Justice Thomas Was Right Before and Wrong Now: Brand X and Chevron Should Not Be Overruled

by Michael C. Dorf

Dissenting from the denial of certiorari on Monday in Baldwin v. United States, Justice Thomas urged his colleagues to reconsider and overrule its 2005 decision in National Cable & Telecommunications Assn. v. Brand X Internet Services. Justice Thomas himself wrote the opinion for  the Court in Brand X. While he deserves praise for showing a willingness to change his mind, his dissent is wrongheaded. Justice Thomas was right in 2005 and wrong now.

Although the Baldwin cert petition targeted Brand X, the real quarry for Justice Thomas is the doctrine on which it relies: Chevron deference to agencies. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., permitted the Reagan administration EPA to apply a more lenient interpretation of the term "stationary source" in the Clean Air Act than had the Carter EPA on the ground that an agency's reasonable construction of an unclear statutory term is entitled to deference by reviewing courts. Brand X applied Chevron even in a context in which the prior contrary construction was given by a court rather than by the same agency under a different administration. Part II of Justice Thomas's dissent argues that even if Chevron is right, Brand X is wrong. In a follow-up column, I'll explain why he's mistaken about that. Today I want to focus on what he says about Chevron itself.

In his Baldwin dissent, Justice Thomas says that "Chevron is in serious tension with the Constitution, the APA, and over 100 years of judicial decisions." Here I'll address his extremely dubious constitutional arguments, because if he's wrong about them, then he offers only sub-constitutional grounds for overruling Chevron. I think those arguments are also weak, but even if the sub-constitutional grounds were more substantial, that would not warrant overruling. Chevron is ultimately a default rule of statutory interpretation, which Congress can change if it so chooses. There is no need for action by the Court that would unsettle decades of administrative law jurisprudence on which Congress and the agencies have relied. That's a step Congress can take, but if it doesn't, the Court shouldn't.

How Democrats Treat Sanders Now Will Define Them -- Perhaps Not Well

by Neil H. Buchanan

It is hardly news that the liberal establishment is absolutely freaking out about Bernie Sanders, just as it previously freaked out in an (apparently successful) effort to tear down Elizabeth Warren's candidacy last summer and fall.  Now that Sanders seems on the verge of locking up the Democratic Party's presidential nomination, things are truly getting weird at the top.

It is not as though things have been sane in the suites of Democratic influencers up until now.  Last April, I wrote two columns describing the group panic that had Democratic insiders making all kinds of scurrilous attacks on Sanders.  And even on a less panicked level, the so-called moderates (whose moderation nearly always manages to lean right on economic and foreign policy) have been deliberately maligning the progressive candidates' positions.

Thus, just a couple of weeks ago, the editors of The Washington Post wrote that "Sens. Bernie Sanders (I-Vt.) and Elizabeth Warren (Mass.) not only want to make sure that all Americans have access to health care, as do all the Democrats, but they want maximum government control in achieving that goal."  Even as jaded as I have become when reading self-identified centrist liberals' smug attacks on progressives, after reading that particular passage I found myself saying out loud (thankfully in an empty room): "Oh, f_ck you!!"

But that kind of casual red-baiting is not the worst of it, by any means.  And now that the party's guardians of the status quo are in the midst of a collective breakdown, it is useful to ask just how far they will go in attacking Sanders -- and where that will leave them if (most likely when) Sanders overcomes their opposition and wins the nomination.

The short version of this is that the anti-Sanders people have a choice of defining themselves as being either guardians of the rule of law or protectors of the "malefactors of great wealth" (in Theodore Roosevelt's immortal words).  Thus far, it is not looking good for the rule of law.

A Corrected Harvard Law Review Note Now Accurately Reflects the View of the Dorf/Koppelman/Volokh Brief in the Arkansas Anti-BDS-Law Case

by Michael C. Dorf

A recent Note in the Harvard Law Review (also available here as a pdf) argues that state laws banning boycotts of Israel (so-called anti-BDS laws) cannot fairly be justified by claiming that such boycotts involve illicit discrimination or antisemitism and that therefore they should not be characterized as anti-discrimination laws. I think I might agree with that core claim. After all, although some people who support the BDS movement are motivated by antisemitism, many simply oppose various policies of the Israeli government.

To be sure, some proponents of anti-BDS laws argue that participants in the BDS movement unfairly single out Israel. Why don't the proponents of BDS boycott Russia (which illegally occupies Ukrainian territory), China (which occupies Tibet and has sent over a million Muslims to reeducation camps), or other countries that violate human rights? The singleminded focus on Israel, BDS opponents say, bespeaks a bias.

How widespread is such a bias? Absent solid empirical evidence on that question, I think it is difficult to say whether anti-BDS legislation can be fairly characterized as a species of anti-discrimination law.

Nonetheless, as a policy matter, I oppose anti-BDS legislation and have previously stated that opposition in a blog post just under a year ago and another one that was posted both here and on the Volokh Conspiracy blog last June. Accordingly, I was surprised when I found that the original version of the Note described me and my co-signers of a brief in the Arkansas Anti-BDS Law Case--Professors Andrew Koppelman of Northwestern and Eugene Volokh of UCLA--as "supporters of anti-BDS laws," even though we acknowledged that such laws might well be "unwise, especially when applied to small service providers." Ours was a brief arguing for the constitutionality of anti-BDS laws, not for their enactment.

Thus, I am pleased to report that after we called the error to the attention of the HLR, the editors amended the Note in the online version. They also generously appended the following statement:

A prior version of this Note incorrectly suggested that the authors of the Dorf Brief -- Professors Michael C. Dorf, Andrew M. Koppelman, and Eugene Volokh -- are supporters of anti-BDS laws in the text accompanying note 77 and opponents of BDS in note 137.  Dorf, Koppelman, and Volokh do not advocate for or against the laws in their brief, but only evaluate the laws' constitutionality.  The Review regrets the error. 

It's too late to amend the printed versions of the HLR, but I am nonetheless very grateful to the HLR for acknowledging the error and doing what was possible to correct it. I also take some comfort in the fact that these days the electronic versions of journal articles probably attract more readers than the printed versions.

I'll use the balance of this post to say a few words about the substance of our position and how it differs from the way in which it was described before the correction.

Statement of Former Reinhardt Law Clerks

by Michael C. Dorf

After a former law clerk to Judge Reinhardt testified before a House subcommittee about how he sexually harassed her, other former law clerks reacted with supportive comments. For example, I posted a personal statement saying that I believe her account and echoing her call for better systems for training, deterring, reporting, and responding to such conduct in the judiciary. Late last week over 70 former Reinhardt clerks (including me) signed a statement expressing those sentiments and more. Our statement, which has received some media attention, appears here.

Why Is That Rich, Oblivious, Red-Baiting Guy on the Debate Stage?

by Neil H. Buchanan

How far should candidates go in attacking each other during primaries?  How unfair is too unfair?  How awful is too awful?  Former Mayor Michael Bloomberg decided to cross the line two nights ago, and he went so far past it that I was temporarily at a loss for words.  But the red-baiting plutocrat actually did us an inadvertent favor, because in crossing that line, he actually exposed a deep similarity between communism and (Bloomberg's version of) capitalism.

I have been very hard on Pete Buttigieg and Amy Klobuchar for their unfair treatment of Elizabeth Warren, especially when they have falsely accused her of being vague and unrealistic.  Even so, those attacks might arguably not be the kind of thing that can readily translate into attack ads for the Republicans.  The difficult balancing act for candidates is in saying, "I'm better than her/him," without saying "She/He should never be president."  So let me be clear here.  If Bloomberg is the nominee, he should be president.  Trump is the alternative.  But Bloomberg came closer than I ever thought possible to making me think that the Democrats could end up with a candidate who should never be president.  And I am not talking about Bernie Sanders.

Bloomberg's gall is shocking, but understanding the root of his smarmy self-confidence can be educational for the rest of us.  We begin, however, by looking at what Bloomberg did that earned such excoriation.

Someone Should Tell Trump About Prosecutors' Absolute Immunity

by Michael C. Dorf

I believe myself to be, overall, a pretty good parent, but like most parents, I've said or done things I regret. A low point for me came when my then-five-year-old daughter was resisting being dropped off for the first day of a half-day summer day camp at the local Y. I had a work meeting for which I was late and she was grabbing onto my leg and refusing to go with the "nice lady" (a teenage counselor) to play with the other five-year-olds. After my various efforts at coaxing and cajoling had failed, I resorted to a threat. "I guess I'll have to call the police," I said sternly.

My daughter looked at me and said with disdain and anger: "This is not the kind of thing you call the police for." She was right, of course. Needless to say, I did not call the police, and eventually she calmed down.

Knowing who can be held accountable for what by whom and in what way is much of what knowing about the law entails. Accordingly, I was proud of my daughter for intuitively understanding the scope of the criminal law and how it differs from the mechanisms available for resolving other sorts of disputes. I would like to say she was precocious in that regard, but upon reflection, I would acknowledge that even an average five-year-old would probably be surprised by a parent actually calling the police in response to a minor temper tantrum.

Which brings me to our President, who, one would think, ought to have at least as good an understanding of the legal system as an average five-year-old, because: (a) he's 73 years old; (b) he or one of the companies he runs have been parties in literally thousands of lawsuits; and (c) he's, uhm, the President. One would think that, but one would be wrong.

Transparency Without Accountability is Worse than Opacity (Stone/Barr/Trump edition)

by Michael C. Dorf

The call by over two thousand Justice Department alumni for Attorney General William Barr to resign over his handling of the Roger Stone sentencing recommendation provides an occasion for reflecting on a side issue that has emerged in this and other scandals of the Trump administration. One former DOJ official who has not joined the call for Barr's resignation is his former deputy, George Terwilliger, who was interviewed last week on NPR. In addition to defending Barr, Terwilliger expressed some mild criticism of the president's tweeting, but then pivoted to offer a silver lining. He said:

I would agree that it would perhaps be better if the president didn't tweet about matters of this nature that are before the Justice Department. But on the other hand, there is a level of transparency as to his position that might not otherwise be seen.

In response to a follow-up question, Terwilliger repeated the claim, stating that "there's a certain level of transparency to the public that's there. This isn't some Nixonian, behind-the-scenes improper influence."

Is that right? If the president is improperly influencing DOJ prosecutions for political ends and otherwise befouling our national discourse, does the resulting transparency provide some offsetting compensation? The short answer is no.