was underway. Eastman now faces multiple charges that he violated Business and Professions Code section 6106 by making false and misleading statements that constitute acts of “moral turpitude, dishonesty, and corruption.” 

“There is nothing more sacrosanct to our American democracy than free and fair elections and the peaceful transfer of power,” said Cardona. “For California attorneys, adherence to the U.S. and California Constitutions is their highest legal duty. The Notice of Disciplinary Charges alleges that Mr. Eastman violated this duty in furtherance of an attempt to usurp the will of the American people and overturn election results for the highest office in the land—an egregious and unprecedented attack on our democracy—for which he must be held accountable.”  

As has been widely reported, Eastman drafted two “legal memos” that laid out proposed strategies to block then-President-elect Joe Biden from taking office by circumventing established procedures for the counting of electoral votes in front of the U.S. Congress and overseen by Vice President Pence. The NDC alleges that the strategies proposed by these memos, as well as in remarks Eastman made publicly and privately to President Trump, Vice President Pence, and others, were unsupported by law, based on false and misleading assertions of fact, and designed for the purpose of keeping Trump in office. The NDC alleges that, after hearing from the U.S. Department of Justice that it had not seen any election fraud on a scale that could have affected the election’s outcome, and after multiple courts had rejected election fraud lawsuits, Eastman knew, or should have known, that the factual premise for his proposals―that massive fraud was at play―was false, and that Trump had lost his bid for re-election.  

The NDC also alleges that Eastman ignored these truths when he spoke at the “Save America March” on January 6, 2021, inciting the crowd to take action when, with the intent to convince them that the outcome of the presidential election had been affected by fraud, he said that “dead people had voted” in the presidential election, that Dominion voting machines had fraudulently manipulated the election results, and that Vice President Pence did not deserve to be in office if he did not delay the counting of electoral votes. These statements contributed to provoking the crowd that participated in the violent attack on the U.S. Capitol that occurred after the rally. 
 
A Notice of Disciplinary Charges filed by OCTC contains only allegations of professional misconduct. The licensee is presumed to be innocent of any misconduct warranting discipline until the charges have been proven. 

The State Bar Court of California is the only independent court in the U.S. dedicated solely to attorney discipline. Attorney discipline matters are investigated and prosecuted by OCTC, acting on behalf of the public. The State Bar Court oversees disciplinary proceedings and adjudicates charges filed by OCTC. The court rules on whether OCTC has proved charges of professional misconduct by clear and convincing evidence and may recommend that an attorney be suspended or disbarred.  

State Bar proceedings include a legal requirement during the prefiling period to provide respondents with a “fair, adequate and reasonable opportunity to deny or explain the matters” which will be the subject of any charges, and, prior to the filing of disciplinary charges, respondents have the “right to request an Early Neutral Evaluation Conference” before a State Bar Court hearing judge.  

If a disciplinary ruling involves disbarment or suspension, the State Bar Court’s recommendation is transmitted to the California Supreme Court, which determines whether to impose the recommended discipline. See rule 9.18, California Rules of Court. 

You can search more extensive State Bar Court records and documents related to this case, or any attorney discipline matters, using the court’s Case Search feature. Input either the case number or attorney’s name (last, first middle).  

The Public Trust: Administrative Legitimacy and Democratic Lawmaking by Katharine Jackson :: SSRN

The Public Trust: Administrative Legitimacy and Democratic Lawmaking by Katharine Jackson :: SSRN

The Public Trust: Administrative Legitimacy and Democratic Lawmaking

80 Pages Posted: 19 Sep 2022 Last revised: 30 Jan 2023

Katharine Jackson

University of Dayton School of Law; UVA, Program in Political Philosophy, Policy & Law; Columbia University

Date Written: September 5, 2022

Abstract

This Article argues that recent U.S. Supreme Court decisions invalidating agency policymaking based upon the major questions doctrine rely on a normatively and empirically mistaken notion of democratic popular sovereignty. Namely, they rely upon a transmission belt model that runs like this: democracy is vindicated by first translating and aggregating voter preferences through elections. Then, the popular will is transposed by members of Congress into the statute books. Finally, the popular will (now codified), is applied mechanically by administrative agencies who should merely “fill in the details” using their neutral, technical expertise. So long as statutes lay down sufficiently “intelligible principle[s]” that permit their application without significant discretionary remainder, regulation will carry democratic legitimacy because they who will the ends – the people – will the means.

In addition to a variety of empirical objections, the model carries several unsavory undemocratic implications: e.g., a Schmittian repression of social difference and an abdication of lawmaking authority to judges.

The Article suggests that models of democratic political representation serve as better criteria to assess agency legitimacy because they recognize and take advantage of the institutional mediation of democratic input and social conflict. They recognize, unlike pluralist, deliberative and transmission belt theories of democracy, that there will always be a gap between ruler and ruled and that there will always be an official making decisions that people may not like.

The Article then argues that administrative agencies themselves can serve as democratic representatives because they (1) incorporate citizen presence in their decision-making while (2) preserving the normative priority of the citizen. The Article revitalizes the oft-maligned trustee model of representation as an evaluative standard. Agencies' historical commitment to an inclusive notion of the public good, as well as their dedication to the public interest (qua beneficiary) over the often partial and self-serving commands of elected officials and powerful lobbyists (qua authorizers), make the trustee model an attractive starting point. With some democratic modifications that account for deliberation and debate about the meaning of the public good, the trustee model shows why agency decision-making has some strong democratic credentials. The Article concludes by offering some modifications to the legal doctrine used by courts to assess the legitimacy of agency action, to interpret agencies’ organic statutes, and shape the Presidential removal power.

The Fight Over Abortion Pills Is The Fight Over The Post-Dobbs World //Talking Points Memo

The Fight Over Abortion Pills Is The Fight Over The Post-Dobbs World

By Kate Riga // Talking Points Memo

Though the anti-abortion movement notched a historic victory in the overturning of Roe v. Wade, it now faces a landscape where the medications collectively known as “the abortion pill” are increasingly accessible. 

Partially, that’s thanks to the Biden administration lifting some of the restrictions on mifepristone, the first medication in the combo, a policy move that supporters of abortion access have clamored for for years. This week, marking Roe’s would-be 50-year anniversary, President Joe Biden signed a memorandum pledging to continue to protect and expand access to the drug, reminding readers that the Food and Drug Administration (FDA) will continue to allow mifepristone to be prescribed via telehealth and delivered through the mail, and to be dispensed at certified pharmacies. 

Since its approval by the FDA, mifepristone has been subject to unusually intensive regulation. It became, and still is, subject to Risk Evaluation and Mitigation Strategies (REMS), a program meant to control the distribution and use of drugs with significant safety concerns. Drugs under REMS include fentanyl and other opioids. 

Major medical organizations have long called for mifepristone’s inclusion in REMS to be lifted entirely, arguing that the restrictions are much more political than they are grounded in science. Misoprostol, the second drug usually prescribed to induce an abortion, is primarily used to treat ulcers and thus is much less stigmatized. 

The use of medical versus surgical abortions has been climbing for years, with the CDC reporting a 154 percent increase from 2011 to 2020. It’s easy to understand why: the FDA has approved the pills’ use for up to 10 weeks into a pregnancy, including much of the first trimester when, as of 2020, 93 percent of abortions occur. It’s less invasive than the surgical process, and often cheaper. Now that patients can pick up the medication at certain pharmacies or get them mailed, they can take the pills in the comfort of their own home. 

California Bar Moves To Nix Eastman’s Attorney License

Schadenfreude.

California Bar Moves To Nix Eastman’s Attorney License

GenBioPro challenges West Virginia ban on FDA Approved drug to terminate pregnancy

States allowing abortion via telehealth

Update: Pam Belluck reports in the New York Times today on the GenBioPro suit and other  post-Dobbs cases in North Carolina and Texas, the latter an initiative by anti-abortion groups. -gwc 1/26/23

GenBioPro, Inc. v. Sorsaia et al, Docket No. 3:23-cv-00058 (S.D. W. Va. Jan 25, 2023), Court Docket 

 GenBioPro - a pharmaceutical manufacturer - has challenged West Virginia's ban on the long-approved pregnancy termination drug mifepristone, a generic.

The post-Dobbs scenario painted by the Pew Trust, and developed by Drexel law professor David S. Cohen is beginning to be fleshed out.  Interstate shipment and local dispensation of mifestiprol (fka Ru 46) As he projected in The New Abortion Battleground  destined for the pages of the Columbia Law Review.

 Since 2000 the drug mifepristone has been approved by the FDA for termination of pregnancy and other medical uses.  After long experience and regular statutorily mandated review the FDA on January 3, 2023, FDA updated the safety elements to enable patients to receive it through certified pharmacies.

GenBioPro alleges that despite the comprehensive federal statutory and regulatory regime, which carefully balances patient access and safety, West Virginia officials banned mifepristone. The doctrine of federal preemption, grounded in the Supremacy clause has been used to bar design defect tort actions against medical devices that have undergone full FDA pre-marketing review Medtronic v. Lohr], 518 US 470 (1996) and vaccines injury due to which there is a comprehensive federal compensation program.  Bruesewitz v. Wyeth LLC, 562 U.S. 223 (2011).  The courts will have to decide whether the state criminal law is similarly pre-empted.

In  Dobbs v. Jackson Women's Health case Samuel Alito strongly suggested sympathy for the argument that a fetus is a person entitled to protection at every stage of life.  That was strongly urged by Notre Dame philosopher and law professor John Finnis.  He and Robert George - another arch Catholic conservative - submitted an amicus brief to the Supreme Court which argued that a fetus is a person entitled to protection under the 14th Amendment.  A state that grounds its law on such a principle would find warm reception on the high court where sits  Neil Gorsuch , a former doctoral student of Finnis.

In Cruikshank v. United States (1976) the Supreme Court vacated federal murder convictions of white militiamen who slaughtered Black defenders of a County courthouse in Louisiana.  It was state business only, the court held.  Until the Emmett Till  Anti-lynching Act passed in 2022 the Cruikshank case tied the hands of the national government as thousands of people - principally Black - were lynched, in vigilante actions.  Cruikshank  could lead today's judges to abjure preemption of a state murder law.

The Genpro complaint - filed in West Virginia' southern District - alleges that "n September 2022, 

in the wake of the Supreme Court’s holding in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022), West Virginia’s Legislature enacted the Unborn Child Protection Act (the “Criminal Abortion Ban” or the “Ban”). This law prohibits abortion in almost all cases, at any stage of pregnancy. W. Va. Code § 16-2R-1 et seq.; id. § 61-2-8. The Criminal Abortion Ban severely constricted the market for mifepristone statewide.

The State had already burdened exercise of the right to abortion which Dobbs terminated.  Genpro further alleges that 

Even before the Ban took effect, West Virginia law restricted the provision of mifepristone. See id. §§ 16-2I-2 (requiring a waiting period and counseling before an abortion procedure); 30-3-13a(g)(5) (prohibiting providers from prescribing mifepristone via telemedicine); see also id. § 30-1-26(b)(9) (providing for a rule banning prescribing mifepristone via telemedicine).

The complaint further alleges that 

settled preemption and Commerce Clause principles govern states’ efforts to restrictaccess to an FDA-approved medication. The Supreme Court’s decision in Dobbs did not displace Congress’s and FDA’s roles in protecting the public health by deciding whether drugs are safe and effective, determining which precautions — if any — are necessary to ensure a drug’s safe use, and ensuring safe and effective drugs are available to the public. Dobbs addressed only the underlying personal constitutional privacy right as it pertains to abortion; it did not speak to federal law regulating a drug maker’s sale and distribution of, or a patient’s access to, medication that is FDA-approved for distribution nationwide.

Genpro alleges This Court has jurisdiction and equitable power to enjoin actions by state officials that are preempted by federal law. But just as a gun may be lawfully purchased the use to which it is put may be nlaful.

According to the Bloomberg News report  todayWest Virginia Attorney General Patrick Morrisey, a Republican, said in a statement Wednesday that his office is “prepared to defend West Virginia’s new abortion law to the fullest.”

“While it may not sit well with manufacturers of abortion drugs, the U.S. Supreme Court has made it clear that regulating abortion is a state issue,” he said. “I will stand strong for the life of the unborn and will not relent in our defense of this clearly constitutional law.”

Bloomberg Law further reports:

Legal observers say the Biden administration could do more to back the position that FDA preemptions beat state law. Attorney Merrick Garland has said that states can’t ban mifepristone based on disagreements with FDA calls on efficacy and safety, though several states have limits on the drug.

A physician in North Carolina is making the federal preemption argument in another lawsuit filed Wednesday. The complaint in the US District Court for the Middle District of North Carolina challenges the state’s restrictions on mifepristone, including that the drug be dispensed in person by a physician following an ultrasound.

In January, the FDA announced pharmacies could get certified to dispense mifepristone, upping the stakes in the ongoing battle between the administration and states.

In addition, President Joe Biden on Jan. 22 issued a memorandum directing a trio of Cabinet members to consider new guidance to protect access to mifepristone.

- GWC  1/25/2023

Dobbs created uncertainty/ Dahlia Lithwick/ SLATE

Supreme Court leaker: the chaos at the court right now has a clear message. https://slate.com/news-and-politics/2023/01/roe-anniversary-politics-power-amidst-uncertainty.html?utm_medium=social&utm_campaign=traffic&utm_source=article&utm_content=web_share

Abortion Cases Take Originalism Debate to the States

Abortion Cases Take Originalism Debate to the States: In striking down an abortion ban in South Carolina and upholding one in Idaho, state high courts are grappling with the use of history in constitutional interpretation.

Supreme Court decision creates confusion over which firearm restrictions are constitutional - ABC News

The New York Rifle and Pistol Clubs v. Bruen [New York State] decision was "monumental" for gun rights and gave them a lot of key victories in the last few months, Alan Gottlieb, the executive director of the Second Amendment Foundation, told ABC News in an interview.

"We've knocked out some laws in California, we've got restraining orders against some of the ones in New York, we just got the temporary restraining order against the one in New Jersey," Gottlieb said.  

Supreme Court decision creates confusion over which firearm restrictions are constitutional - ABC News

  ByNadine El-Bawab

The shock to the system is that the United States Supreme Court - which has neither force nor funds, only judgment - has ordered 6-3 New York to stop using a law it has taken as fundamental.  Known as the Taylor Law, New York has required anyone who seeks permission to carry a gun to show a need - occupational or personal.

But now six members of the Supreme Court of the United States have embraced the declaration of Senior Justice Clarence Thomas that 

Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

At the heart of the decision is this a repudiation of the sort of weighing and balancing: 

Despite the popularity of this two-step approach, it is one step too many. Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support applying meansend scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.  

9/11 Denialist and Insurrectionist Marjorie Taylor Greene Assigned to Homeland Security Committee | The New Republic

9/11 Denialist and Insurrectionist Marjorie Taylor Greene Assigned to Homeland Security Committee | The New Republic

Nearly two years ago, the House, including 11 Republicans, voted to strip Representative Marjorie Taylor Greene of her committee assignments just weeks into the Georgia freshman’s first term. The resolution followed Greene’s racist and antisemitic rhetoric; her parroting of conspiracy theories on the 2020 election, 9/11, and the 2018 Parkland shooting; and her repeated indications of support for fatal violence against Democrats.


Fast forward two years, Greene is now being elevated to the House Homeland Security Committee—despite having incited plenty of threats herself against the homeland.


Greene, a key provocateur of the rhetoric that led to the January 6 Capitol riot, had encouraged people in 2019 to “flood the Capitol” and resort to violence “if we have to.” Greene expressed support for executing Democrats, including Nancy Pelosi, Barack Obama, and Hillary Clinton. After announcing her run for Congress, she posted an image on Facebook of herself holding a gun next to images of Representatives Alexandria Ocasio-Cortez, Ilhan Omar, and Rashida Tlaib. “We need strong conservative Christians to go on the offense against these socialists who want to rip our country apart,” she wrote in the caption.


Insofar as Greene displays any “concern” for protecting the homeland, it nearly always consists of racist fearmongering and lies. “They want to conquer America, and we’re not going to do it,” Greene previously said about Muslims. “We don’t need gun control! We need Muslim control!” a 2018 comment read on Facebook. Greene liked it.

In 2018, Greene wrote a theory that California’s deadly wildfires were a result of space lasers possibly controlled by the Rothschild investment bank. Greene also called George Soros—a businessman, philanthropist, and notable Democratic donor—a “Nazi” and “a piece of crap that turned in his own people over to the Nazis.” Soros is a Holocaust survivor.

Tom Roberts: Hierarchy's sacramental betrayal in abuse scandal obstructs synodality | National Catholic Reporter

Hierarchy's sacramental betrayal in abuse scandal obstructs synodality | National Catholic Reporter

By Tom Roberts 

It was in late spring, 1985, when I received a call from NCR's then-editor Tom Fox. I think he said he hoped I was sitting down.

Fox and I often exchanged calls when we thought that one of our publications had something of interest for the other. At the time, I was news editor of what was then called Religious News Service, headquartered on a floor in the former Jesuit residence at 56th Street and Sixth Avenue in New York.

I was sitting at my desk when he told me that NCR's next edition would contain an extensive and rather explosive report detailing the abuse of children by Catholic priests and the failure of hierarchy to do anything about it.

That conversation was a jarring introduction to corruption and evil that continue to reverberate to this day. That first national story to be published about the scandal was extensive, detailed, and the accompanying editors' commentary saw far into the future.

Members of the hierarchy appear not to realize the depth to which the effects of the scandal have seeped into every level of the institution. If they did, they would be acting far differently.

TWEET THIS

What I eventually came to understand about the scandal affected not only my career (I landed at NCR in 1994) and how I would spend my time in the world of religion reporting. It would also ultimately place in question much of what I knew and understood about the church.

What transpired regarding the scandal in the more than 35 years since that phone conversation continues to be the dominant lens through which I view developments in the church, including the synodal process underway. I agree with theologian Massimo Faggioli and Jesuit Fr. Hans Zollner, who wrote recently in this space: "It must be understood that the chances of the synodal process that will soon begin its continental phase are closely tied to what the Catholic Church is doing and not doing on the abuse crisis. It's about the abuse crisis even when it's not explicitly about the abuse crisis."

Members of the hierarchy (there are exceptions, but they are few) appear not to realize the depth to which the effects of the scandal have seeped into every level of the institution. If they did, they would be acting far differently. They resemble addicts, clinging to old perks and privileges of a secretive culture, as well as to former notions of superiority and a magically acquired otherness.

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The abuse crisis should be the center of the pope's ongoing synodal process | National Catholic Reporter

The abuse crisis should be the center of the pope's ongoing synodal process | National Catholic Reporter

By Massimo Faggioli @massimofaggioli and Hans Zollner @hans_zollner

As American Jesuit historian Fr. John O'Malley wrote in one of his last articles published in America magazine last February, the history of synodality is older than you think. There are different phases in the history of the synodal institution and way to govern the church: from the very early church to the medieval times to early modern Catholicism. The current phase is part of what Vatican II had in mind for church reform: a mix of aggiornamento (or updating in light of new issues) and of ressourcement (taking a fresh look at the ancient sources of the Christian tradition).

At the same time, the current synodal process initiated by Pope Francis' pontificate cannot be understood outside of the epoch-changing abuse crisis in the Catholic Church, one of the "signs of the times" the pastoral constitution Gaudium et Spes of Vatican II talks about: "the Church has always had the duty of scrutinizing the signs of the times and of interpreting them in the light of the Gospel." The fact is that now it is no longer the church scrutinizing the signs of the times in the light of the Gospel. It is also the signs of the times — beginning with the voices of victims and survivors of abuse — scrutinizing the church in the light of the Gospel. 

It has become evident that it is no longer an option to ignore, dismiss, belittle, or remain bystanders with regard to cases of abuse, especially in the church. Abuse of any type — sexual, spiritual, abuse of power and/or authority — blatantly contradicts the fundamental dignity of every human being. This recognition of the terror of abuse is part of a long-term process of knowing and understanding at a sociocultural and political level (public opinion, legislation, the justice system), but also at the communal level as Catholic community (which is much larger than just the number of those who after baptism participate sacramentally in the life of the church). 

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Rapid Responses to Major Questions | The Regulatory Review

Rapid Responses to Major Questions | The Regulatory Review

The U.S. Supreme Court’s major questions doctrine has received a significant amount of both praise and criticism. Although some commentators praise the doctrine as a necessary pushback against executive “power grabs,” others scold it as a “deregulatory cudgel.” But no matter what one thinks of its merits, with the Court’s conservative 6-3 supermajority, the doctrine is here to stay.

Accordingly, scholars such as Christopher J. Walker of the University of Michigan Law School are now asking how best to integrate the doctrine into the system of government. In his recent article, Walker argues that Congress should adopt a new streamlined legislative process that would bypass some of the major obstacles to new legislation. As a result, this new procedure would allow lawmakers to respond swiftly to judicial decisions that invalidate agency rules under the major questions doctrine.

Walker contends that, in doing so, the legislative branch could mitigate the doctrine’s deregulatory effect and encourage Congress to become the decision maker on major policy questions that the Court envisions it to be.

In a series of decisions and most explicitly in West Virginia v. EPA, the U.S. Supreme Court introduced the major questions doctrine to the judicial mainstream. According to this doctrine, in matters with major political or economic significance, an agency can only claim the necessary delegation of rulemaking power if it has a “clear congressional authorization.”

Walker notes that agencies often will not be able to rely on textually broad statutory delegations when they wish to respond to urgent regulatory issues. As a result, many legal scholars expect that the major questions doctrine will significantly limit the federal agencies’ regulatory authority.

Walker points out that this immediate deregulatory effect is not necessarily the only outcome of the new doctrine. By requesting more specific delegations, the U.S. Supreme Court also calls on Congress to make the major policy decisions on its own instead of outsourcing them to the executive branch. He explains that Congress, however, will only be able to assume this role as a more active decision maker if it is capable of passing new legislation more readily.

Walker argues that currently this is not the case because of the many obstacles in the legislative procedure. “Vetogates,” such as the U.S. Senate’s filibuster, essentially require a “supermajority” to pass legislation. Lawmaking has become very time-consuming and difficult.

Walker proposes that Congress should create a new fast-track legislative procedure that would be applied if the courts invalidate administrative rules on the basis of the major questions doctrine. He sees this new concept as allowing Congress to respond quickly, empowering it to make more major policy decisions while it also lessens the deregulatory effect.

In Walker’s envisioned bill, instead of disapproving a new rule, Congress would authorize the agency to enact either a recently invalidated rule or to implement a substantially similar regulatory action by amending the agency’s governing statute. In this way, Congress would delegate powers with the level of specificity that the U.S. Supreme Court asks for.

Why the Supreme Court Avoided Using Traditional Tools of Statutory Interpretation in West Virginia v. EPA, by Rachel Rothschild - Yale Journal on Regulation

NOTICE & COMMENT -Yale Journal on Regulation

Why the Supreme Court Avoided Using Traditional Tools of Statutory Interpretation in West Virginia v. EPA, by Rachel Rothschild

• January 12, 2023

 
 
 

Debates and scholarship over what the major questions doctrine is—and what it will mean for administrative law—have proliferated since the Supreme Court’s decisions in Alabama Realtors v. HHS, NFIB v. OSHA, and West Virginia v. EPA. The Association of American Law Schools (AALS) annual meeting last week was no exception, with multiple panels on the major questions doctrine. These included the Federalist Society’s annual faculty debate, moderated by my colleague Chris Walker. That conversation focused on whether the major questions doctrine is consistent with traditional tools of statutory interpretation and how the doctrine relates to constitutional values like the separation of powers and nondelegation, particularly in the West Virginia v. EPA case.

Yet none of the participants in these discussions paused to ask why the court might have chosen not to use traditional statutory interpretation tools to reach the same outcome. This has been an ongoing gap in conversations about West Virginia v. EPA since last summer, including among those who are critical of the decision and those who think the right outcome was reached but with the wrong analysis.

Answering this question is important. It is necessary to understand whether the doctrine—at least as the Supreme Court has thus far explained it—can possibly be squared with precedents like Chevron. It is also crucial for assessing how the doctrine might be deployed in future environmental and administrative law cases. So while I have many disagreements with the majority over how it ruled in this case and the arguments for a major questions doctrine more broadly, I will bite my tongue on these topics to simply address what may have been the court’s underlying motivation.

The majority’s decision to invoke the major questions doctrine, rather than use traditional tools of statutory interpretation, allowed the Justices to invalidate the Clean Power Plan without reviving federal nuisance lawsuits against fossil fuel companies—an outcome the court surely did not want. It’s difficult to know, of course, precisely what was in the minds of the Justices who signed onto the majority opinion. But this piece will explain why that result would have otherwise occurred and suggest how it may have influenced the majority’s use of the major questions doctrine.

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Court grapples with how to handle company’s lawsuit against union that went on strike - SCOTUSblog

Glacier Northwest v. Teamsters  Local 174 No. 21-1449 was argued last week before the Supreme Court.  The Local union went on strike against concrete supplier Glacier Northwest.  They workers left cement mixer trucks running at the company's yard.  But without workers to deliver the concrete the company had to pump out the trucks and discard the wet cement.  The employer cried foul for destruction of property. No said a Washington State local judge.  It's a subject of labor law. The Washington Supreme Court affirmed saying the matter belonged before the National Labor Relations Board.  The Supreme Court will soon decide.

Is it a federal question under the National Labor Relations Act  which protects the right to strike and preempts state law? Or is it a traditional intentional tort property damage case?

Is this like the spoiled vegetables that were an incidental consequence of a lawful strike ? Why did the Union do what they did?  Was there a strike deadline set and announced, in which case a jury might excuse the union.  Or a "wildcat" strike which could look quite different.  

This case has the kind of facts that state court juries decide in  intentional tort cases  every day, and have for centuries.

I expect that the case will be remanded to [state or federal court] to decide the state law property damage question.  The intentional tort, common law jury question is very appealing to the six "originalist"  Justices.

One Stone - Many Birds: a chip off the foundation of the administrative state.  Give it to a local jury, not a D.C. bureaucrat or Democrat, weaken trade unions which are fundamentally conspiracies in restraint of trade.

Will precedent restrain them?

- GWC 1/14/22

Court grapples with how to handle Glacier Northwest''s lawsuit against union that went on strike - SCOTUSblog

Tuesday’s argument in Glacier Northwest v. International Brotherhood of Teamsters provided little new insight into how the Supreme Court may decide the case. The justices from the conservative wing remained relatively quiet, allowing the three more liberal justices to dominate the argument. The issues that garnered most of the justices’ attention can be categorized under three topics: (1) what is the breadth of Garmon preemption; (2) what does it mean for striking workers to take “reasonable precautions” to prevent property damage; and (3) in what order should state courts and the National Labor Relations Board make findings regarding strike conduct when a tort action has been filed.

To recap briefly, this case concerns whether the Washington Supreme Court properly dismissed a tort action by Glacier Northwest, a concrete mixing company, arising out of a strike by the Teamsters. The company alleged that the Teamsters purposely timed their strike to inflict harm on the company and should be liable for any costs associated with the hardening of cement that was loaded into the mixers before the strike commenced. The state court, in dismissing the lawsuit, held that the NLRB should go first in assessing whether the National Labor Relations Act protected the strike conduct.

Darin Dalmat argues for the Teamsters. (William Hennessy)

By Sharon Block

Tuesday’s argument [12/10.23] in Glacier Northwest v. International Brotherhood of Teamsters provided little new insight into how the Supreme Court may decide the case. The justices from the conservative wing remained relatively quiet, allowing the three more liberal justices to dominate the argument. The issues that garnered most of the justices’ attention can be categorized under three topics: (1) what is the breadth of Garmon preemption; (2) what does it mean for striking workers to take “reasonable precautions” to prevent property damage; and (3) in what order should state courts and the National Labor Relations Board make findings regarding strike conduct when a tort action has been filed.

The first area of discussion in the argument centered around what test the Supreme Court should apply in determining whether the state court action can proceed. Put another way, when is state court action related to a labor dispute preempted by federal labor law? This type of preemption is referred to as “Garmonpreemption,” after the Supreme Court case that first articulated the standard. Justice Clarence Thomas probed whether Garmon is “normal” preemption or something more expansive. He asked both sides whether there is any precedent or statutory hook for treating Garmon preemption as imposing greater limitations on state court action than the limitations imposed by other federal regulatory regimes. Justice Neil Gorsuch phrased a similar inquiry as determining how far the “penumbra” of Garmon preemption extends – is it a “medium” or “huge” penumbra?

The next area of discussion the court focused on was how to define what type of strike conduct would remove the activity from even the arguable protection of the National Labor Relations Act. Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson pressed both the company and union lawyers on whether and how to draw a line between conduct that damages an employer’s goods and that which damages the employer’s equipment and premises. These justices seemed to be searching for a way to make a clearer distinction than the current articulation of the standard that says that unions must take “reasonable precautions” to prevent property damage in order to retain protection of the NLRA. They possibly are looking for a way to establish more clearly that damage to perishable items that happens merely as a consequence of the cessation of work is safe from tort liability, while activity that approximates vandalism – permanent harm to the company’s physical plant and equipment – is not. Chief Justice John Roberts offered a hypothetical to test this distinction. He asked whether the union was arguing that it would be okay for dairy workers to allow milk to spoil but it wouldn’t be okay for them to shoot the cows.

Vivek Suri argues for the United States as amicus curiae. (William Hennessy)

The final area that attracted the court’s attention was nailing down the parties’ views on who should decide what and in what order. Thomas asked the company why it wasn’t okay to allow the state court to take up the tort case after a “jurisdictional hiatus,” during which the NLRB could make findings about whether the strike conduct was protected under the NLRA. Several justices asked about the consequences of the state court and the NLRB coming to different conclusions about the facts or the law. Kagan asked Noel Francisco, representing the company, what if the state court goes first and “gets it wrong.” Without hesitation, Francisco responded that “state courts get it wrong all the time” and parties then appeal to the Supreme Court. Sotomayor questioned whether such an outcome would render the NLRB’s adjudication irrelevant. Jackson raised congressional intent – she offered that, by creating an agency with labor expertise, wasn’t it fair to assume that Congress wanted the board to take a primary role in figuring out questions like the one before the court.