A Very Few Very Quick Thoughts on the Last Day of the SCOTUS Term
by Michael C. Dorf
This little post is not intended as a summary of the whole Term, just today. Here goes:
(1) It was terrible, but it could have been worse. The Court in Biden v. Texas allowed the administration to end "Remain in Mexico." The idea that this cruel policy--pursued by no administration prior to Trump's--was statutorily required all along was unbelievable. And the Court's holding was simply that the word "may" means "may," not "must." So of course the case barely came out the right way, with Justices Thomas, Alito, Gorsuch, and Barrett dissenting.
(2) West Virginia v. EPA is very bad news for the planet and for regulation more generally. Justice Kagan is a bit too cute in dissent in pointing out that the Court had never before used the term "major questions doctrine." The basic idea was established in prior cases, but she and Justices Breyer and Sotomayor, who joined her dissent, are right that the Court has expanded the doctrine. Given that virtually any administrative law case worth litigating is going to involve the sorts of issues that the Court identifies as triggering the major questions doctrine, a more accurate term going forward might be simply the "questions doctrine." Put differently, the Court has now created a plain-statement requirement for delegation. And given that the whole point of delegation is that Congress can't anticipate everything, that will rarely be satisfied. So the administrative state is hobbled. Quite the parting gift for Justice Breyer.
(3) Speaking of Justice Breyer, hats off to him. Here's my tribute, in case you missed it. And welcome to Justice Jackson!
(4) The most jaw-dropping line I read today was in the concurrence by Justice Gorsuch (joined by Justice Alito) in WV v. EPA. He wrote: "The framers believed that the power to make new laws regulating private conduct was a grave one that could, if not properly checked, pose a serious threat to individual liberty." Right. Regulating the private conduct of burning coal that ruins the Earth is a grave/serious threat to individual liberty. Compelling pregnancy and childbirth, not so much.
(5) The cert grant in Moore v. Harper--presenting the Court with a chance to weigh in on the horrific independent state legislature theory--is terrifying. The one potential silver lining is that perhaps the Court will do less damage in this setting than it would if the issue were to arise in the context of a Presidential election. But the case still holds the potential to finish off what's left of American democracy.
And with that--and whatever sunshine and unicorns Professor Buchanan brings tomorrow--I wish my readers a happy Independence Day weekend.