Month: August 2022

The “major questions” doctrine is a rule of statutory interpretation that requires Congress to “speak clearly when authorizing an [executive branch] agency to exercise powers of “vast ‘economic and political significance.'” If such a broad delegation of power isn’t clear, the the doctrine requires courts to rule against the executive’s claims that it has the authority in question.

For a long time, the major questions doctrine was a relatively obscure rule of interest mainly to experts in statutory interpretation, and lawyers litigating cases where it might come up. Only occasionally would it affect the outcome of a prominent case. But over the last year, the Supreme Court has relied on it in three major cases: the eviction moratorium decision, the OSHA large-employer vaccine mandate case, and West Virginia v. EPA. This has made the rule a focus of controversy, with critics arguing that it is a flawed doctrine misused by the conservative justices on the Supreme Court.

At the Originalism Blog (to which both are regular contributors), prominent originalist legal scholars Mike Ramsey and Mike Rappaport recently debated the issue of whether the major questions doctrine is consistent with constitutional originalism. Ramsey believes that it is, while Rappaport is skeptical.

Here’s Ramsey:

I was initially skeptical of the major questions doctrine (MQD), as deployed by the Supreme Court in West Virginia v. EPA – basically for the reasons expressed by Chad Squitieri, Tom Merrill and Jonathan Adler.  But with everyone ganging up on the MQD, my contrarian instinct pushes me the other way.  So here is a tentative defense.

First, I assume that the Constitution’s original meaning contains some reasonably strong version of the nondelegation doctrine, that is, that Congress cannot delegate important legislative matters to the President (or administrative agencies) as a result of Article I, Section 1’s vesting of “all legislative Powers” in Congress…..

Second, I assume that the line between permissible and impermissible delegations is so difficult to define and apply that, except in extreme cases, the nondelegation rule is basically nonjusticiable, as held by the Supreme Court (per Justice Scalia) in the Whitman case…  I’m not sure that’s right, but I’m assuming it for purposes of the argument.

Third, I assume that Congress will often enact broad statutes in which the extent of the intended delegation is uncertain.  (I’m pretty confident that’s true).

Now for the argument:

The Court has a common and longstanding practice of developing clear statement rules (whether actually called by that name or not), by which the Court avoids an expansive reading of a statute unless Congress is clear in directing the expansive reading.  For example, a clear statement is needed before a statute is read to interfere with a state’s internal governance (Gregory v. Ashcroft), to apply to purely local activity (Bond v. US), to apply extraterritorially (Morrison v. National Australia Bank), or to impose criminal penalties (the rule of lenity).

Probably the earliest version in US federal law is the “Charming Betsy” rule, requiring a clear statement before a statute is read to violate international law.  (The rule takes its name from Chief Justice Marshall’s decision in Murray v. The Charming Betsy(1804)…).  Specifically Marshall wrote in Charming Betsy: “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”

I’m not sure that’s good enough for a strict textualist, but as an originalist matter that’s a pretty strong practice.  (Also, for what it’s worth, Justice Scalia endorsed most or all of the modern clear statement rules).

In my view, these rules aren’t really about finding the true meaning of the statutory text.  I doubt, for example, we can assume that, absent a clear statement, Congress doesn’t want to violate international law, interfere with states’ internal governance or create criminal penalties.  Rather, these are rules of judicial restraint, avoiding a broad reading of a statute where the meaning is uncertain and there are severe costs to the court erroneously reading the statute broadly…..

Thus, the fact that the MQD applies a clear statement rule instead of applying close textual analysis isn’t novel or contrary to originalism.  To be consistent with historical practice, though, this particular clear statement rule needs to protect against some substantial negative effect of overreading a statute.  For the MQD, I think that argument can be made, if one accepts the assumptions posited at the outset of this post.  Nondelegation is an important constitutional value, assuring that the people’s representatives in Congress make legislative decisions through a deliberative and accountable process.  But since the Court can’t enforce nondelegation directly and delegating statutes are often ambiguous as to their scope, there’s a substantial risk courts will err in reading statutes too broadly, allowing too much delegation to the President or the agencies.

Ramsey’s argument here is similar to that advanced by Supreme Court Justice Neil Gorsuch, who has also argued in several opinions that the major questions doctrine is best understood as a tool for enforcing nondelegation. For example, in his concurring opinion in Gundy v. United States (2019), Gorsuch notes that “[a]lthough it is nominally a canon of statutory construction, we apply the major questions doctrine in service of the
constitutional rule that Congress may not divest itself of its legislative power by transferring that power to an executive agency.”

Here’s Rappaport’s response:

Before discussing Mike [Ramsey’s] view, let me state my basic objection to the MQD: It neither enforces the Constitution nor applies ordinary methods of statutory interpretation.  Thus, it seems like a made up interpretive method for achieving a change in the law that the majority desires.

Mike’s defense is based on his view that “The Court has a common and longstanding practice of developing clear statement rules.”  Even assuming that is true, I do not think that a longstanding practice establishes that something is originalist.  For quite some time, at least until recent terms, the Supreme Court has been interpreting the Constitution and even statutes from an nonoriginalist perspective, but that does not make such nonoriginalism originalist.  That Justice O’Connor announced a federalism canon in 1991 (or the Court applied similar ones in other cases from that time period) hardly provides support for the originalist bona fides of the canon.

Mike claims that this practice goes back to at least Chief Justice Marshall in the Charming Betsy (1804) and Talbott v. Seemen (1801), which required a clear statement before a statute is read to violate international law.  But I am skeptical.  Marshall may have applied the rule but did he “develop” it as Mike claims?  At that time, the law often employed interpretive rules that sought to make different bodies of law cohere with one another.  For example, statutes were interpreted in accord with the common law.  I would be surprised if such a rule did not also apply to statutes and international law.

This is a key point.  There is a strong argument for applying existing interpretive rules to statutes enacted in the shadow of such rules.  This is original methods for statutory interpretation.  It is quite another thing to make up interpretive rules after the enactment.  That is nonoriginalism.

Another justification for the Charming Betsy rule is that it accords with the presumed intent of the Congress.  That justification won’t work for the MQD, since many of these statutes were passed during a period of broad delegation to agencies, when Congress appeared to desire broad delegations and certainly understood delegations would be read in that way.  Mike doubts that the Charming Betsy rule can be justified as the presumed intent of Congress.  But I am not so sure of that either.  While Mike may be right that the present day Congress may not care so much about modern international law, I am less certain that the early Congress would have been willing to ignore international law when the U.S. was a much weaker nation and much more beholden to international law protections….

To be frank, I wish the MQD could be justified.  It would certainly make things easier from the perspective of limiting delegations.  But “wishing does not make it so.”

Both Mikes make good points. But I largely agree with Ramsey. Indeed, I would go further. Even if nondelegation is justiciable, at least in some cases, the major questions doctrine can be justified as an additional tool for enforcing it, in situations where direct enforcement is infeasible for some reason (either because it is intrinsically impossible, or because judges just aren’t willing to do it). In this way, MQD, like other “clear statement” rules can be seen as a second-best tool for enforcing constitutional constraints on government power that, in an ideal world, would get stronger protection.

I think Rappaport fails to effectively respond to this rationale for MQD. Even if it is not the ideal rule, it may be better than the available alternatives in a world where nondelegation is inadequately enforced.

I would add that, while both Mikes implicitly assume that constitutional originalists must also apply originalist principles to statutory interpretation, I am not convinced that is necessarily true. It may be so for those I refer to as “intrinsic originalists,” who believe that originalism is inherently the only legitimate method of legal interpretation. But this is not true for what I call “instrumental originalists” – those whose support for originalism is based on the view that originalism leads to better consequences than other methodologies would. An instrumental originalist might conclude that, while constitutional originalism leads to better consequences than other constitutional theories, statutory originalism isn’t necessarily superior in the same way to all of its rivals.

Rappaport (as described in his excellent book Originalism and the Good Constitution, coauthored, with John McGinnis) is an instrumental originalist. So too am I. That means we cannot presumptively reject nonoroginalist methods of statutory interpretation. For us, it is possible that MQD can be justified even if it is not originalist. That’s especially true if it is a useful tool for enforcing constitutional rules that do have an originalist justification.

As Ramsey recognizes, his rationale for MQD (and Justice Gorsuch’s and mine!) only works if nondelegation rules impose genuine limitations on congressional power to transfer authority to the executive. If the Constitution imposes few or no constraints on delegation, then MQD cannot be justified as a tool for enforcing those (by assumption, nonexistent) restrictions.

The extent to which there are constitutional limits to congressional delegations of power to the executive is a much-disputed issue. Though I generally think there are some significant limits, I won’t try to defend that position here.

Even if MQD is a sound rule, that doesn’t necessarily mean the Court applied it correctly in any given case. I have previously argued that it did so justifiably in the eviction moratorium and vaccine mandate rulings. West Virginia v. EPA strikes me as an at least somewhat closer case.

The post Originalism and the "Major Questions" Doctrine appeared first on Reason.com.

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Last week, a US federal district court ruled that a key element of Florida’s recently enacted “Stop Woke Act” is unconstitutional, because it violates the Free Speech Clause of the First Amendment. The relevant part of the act bars employers from requiring workers to attend trainings or engage in any other “activity” that involves promotion of any of a long list of prohibited ideas.

As Judge Mark Walker of the Northern District of Florida notes in his opinion, this is part of a pattern in which Florida has enacted a series of laws that violate the free speech rights of private organizations on the pretext that doing so somehow prevents them from undermining freedom of speech themselves:

In the popular television series Stranger Things, the “upside down” describes a parallel dimension containing a distorted version of our world…. Recently, Florida has seemed like a First Amendment upside down. Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely. But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely. Compare NetChoice, LLC v. Moody, 546 F. Supp. 3d 1082, 1084 (N.D. Fla. 2021), with § 760.10(8)(a)–(b), Fla. Stat.

Now, like the heroine in Stranger Things, this Court is once again asked to pull Florida back from the upside down. Before this Court is a motion for a preliminary injunction, asking this Court to enjoin a host of Government officials from enforcing portions of the Individual Freedom Act—a law that prohibits employers from endorsing any of eight concepts during any mandatory employment activity. Because the challenged provision of the Act is a naked viewpoint-based regulation on speech that does not pass strict scrutiny, Plaintiffs’ motion for a preliminary injunction…. is GRANTED in part.

The earlier case Judge Walker refers to is the litigation against Florida’s social media law, which bars social media firms from engaging in most content moderation on their sites. That law was recently blocked, on First Amendment grounds, in a decision issued by the US Court of Appeals for the Eleventh Circuit, and authored by Judge by Judge Kevin Newsom, a conservative Trump appointee. In May, the US Supreme Court reinstated a lower court injunction against a similar Texas law.

The “Stop Woke Act” has similar problems. It bars mandatory workplace trainings and other required activities that advance a wide range of concepts:

(a) Subjecting any individual, as a condition of employment, membership, certification, licensing, credentialing, or passing an examination, to training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels such individual to believe any of the following concepts constitutes discrimination based on race, color, sex, or national origin under this section:

1. Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.

2. An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.

3. An individual’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin.

4. Members of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin.

5. An individual, by virtue of his or her race, color, sex, or national origin, bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, sex, or national origin.

6. An individual, by virtue of his or her race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.

7. An individual, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the individual played no part, committed in the past by other members of the same race, color, sex, or national origin.

8. Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, sex, or national origin to oppress members of another race, color, sex, or national origin.

(b) Paragraph (a) may not be construed to prohibit discussion of the concepts listed therein as part of a course of training or instruction, provided such training or instruction is given in an objective manner without endorsement of the concepts.

Point 4 on this list is especially broad, as it appears to ban virtually any training involving advocacy of affirmative action on the basis of race, ethnicity or sex. I am no fan of such racial and ethnic preferences. But advocacy of them is pretty obviously legitimate discourse on an important issue.

Ironically, point 4 may even ban employee training sessions that promote conservative views opposed to accommodation of transgender individuals. After all, such positions almost unavoidably  involve advocacy of the idea that people  “should not attempt to treat others without respect to…sex.” Rather, they necessarily require treating transgender people in accordance with their biological sex when it comes to such matters as deciding which bathrooms they are allowed to use.

Judge Walker effectively explains why these provisions of the law necessarily target speech, and thereby violate the First Amendment. They are not merely regulations of conduct:

To start—though trainings are admittedly at the center of this case—the IFA does far more than ban mandatory trainings. It bars “any . . . required activity” at which the eight forbidden “concepts” are discussed and endorsed. § 760.10(8)(a), Fla. Stat. (emphasis added). Conceivably, that includes trainings, phone calls, assignments, discussions—anything that is required and endorses the concepts.

More to the point, the IFA does not ban all mandatory employee trainings. Nor does it ban mandatory trainings addressing certain concepts. No, the IFA only prohibits trainings that endorse the covered concepts. Indeed, the IFA grants employers free rein to hold mandatory trainings addressing any of the eight concepts so long as those trainings condemn or take no position on those concepts.

Take that idea further. Because the IFA covers any required activity, an employer could require every employee to read Woke, Inc., Inside Corporate America’s Social Justice Scam but could not require employees to read The Color of Law. Worse still, a nonprofit corporation devoted to promoting the idea that white privilege exists could not hold a required meeting at which it endorses the concept of white privilege. But a nonprofit holding the opposite view could freely hold meetings criticizing the concept of white privilege.

The bottom line is that the only way to determine whether the IFA bars a mandatory activity is to look to the viewpoint expressed at that activity—to look at speech. Plainly, the IFA regulates speech.

Not only does the law target speech. It singles out speech that advocates particular viewpoints on disputed issues, while giving more favorable treatment to speech that supports the opposite positions. Such targeting is a blatant violation of the First Amendment.

Perhaps the strongest possible defense of this part of the Stop Woke Act is by way of analogy to sexual harassment law. Under the Supreme Court’s interpretation of Title VII of the Civil Rights Act of 1964, harassment – including that based solely on speech – is illegal, so long as it creates a “hostile environment” based on sex, that is “severe or pervasive.” Florida’s reliance on this analogy is another example of conservative efforts to appropriate anti-discrimination law for their own purposes. If free speech can be restricted in order to protect employees against sexual harassment, why not to protect “anti-woke” employees from workplace trainings that advocate positions they dislike?

Personally, I think sexual harassment law has gone too far in restricting speech, and some of it is unconstitutional. Co-blogger Eugene Volokh has written extensively on this point. But, as Judge Walker explains, the Anti-Woke Act goes even further than sexual harassment law does, and thus is unconstitutional even if the former is not:

Title VII does not regulate speech. Rather, it targets conduct—discriminating “with respect to . . . compensation, terms, conditions, or privileges of employment”—and only incidentally burdens speech. 42 U.S.C. § 2000e-2(a)(1); see Wisconsin v. Mitchell, 508 U.S. 476, 487 (1993) (calling Title VII “a permissible content-neutral regulation of conduct”)…. That prohibition on conduct includes a bar on “requiring people to work in a discriminatorily hostile or abusive environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). In turn, to be sure, it can be mostly speech that creates this environment, but only when such speech is both objectively and subjectively offensive and when it is sufficiently severe or pervasive.

This “severity or pervasiveness” requirement—”that is, a requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual’s work”—provides “shelter for core protected speech.” DeJohn v. Temple Univ., 537 F.3d 301, 317–18 (3d Cir. 2008).

The IFA is the inverse. It targets speech—endorsing any of eight concepts—and only incidentally burdens conduct. Even the slightest endorsement of any of the eight concepts at any required employment activity violates the statute; the IFA requires no evidence that the statement be even subjectively offensive. Nor does the IFA require that the statement create a severely or pervasively hostile work environment. Thus, the IFA, by design, “provides no shelter for core protected speech…”

In drawing this distinction, this Court need not identify the line at which an antidiscrimination law crosses from incidentally burdening speech to directly restricting speech; the IFA sits comfortably on the direct-restriction side of that line and Title VII sits comfortably on the incidental-burden side. Thus, whether the IFA passes constitutional scrutiny has no bearing on whether Title VII passes constitutional scrutiny.

Litigation over this issue is likely to continue. The state will almost certainly appeal Judge Walker’s ruling. But I would be surprised if the state ultimately prevailed. The targeting of speech here is too blatant for courts to overlook.

Conservatives who cheer on the Florida law should consider what liberal states – or, for that matter, a Democratic-controlled Congress – could do if allowed to engage in similar regulation. The same powers that Florida uses to target “woke” employer speech can just as easily be used against conservative employers. For example, it could be used to ban any required workplace training or “activities” that involve advocacy or promotion of any ideas that might be considered racist, sexist, culturally “appropriative,” or otherwise offensive to left-liberal sensibilities. If you think courts should rule that kind of left-wing regulation unconstitutional, the same goes for the Stop Woke Act.

The post Federal Court Rules Against Florida Law Banning "Woke" Workplace Training appeared first on Reason.com.

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