The least dangerous branch?
The judiciary . . . has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment.” Federalist No. 78, Alexander Hamilton
In the 19th century the claim of infallibility was first made for a papal ex cathedra declaration. Such claims have turned out to be vanishingly rare. Catholic doctrine is said to develop through the Gospels, the teachings of the "magisterium" [the official organs of the Church particularly in Councils], and the experience of the faithful. The United States system has developed in similar ways. The Constitution itself - the product of compromise principally between slaveholding landowners and urban merchants - has come to be spoken of in reverential terms. Its first apologists - Hamilton, Jay, and Madison - the authors of the opinion pieces collected now as the Federalist papers - all [even Hamilton] held people in slavery. Their renunciations of monarchic power have become part of our national scripture.
The Supreme Court recently claimed that its demands for Congressional clarity in major questions cases “have arisen from all corners of the administrative state". Biden v. Nebraska, 2023 The colonial era founders' renunciation of monarchic power is now echoed in contemporary criticism of the Supreme Court as engaged in a new judicial power grab. The newly coined `major questions doctrine has been said by the odd couple of Cass Sunstein and Adrian Vermeule to be part of an attack on the very structure of the administrative state. Stanford's Mark Lemley in the Harvard Law Review labels it The Imperial Supreme Court. The Court, he says:
has taken significant, simultaneous steps to restrict the power of Congress, the administrative state, the states, and the lower federal courts. And it has done so using a variety of (often contradictory) interpretative methodologies. The common denominator across multiple opinions in the last two years is that they concentrate power in one place: the Supreme Court.Granted life tenure, their construal of the Constitution's limits reversable only by a practically unamendable Constitution, the United States Supreme Court is free to develop "doctrine" by decree. Seen as one of the boldest efforts in the Court's history, the "major questions doctrine" has drawn a tsunami of commentary. Formally declared by Chief Justice John Roberts in the June 2022 West Virginia v. EPA case. The "doctrine" places sharp limits on executive branch measures. It is asserted to be a vindication of Congressional power but is cloaked in a demand for "clarity" in legislative drafting.
FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 159–160.[treating nicotine as a drug and delivery device] See, e.g., Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___ [blocking Surgeon General and DHHS pandemic control eviction moratorium]; Utility Air Regulatory Group v. EPA, 573 U. S. 302, [limiting EPA permitting authority under Clean Air Act]; Gonzales v. Oregon, 546 U. S. 243 [barring A.G. interference with state authorized drug use for assisted suicide]; National Federation of Independent Business v. OSHA, 595 U. S. ___[voiding OSHA covid 19 vaccine or test mandate for large employers]. Under this body of law, known as the major questions doctrine, given both separation of powers principles and a practical understanding of legislative intent, the agency must point to “clear congressional authorization” for the authority it claims.
[Italicized material and emphasis added - GWC]
* Mila Sohoni in the Harvard Law Review includes in the cases she cites as a Quartet Biden v. Missouri which in which a 5-4 majority held per curiam 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. Thomas, Gorsuch, Barrett and Alito dissented.
Professor Sohoni sees the major questions doctrine's demand for legislative clarity as originating as an exception to Chevron deference to the expertise of agencies charged with enforcement. What are the obstacles to legislative clarity?
In Brown & Williamson the FDA's claim of authority to regulate tobacco was labeled extraordinary" , the Department of Education's waiver of student loans was said to be "staggering" and unprecedented use of statutory power to grant " “waivers and modifications” of debtors' obligations. . The Department of Labor's OSHA covid vaccine or test mandate for large employers was spurned in a 6-3 per curiam opinion:
“We expect Congress to speak clearly” if it wishes to assign to an executive agency decisions “of vast economic and political significance.” Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___ (2021) (per curiam) We sometimes call this the major questions doctrine. Gundy v. United States, 588 U. S. ___, ___ (2019) (GORSUCH, J., dissenting). OSHA’s mandate fails that doctrine’s test. emphasis added - GWC]
In NFIB v. OSHA the emergency temporary standard compelling large employers to impose a test or vaccinate was voided by the Supreme Court as an overbroad general public health standard not limited to hazards arising from the work. Yet the Occupational Health and Safety Administration [OSHA] is authorized by statute to issue emergency temporary standards if it
"determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.” 29 U.S.C. § 655(c)(1) (emph. supplied -gwc)
Does the "major questions doctrine" really vindicate and protect Congressional authority from an overreaching executive branch?
Does the Constitution''s Article II, Section 3 command that the President "take care that the Laws be faithfully executed" mean that absent explicit instruction the executive branch is bound to sit and wait? Even in emergency?
Whatever happened to judicial deference to measures to address epidemics of readily transmissible disease as in Jacobson v. Massachusetts (1907)?
Two Justification for the `MQD'
Despite the conservative super-majority's unanimous embrace of the label the six do not characterize the "doctrine" in the same way.
Cass Sunstein is a Harvard law professor. He served Barack Obama as leader of the Office of Information and Regulatory Affairs, and Biden as a strategist for immigration. In a new essay posted on SSRN- Two Justifications for the Major Questions Doctrine Sunstein contrasts the stances of Neil Gorsuch (concurring in West Virginia v. EPA) and Amy Barrett (concurring in Biden v. Nebraska]. The two Associate Justices - both beneficiaries of Donald Trump and Mitch McConnell - are firm adherents of the regulatory skepticism of the Federalist Society milieu.
A key divide in the justices rhetoric about the doctrine's moorings is that between Associate Justices Neil Gorsuch and Amy Barrett. Gorsuch grounds it in the Constitution and the inherent authority of the federal courts to police the boundaries of the fundamental charter's scheme of divided government. Barrett takes an apparently more conventional textualist linguistic approach.
Sunstein deploys two metaphors to characterize the divide in the two justices thinking. For Barrett - a self-proclaimed `textualist' a Wittgenstein linguistic interpretive canon is deployed to frame her babysitter hypothetical. For Gorsuch - whose Oxford doctoral mentor was Catholic natural law theorist John Finnis - a passage by 17th Century English philosopher John Locke is highlighted:
The first, most clearly developed by Justice Neil Gorsuch, involves the separation of powers. The basic idea is inspired by a particular understanding of John Locke, who wrote: The Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they, who have it, cannot pass it over to others. ... And when the People have said, We will submit to rules, and be govern'd by Laws made by such Men, and in such Forms, no Body else can say other Men shall make Laws for them; nor can the people be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorised to make Laws for them.
The theory behind the Gorsuch approach, Sunstein explains, is
"to ensure congressional primacy by avoiding a situation in which agencies exercise authority that the national legislature has not clearly granted them. On this view, the major questions doctrine is best understood as a nondelegation canon, akin to the presumption against retroactivity. Its apparently recent creation is a serious challenge for the view that it is a product of Article I’s Vesting Clause". (emph. added - gwc)
Article 1 provides "All legislative Powers herein granted shall be vested in a Congress of the United States," But Article II commands that "The executive power shall be vested in a President of the United States of America...[and that ] he shall take Care that the Laws be faithfully executed." Though the principle of congressional supremacy is plainly embraced, there is also a recognition that execution of the laws is not a merely mechanical function. That the laws be carefully and faithfully executed shows that judgment is required, not merely obedience. And a similar softness at the edge was surely intended for judges since the judicial power extended to both law and equity - as had the judges of the mother country - England.
The drafters of the original Constitution surely had in mind the Glorious Revolution of 1688" which did not strip the Crown of all authority but did establish parliamentary supremacy. England's "Constitution" is not a compact like ours, but rather is a set of laws so embedded that they are deemed foundational. There is no monarch's order or decree that cannot be overcome by an Act of Parliament.
But in our time our Supreme Court frequently disparages the agencies of the 'administrative state', themselves replacing the "unaccountable ministers" of the monarch against whom the `founding fathers' railed. Thus Gorsuch in his concurring opinion in WVA v. EPA cites the Federalist papers for the proposition that "All" legislative power be vested in the Congress
is vital because the framers believed that a republic—a thing of the people—would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable “ministers.” The Federalist No. 11, p. 85 (C. Rossiter ed. 1961) (A. Hamilton).
The rhetoric of the excessively esteemed "founders" was deployed against the remaining prerogatives of the Monarch who ruled over the unrepresented settler colonialists. The `Deep State' of administrative agencies replaces the King. The agencies must be able to point to “‘clear congressional authorization’” when they claim the power to make decisions of vast “‘economic and political significance.’
The discretion that Gorsuch would permit executive agencies to exert is narrow: "As Chief Justice Marshall put it, this means that “important subjects . . . must be entirely regulated by the legislature itself,” even if Congress may leave the Executive “to act under such general provisions to fill up the details.” People will doubtless differ about what constitutes a "detail" but "[p]ermitting Congress to divest its legislative power to the Executive Branch would “dash [this] whole scheme.”
Is Gorsuch's approach reasonably calculated to vindicate Congressional authority?
Does Gorsuch's approach threaten the ability of the executive branch to accomplish necessary protection of the general welfare?
Barrett on the Student Loan Case - Nebraska v. Biden
Justice Amy Barrett's concurring opinion in Biden v. Nebraska - a student loan forgiveness case, takes a softer tack. She acknowledges that the applications of the so called major questions doctrine "effectively impose a “clarity tax” on Congress by demanding that it speak unequivocally if it wants to accomplish certain ends.
The Biden administration's student loan forgiveness plan relied on the so-called HEROES Act. It provides at 20 U.S.C. 1082 (a)(6) that the Secretary of Education may "enforce, pay, compromise, waive, or release any right, title, claim, lien, or demand, however acquired, including any equity or any right of redemption."
Barrett, like then Fordham law professor Jed Shugerman , takes a textualist approach. Shugerman finds the Biden administration's interpretation of the HEROES Act as an emergency measure to be pretextual. Not a fair reading, but rather a post-pandemic stretch to fulfill a campaign promise on loan forgiveness.
Did the Biden administration overreach - go beyond its statutory authority - in order to deal with the economic consequences of the Covid-19 pandemic?
Barrett spurns the original public meaning approach. In a 2016 article co-authored (with her late colleague John Nagle), Congressional Originalism she asserted
Precedent poses a notoriously difficult problem for originalists. Some decisions thought inconsistent with the Constitution’s original public meaning are so well baked into government that reversing them would wreak havoc. Adherence to originalism arguably requires, for example, the dismantling of the administrative state, the invalidation of paper money, and the reversal of Brown v. Board of Education." (emph. added - gwc)
Pragmatism led her to textualism. But her more cautious embrace of the major public questions doctrine little conceals her fundamental hostility to the Roosevelt New Deal's social democratic approach to government that former IMF speech writer Tony Annett has labeled Cathonomics. Barrett's conservatism is less aggressive than is Gorsuch's. She takes a textualist, sub-constitutional approach which leads her to embrace every rejection of governmental authority.
As Sunstein points out, her baby-sitter metaphor is an exemplar of the approach of the Austrian philosopher of mathematics, mind, and language Ludwig Wittgenstein. He offered the following:
Someone says to me: "Shew the children a game." I teach them gaming with dice, and the other says "I didn't mean that sort of game." Must the exclusion of the game with dice have come before his mind when he gave me the order?
The answer to Wittgenstein's question is, of course, NO.
Thus Barrett argues that the newly coined doctrine:
serves as an interpretive tool reflecting “common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.” FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 133 (2000).
The major questions doctrine situates text in context, which is how textualists, like all interpreters, approach the task at hand.
To illustrate her point she offers, in Wittgenstein fashion, this hypothetical to show that context is relevant to delegation, as in the law of agency.
When an agent acts on behalf of a principal, she “has actual authority to take action designated or implied in the principal’s manifestations to the agent . . . as the agent reasonably understands [those] manifestations.” Restatement (Third) of Agency §2.02(1) (2005). Whether an agent’s understanding is reasonable depends on “[t]he context in which the principal and agent interact,” including their “[p]rior dealings,” industry “customs and usages,” and “the nature of the principal’s business or the principal’s personal situation.”
Consider a parent who hires a babysitter to watch her young children over the weekend. As she walks out the door, the parent hands the babysitter her credit card and says: “Make sure the kids have fun.” Emboldened, the babysitter takes the kids on a road trip to an amusement park, where they spend two days on rollercoasters and one night in a hotel. Was the babysitter’s trip consistent with the parent’s instruction? Maybe in a literal sense, because the instruction was open-ended. But was the trip consistent with a reasonable understanding of the parent’s instruction? Highly doubtful. In the normal course, permission to spend money on fun authorizes a babysitter to take children to the local ice cream parlor or movie theater, not on a multi-day excursion to an out-of-town amusement park.If a parent were willing to greenlight a trip that big, we would expect much more clarity than a general instruction to “make sure the kids have fun.
One wonders how far her metaphor carries her:
Because the Constitution vests Congress with “[a]ll legislative Powers,” Art. I, §1, a reasonable interpreter would expect it to make the big-time policy calls itself, rather than pawning them off to another branch. See West Virginia, 597 U. S., at ___ (slip op., at 19) (explaining that the major questions doctrine rests on “both separation of powers principles and a practical understanding of legislative intent”). (emph. supplied - GWC)
In NFIB v. Department of Labor and OSHA the issue is framed thus:
The Occupational Health and Safety Administration [OSHA] is authorized by statute to issue emergency temporary standards if it "determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.” 29 U.S.C. § 655(c)(1)
Does vesting all legislative power in one body, and charging another with the duty of faithful execution reasonably or necessarily lead to the inference that a Congress must always give "clear" instructions?
Did Congress in the Occupational Safety and Health Act "pawn off " its legislative duty via a non-specific authorization to deal with "new hazards" ?
Sunstein comments that the relative "neutrality of Justice Barrett’s approach is a point in its favor. It suggests that she is not wielding the major questions doctrine in what might be seen as a political or ideological manner -- or as a form of Lochnering" a commitment to dismantling the regulatory state.
We see, thus that though the six members of the Court's Federalist Society wing usually flock together they get to their common end points by different routes.
Sunstein offers a few challenges to Barrett's approach:
Is the example of the parent, instructing the babysitter, really analogous?
Is Congress like a parent, and is an agency like a babysitter? Might that example load some dice?
More concretely: What is the foundation of the “premise” that Congress intends to make major policy decisions itself?
What kind of “premise” is it? It sounds like an empirical claim. If so, is it true?
To Sunstein's queries I would add:
Is Barrett's linguistic and contextual method persuasive evidence of a non-ideological approach to the questions now before the Court, despite her joining the conservative majority on the issues of abortion, guns, EPA authority, and covid-19 mandates?
Why would originalism demand results so drastic as Barrett suggests?
- GWC
September 10, 2023
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