Tag: SCOTUS

Climate Change: What Would Kavanaugh Do?

In a 2012 dissent from a District of Columbia Appellate Court opinion, Supreme Court nominee Brett Kavanaugh acknowledged that “dealing with global warming is urgent and important” but that any sweeping regulatory program would require an act of Congress:

But as in so many cases, the question here is: Who Decides? The short answer is that Congress (with the President) sets the policy through statutes, agencies implement that policy within statutory limits, and courts in justiciable cases ensure that agencies stay within the statutory limits set by Congress.

Here he sounds much like the late justice Antonin Scalia, speaking for the majority in the 2014 case Utility Air Regulatory Group v. EPA:

When an agency claims to discover in a long-extant statute an unheralded power to regulate “a significant portion of the American economy” we [the Court] typically greet its announcement with a measure of skepticism.  We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast “economic and political significance.”

Scalia held this opinion so strongly that, in his last public judicial act, he wrote the order (passed 5-4) to stay the Obama Administration’s sweeping “Clean Power Plan.” Such actions occur when it appears the court is likely to vote in a similar fashion in a related case.

This all devolves to the 2007 landmark ruling, 5-4, in Massachusetts v. EPA, that the EPA indeed was empowered by the 1990 Clean Air Act Amendments to regulate emissions of carbon dioxide if the agency found that they endangered human health and welfare (which they subsequently did, in 2009). Justice Kennedy, Kavanaugh’s predecessor, voted with the majority.

Will Kavanaugh have a chance to reverse that vote? That depends on what the new Acting Administrator of the EPA plans to do about carbon dioxide emissions. If the agency simply stops any regulation of carbon dioxide, there will surely be some type of petition to compel the agency to continue regulation because of the 2009 endangerment finding. Alternatively, those already opposed to it might petition based upon the notion that the science has changed markedly since 2009, with increasing evidence that the computer models that were the sole basis for the finding have demonstrably overestimated warming in the current era. It’s also possible that Congress could compel EPA to reconsider its finding, and that a watered-down version might find itself at the center of a court-adjudicated policy fight.

Whatever happens, though, it is clear that Brett Kavanaugh clearly prefers Congressional statutes to agency fiat. Assuming that he is confirmed, he will surely exert his presence and preferences on the Court, including that global warming is “urgent and important,” but it is the job of Congress to define the regulatory statutes.

Why Judicial Independence Matters

Late yesterday The Hill posted a short op-ed I wrote on President Trump’s nomination of Judge Neil Gorsuch to fill the seat of the late Justice Antonin Scalia. As often happens, a couple of editorial changes, especially in the title, muted somewhat the central point of the piece. But even were that not so, that point is worth further attention.

It concerns judicial independence. As I wrote, facing a nominee with impeccable qualifications, Democrats are now crafting an indirect assault against Judge Gorsuch. Thus, they’re pointing to the president’s outrageous attacks on the judiciary, among other things he’s said, and contending that he’s imposed a “litmus test” on the nominee. So they’re demanding that Judge Gorsuch “very explicitly and directly” disavow the president’s remarks, which he has already done respectfully, but in addition that he “very specifically” make his own policy views known in the upcoming confirmation hearings (which we’ve just learned will begin on March 20).

Coming to Mr. Trump’s Aid in the Matter of Judicial Selection

An article cited in the Cato Clips late yesterday caught my eye: “Libertarian Judicial Activism Isn’t What the Courts Need.” Written by Texas attorney Mark Pulliam, a sometime contributor to such libertarian publications as Reason and The Freeman, among others, it was posted at a site called “Southeastern Texas Record” and a day earlier at “American Greatness” (I leave it to the reader to discern what that site is about). The title speaks for itself. As the first named target of the piece, I’m given to respond, briefly.  Others, in order of appearance, are Randy Barnett, Clark Neily, Ilya Shapiro, Kermit Roosevelt III, Dick Carpenter, Anthony Sanders, and, by implication (their book, The Dirty Dozen, is cited), Bob Levy and Chip Mellor—a veritable rogues gallery of libertarian legal scholars.

Could we all be wrong? Apparently so. We’ve “devised a novel theory that the Constitution, properly understood, protects a person’s ‘right to do those acts which do not harm others,’” Pulliam argues, “enforceable against the federal government and the states,” and “it is only judges who get to decide whether a particular law is justified constitutionally.” What’s worse, we’re urging President-elect Trump to appoint adherents of this “fanciful theory” to the Court.

Government Shouldn’t Retaliate Against Politically Active Citizens

The First Amendment guarantees the right to speak freely without fear of official retribution. One aspect of this right is that a government agency may not punish someone for speaking out, supporting a candidate, or running in an election. Allowing such retribution would be to allow the government to extort citizens into supporting a particular political orthodoxy.

But such extortion is exactly what happened in Nebraska. Robert Bennie, a financial advisor, became active in the Tea Party movement in 2010. Before then, he had never received any disciplinary action from the Nebraska Department of Banking and Finance, a regulatory agency that monitors brokerage advertisements for compliance with financial regulations. After Bennie became politically active, the Department suddenly began a campaign of investigations and threatening letters, despite the fact that Bennie remained fully compliant with all regulations.

Suspecting that these developments were retaliation for his political stands, Bennie sued the Department. Both the district court and the U.S. Court of Appeals for the Eighth Circuit agreed with Bennie that the government took an adverse action against him that was motivated in part by his First-Amendment-protected speech. And yet the courts nonetheless denied Bennie any relief, imposing yet another hurdle: the “ordinary firmness” test.

A Constitutional Amendment to Re-Empower the States

When the Framers designed our federalist system, they assumed that the federal government would be limited to those powers actually enumerated in the Constitution and that it would exercise those powers only when authorized by statute. Further, to give the states some say in the drafting of these statutes, one half of the federal Congress—the Senate—was elected by the state legislatures themselves and designed to reflect the interests of the state governments.

Today, none of these elements of our original design remain. The Supreme Court has allowed the federal government to control nearly limitless activities, supposedly as an exercise of its power to regulate interstate commerce. The executive branch acts as its own de facto legislative branch, “interpreting” statutes through executive actions and agency rulemaking to unilaterally give itself the powers it wishes to exercise. And after the passage of the Seventeenth Amendment, senators are now elected by popular vote, meaning there is no longer any direct link between the state and federal governments. The result of these three changes is that states have less power than ever – and there’s not much they can do about it.

To solve that problem, Representatives Rob Bishop (R-UT) and Cathy McMorris Rodgers (R-WA) recently introduced the “Re-Empowerment of the States Amendment,” a proposal that would allow two thirds of the state legislatures to repeal any “Presidential Executive order, rule, regulation, other regulatory action, or administrative ruling issued by a department, agency, or instrumentality of the United States.”

Importantly, this amendment would not allow states to repeal the text of statutes that have duly passed both houses of Congress. This isn’t an amendment to change the system of bicameralism that the Framers designed; instead, it’s an amendment to restore the checks on the executive branch that existed before the massive expansion of the administrative state. As the amendment’s creator David Hemingway has explained, “The practical result would be to enhance the power of Congress since it would encourage the president to work with Congress rather than govern by issuing executive orders.”

Against Judicial Restraint

That’s the provocative title of my new essay in National Affairs, out this week. I’m mostly addressing conservatives who believe that judges ought to be “restrained,” as opposed the in contradistinction to the “liberal judicial activism” of the Supreme Court in the 1960s and ’70s. It’s puzzling that the attack would be that judges should have a bias towards inaction, towards sitting on their hands, when it’s precisely this deference to the political branches that allowed progressives to rewrite the Constitution during the New Deal. As I explain:

Under the founders’ Constitution, under which the country lived for its first 150 years, the Supreme Court hardly ever had to strike down a law. The Congressional Record of the 18th and 19th centuries shows a Congress discussing whether legislation was constitutional much more than whether it was a good idea. Debates focused on whether something was genuinely for the general welfare or whether it served only a particular state or locality. “Do we have the power to do this?” was the central issue with any aspect of public policy… .

The Fourth Amendment Protects Your Cell-Location Data

When the federal district court in D.C. ordered a seizure of Alonzo Marlow’s cell service location information (CSLI) held by his cell provider, it held that the federal government didn’t need a warrant to obtain CSLI data from a person’s phone provider. The Stored Communications Act of 1986 (SCA) governs the searching of such data, and under § 2703(d) of that act, federal investigators need not demonstrate probable cause in order to search—but merely to show “specific and articulable facts” that there is criminal wrongdoing. Thus, the Fourth Amendment requirement that “no warrants shall issue, but upon probable cause” is effectively removed.

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