The Supreme Court’s use of the major questions doctrine in West Virginia v. Environmental Protection Agency to invalidate the agency’s regulation of greenhouse gas emission has elicited widespread criticism from commentators. David Driesen’s contribution to this chorus of condemnation goes to the heart of the issue, focusing on the role that the Supreme Court has arrogated to itself in reaching this decision.
The Court’s based its decision on the relationship between Congress and the Executive, speaking at length about the structural roles of these two institutions. What it forgot, as Professor Driesen notes, is that the Court is also an institution, and that any ruling it issues about the powers of other institutions must take account its own exercise of power as well. This is, to some extent, your father’s jurisprudence, a basic insight of the Legal Process School that dominated public law scholarship in the decades following World War II. It often serves as a background consideration upon which flashier modern arguments can be built, but there is a crucial difference between assimilating an important insight and forgetting about it. The Court would be well advised to note Professor Driesen’s reminder.
His article begins by locating the major questions doctrine in the landscape of statutory interpretation. The doctrine is often viewed as an exception to Chevron deference. Chevron holds that the courts, when reviewing an agency’s implementation of a statute with ambiguous language, should not interpret the statute de novo, but rather defer to reasonable agency interpretations. There is at least some justification for denying such deference when a major question of public policy is at stake. As Professor Driesen points out, however, current use of the major questions doctrine involves statutes that unambiguously place an issue within the agency’s jurisdiction. Rather than a return to de novo interpretation, what the Court does in West Virginia is to ignore the plain meaning of the statute, along the lines advanced in Church of the Holy Trinity v. United States. That 1892 decision rejected the literal language of the statute on the basis of its title, its coordinate provisions, its structure, its legislative history and general policy considerations that seem out of date today (“this is a religious people”) but were not a bad way, at the time, to discern legislative purpose. The current Court bases its rejection of plain meaning, however, on its own dislike of regulation and the increased power of administrative agencies.
Congress enacts various statutes that rename federal buildings, establish historic sites or adjust the tariff on an exotic product, but its significant impact, and the focus of its legislative efforts, is, in fact, on major questions – in recent years, health care, protection from pandemics, the stability of the financial system, and climate change. These questions are also the focus of Congress’ ongoing interaction with the administrative agencies that implement the legislation, consisting of oversight hearings, annual appropriations, and continuous staff level contacts. Moreover, major questions involve matters that are necessarily complex; they require administrative expertise and members of Congress know this when the draft the statute. They are also matters that change and evolve over time as a result of changing circumstances. Professor Driesen points out that these are precisely the matters where the Supreme Court should hesitate to interject its own interpretation of the statute into the complex, evolving relationship between our two policy-based branches. Intervention of this sort does not enforce the separation of powers. Rather, it effaces the separation that should be maintained between these policy making bodies and the federal judiciary. That is particularly true when the Court is not interpreting the language of the relevant statute, but rather imposing its own idiosyncratic views.
Another overly familiar and thus readily forgotten insight of the Legal Process School is that judicial invalidation of a statute enacted by elected representatives is counter-majoritarian. This principle has aroused some skepticism when invoked to deny relief in human rights cases, but it should be understood as resting upon Carolene Products Footnote Four. That is, the Court can validly intervene, and is not being counter-majoritarian, when the political process itself is not majoritarian, either because all coalitions exclude a disparaged minority or because of defects in electoral procedures. In recent years, however, these are precisely the areas where the Court has refused to intervene, denying protection to criminal defendants, eviscerating the Voting Rights Act, and declaring partisan gerrymandering non-justiciable. As Professor Driesen argues, the Court’s most aggressive interventions have been taken against decisions that can be described as hyper-majoritarian. We can question whether technical or minor legislation (in the 117th Congress, for example, the Planning for Animal Wellness Act or the Artificial Intelligence Training for the Acquisition Workforce Act) ever attracts enough attention from anyone but special interest groups. Such statutes can only be characterized as majoritarian on an institutional basis; they were enacted by a representative legislature. But climate change, like health care costs, pandemic disease and financial stability, are the basic content of political debate in our nation. If any issues determine people’s votes, it is these. The specific issue at stake in West Virginia is an oncoming environmental catastrophe that may require abandonment of our coastal cities or the construction of trillion dollar sea walls, devastate American agriculture, kill millions of people in escalating heat waves or apocalyptic storms and endanger the stability of our political system in the process. Professor Driesen’s article properly admonishes the Court for constructing a clear statement rule, unsupported by any real constitutional concern, that takes decisions about this subject away from the people’s representatives and places it in the hands of a few judges with an instinctive but unjustified hostility to the governmental mechanism that gives us our best chance to avert the disaster.
The assertions and notions presented here are really baseless with all due respect. Fundamentally wrong.
And first, and generally speaking, there is greater principle than the so called separation of powers:
And it is, the rule of law. Every principle by the way, is relative one. But the rule of law ! No other principle can erode it. The proof (among others):
Well, despite separation of powers so called, the courts have power, to invalidate legislation.
And what is the law, only courts know and understand. No one else. Full stop! That was also the meaning of the founders. I quote from recent ruling, in the supreme court of Ohio (references omitted):
The idea that a court must defer to an agency determination is difficult to reconcile with these separation- of- powers concepts. When a court defers to an agency’s interpretation of the law, it hand to the executive branch the judicial authority “to say what the law is”. Mandatory deference also raises questions of judicial independence. I a case like this one, a court is charged with adjudicating a dispute between government agency and a private party. But how can the judiciary fairly decide the case when it turns over to one party conclusive authority to say what the law means? To do so would fly in the face of the foundational principle that “no man ought to be a judge in his own cause”.
End of quotation:
More specifically, in both cases presented here, it wasn’t about the interpretation of the court (let alone, personal one) but, the fact, the interpretation at issue (of the agencies) led to absurd. Was unreasonable. Couldn’t be reconciled with any method has to do with correct legal interpretation. In West Virginial that wasn’t the intent of Congress (” That discovery allowed it to adopt a regulatory program that Congress had conspicuously declined to enact itself “). In the case of ” Trinity” religion was totally marginal issue. But, the intent of Congress was different simply. Not to bar highly qualified employees (from coming to the US) but cheap labor. That was the evil Congress tried to fix, remedying and solving. In accordance with it, the interpretation should be construed.
Here to Ohio:
https://aboutblaw.com/6ey
Thanks
I appreciate Ed Rubin’s generous review. In response to El Roam, i don’t argue that the Court must defer to agencies. Instead, I argue that the Court must follow the plain, albeit sometimes general, language of statutes. And if the statute is unclear, it must resolve statutory ambiguity by reference to the goals and policies of the enacting Congress. The major questions doctrine embodies an “unjustified hostility” to statutes seeking to protect us from disasters, because its “clear statement rule” allows the Court to avoid following the policies in statutes it should interpret. What the Court did in West Virginia was antithetical to the rule of law. The idea that “only courts know and understand” the law suggests that only the lawyers who happen to become judges understand the law. That’s patently absurd.
David:
So David, you do agree, that sometimes status are unclear. And if so, the court must turn to the intent of lawmaker (the Congress). But, that is what has been done in both cases as illustrated by me. In both cases, the court turned to the intent of Congress, in order to resolve ambiguity etc…. So, what is or was the problem then ?
Protecting properly from disasters, then you should address your complaints to the legislator. Not courts. Let them legislate properly, with the right focus, and fix things. What is it that you wanted from courts and judges ?
With all due respect, you mix lawyers with judges. The fact that lawyers can become judges, doesn’t project necessarily on work of one judge:
First of all, not every lawyer, is suitable and competent for being judge. But above all:
One Lawyer(speaking of absurdities) represents one party. His job is to act totally subjectively. He must faithfully represent his client, and only him. While:
If you haven’t noticed, a judge must impartially adjudicate and solve controversies between both parties.
That is hell of difference. Because the law, is basically impartial (as the judge). Means:
You must be impartial in your job, in order to understand the law (or what law says) contrary to one lawyer of course. Lawyer who is stuck in tunnel view:
How to win the case, for his client. Full stop!
Thanks