Exceptions

Some years ago, I remarked that “[w]e’re all textualists now.” It seems I was wrong. The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the “major questions doctrine” magically appear as get-out-of-text-free cards.

– Justice Elena Kagan
dissenting opinion in West Virginia v EPA

This week’s featured post was “Inside the White House on 1-6“.

It’s traditional on the 4th of July to say something patriotic and upbeat about America. But I don’t have it in me this year. As historian Michael Beschloss put it on MSNBC this week:

We’re living through a time where I can’t predict to you whether we’ll be living in a democracy five years from now or not. I hope we are.

https://claytoonz.com/2022/07/02/independence-day-2022/

This week everybody was talking about Cassidy Hutchinson

I discuss her testimony to the 1-6 Committee in the featured post. But here I’ll mention a couple of other things about Tuesday’s hearing.

One of the more amazing moments was video of Michael Flynn repeatedly invoking the Fifth Amendment (against self-incrimination) to avoid answering what ought to be softball questions, like “Do you believe in the peaceful transition of power in the United States of America?” WTF, General Flynn?


The closed captioning on at least one stream of the hearing provided a little comic relief: Somebody forgot to tell the automated speech-to-text app about White House Counsel Pat Cipollone, so it struggled whenever anyone said his name. My favorite of its many attempts was “passive bologna”. I think Pat has a new nickname.

and new Supreme Court decisions

https://jensorensen.com/2022/06/29/supreme-court-overturns-roe-theocracy-cartoon/

Last week I focused on three major decisions: overturning Roe, telling Maine it had to support religious schools (in certain circumstances), and tossing out New York’s gun law. Two more important decisions have happened since then: supporting a public-school football coach’s right to lead public prayers on the 50-yard line, and blocking the EPA from pushing utilities to shift away from coal-fired power plants.

Both rulings were typical of this term: their direct effects were less significant than the principles they laid down, and how those principles might be used in future decisions. (Even the Roe reversal, significant as that is on its own, presages a still broader rollback of rights.)

Next term could be even worse: The Court has accepted a case that tests the right of state legislatures to handle federal elections however they want, independent of any previous laws or the state constitution that brought the legislature into existence. Some legislatures in swing states (Wisconsin, for example) are so gerrymandered that the voters have no real say any more. If this case goes wrong, those legislatures could deliver their states’ electoral votes as well, disenfranchising voters in presidential elections.


It’s hard to know what to make of the praying-coach decision, Kennedy v. Bremerton School District, because Neil Gorsuch’s majority opinion so badly misstates the facts of the case. Gorsuch says Coach Kennedy “offered his prayers quietly while his students were otherwise occupied.” If that were true, Kennedy would never have lost his job and there would be no case to decide. But in reality, the coach’s “quiet, personal prayer” looked like this:

Bremerton, Washington is not far from Seattle, and a Seattle Times columnist tells the real story, going back to a 2015 Times article.

It was an account of a news conference Kennedy gave before the team’s big homecoming game against Centralia. “Football coach vows to pray” was the print headline.

It describes — in Kennedy’s own words — how he was inspired to start holding midfield prayers with students after he saw an evangelical Christian movie called “Facing the Giants,” in which a losing team finds God and goes on to win the state championship.

Kennedy “has held his postgame ritual at midfield after each game for a motivational talk and prayer ever since,” the story recounted. By doing so, Kennedy said he is “helping these kids be better people.”

So, the coach’s intention was never the personal “free exercise” of religion the First Amendment protects. He was abusing his publicly-financed position in order to influence his students to participate in a religious ritual, precisely the “establishment of religion” the First Amendment bans. This was not an obscure point that the lawyers overlooked — it was why the appeals court ruled against Kennedy.

Since the decision, I’ve seen lots of people on social media say that Muslims, Pagans, and Satanists should start leading students in prayer, now that the Court has said it’s OK. But that’s not going to work, because Muslims, Pagans, and Satanists won’t be able to find a Supreme Court justice willing to lie for them the way Gorsuch lied for Kennedy.

Dating myself a little, I’m recalling the cereal commercials that always ended “Silly rabbit, Trix are for kids.” Similarly, “religious liberty” is for Christians, as Muslims, Pagans, and Satanists will discover if they try to imitate Coach Kennedy.


The decision in West Virginia v EPA has no immediate consequence: In 2015, Obama’s EPA put forward a plan that would force utilities to lower carbon emissions by shifting from high-carbon generation (like coal-fired plants) to low-carbon generation (like renewables, nuclear, or from coal to natural gas). Red states sued to block the plan, the Supreme Court put a temporary stay on it, and then the Trump administration reversed it. In the meantime, the market forced the same shift the Obama administration had wanted to mandate.

So why is this a case? Well, the Biden White House is considering an updated version of the plan, which the Court is trying to scuttle preemptively.

More importantly, though, Chief Justice Roberts used this occasion to announce a newly invented legal principle: the major questions doctrine:

In certain extraordinary cases … [a regulating] agency must point to “clear congressional authorization” for the power it claims.

This is a relative of the “nondelegation doctrine” of the infamous Lochner Court, which Neil Gorsuch has been trying to revive since he came to the Supreme Court. (Gorsuch’s concurrence makes the connection more explicit.)

Justice Kagan’s dissent describes the situation in more detail: In the Clean Air Act, Congress understood that new environmental dangers would appear, and new regulatory tactics would become necessary. So it wrote a special section into the law, section 111, to give the EPA authority to handle such situations. This is the authority the EPA was using when it issued the Clean Power Plan.

The major questions doctrine says that authorization is not clear enough. Kagan writes:

The majority’s decision rests on one claim alone: that generation shifting is just too new and too big a deal for Congress to have authorized it in Section 111’s general terms. But that is wrong. A key reason Congress makes broad delegations like Section 111 is so an agency can respond, appropriately and commensurately, to new and big problems. Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues—even significant ones—as and when they arise. That is what Congress did in enacting Section 111. The majority today overrides that legislative choice. In so doing, it deprives EPA of the power needed—and the power granted—to curb the emission of greenhouse gases.

Where in the Constitution does either “major questions” or “non-delegation” reside? Well, nowhere exactly. It’s supposedly implicit in the separation of powers. Why either doctrine is more obvious than the right to privacy is lost on me.

What these doctrines are is a major power grab by the conservative court. No criteria defines what makes a law’s delegation of power too “unclear” or an agency’s regulation too “major” to be invalid under these doctrines. So basically it’s open season on regulations, and the Court can invalidate whichever ones it doesn’t like.


One observation about the EPA ruling: If Congress is supposed to authorize policy changes at a level that previously has been left to administrative agencies, then the Senate filibuster has to go. A filibuster-gridlocked Senate is not nimble enough to address the regulatory challenges of fast-changing fields like climate change or technology.

To me, that statement is independent of partisanship. If the Supreme Court is going to force Congress to take a more hands-on approach to governance, then Congress has to be able to pass legislation. If Republicans get control of Congress again, they will probably pass laws that I consider bad. But even that would be action that the public could see and respond to, maybe by electing better people to Congress. I have more faith in such a back-and-forth process than in the current nothing-can-be-done logjam, which is more likely to cause voters to give up in despair.


Ezra Klein raised a good point on his July 1 podcast (where he interviewed Kate Shaw, who is a law professor and has her own podcast “Strict Scrutiny”): If the conservative majority is serious about this new focus on history as the determining factor in its decisions, then the Court needs to have world-class historians on its staff, rather than just law clerks.

After all, the justices were not chosen for their historical expertise, and their clerks are recent law-school graduates who have probably never studied American history to any depth. That’s why the historical debates between the conservative rulings and the liberal dissents sound so amateurish on both sides. (Robert Spitzer disparaged Justice Scalia’s Heller decision — the granddaddy of originalist opinions and the model for Thomas’ majority opinion in Bruen — as “law office history“.)

When the current court does history, it’s as if the bankers at the Federal Reserve decided not to bother consulting economists, or using IT people to keep their computer models running. (“I’ve calculated on this napkin that we need to raise interest rates another half percent.”)

Of course, maybe that’s the point. Maybe the history lessons in the recent decisions aren’t intended to be accurate. Maybe they’re just stories that allow the conservative majority to justify whatever it wants to do.

and reaction to Roe’s reversal

https://www.newyorker.com/cartoons/daily-cartoon/tuesday-june-28th-not-your-business

Polls show abortion is rising as an election issue. A lot of pundits are calling on Democrats to make a clear commitment on the issue, more or less along the lines of the Republicans’ “Contract with America” in 1994. Being vaguely pro-choice and encouraging people to vote isn’t enough.

Josh Marshall (hardly a radical progressive) suggests this phrasing:

If the Democrats hold the House and add two Senators in November I will vote to pass a law making Roe’s protections the law nationwide and change the filibuster rules to guarantee that bill gets an up or down vote. And I will do that in January 2023.

As I mentioned in the Supreme Court note above, an ambitious and extremist Supreme Court means that the other branches of government have to step up and compete for power. If any vagueness in the laws is going to give this Court an opening it is eager to fill, then Congress has to be able to pass new laws as developments warrant. The filibuster absolutely has to go.


The Indianapolis Star reports that a 10-year-old girl who was six weeks and three days pregnant traveled to Indiana in order to get around Ohio’s six-week abortion ban. The girl was referred by a child-abuse doctor in Ohio.

Sunday, South Dakota Governor Kristi Noem was questioned about her state’s abortion ban, which criminalizes any abortion not necessary to save a woman’s (or girl’s) life. Asked how that 10-year-old would fare in South Dakota, Noem dodged the question.

But the messiness of real life is why this issue isn’t going to go away by November. (Ten-year-olds do get pregnant. Some fetuses can’t be saved, and endanger their mothers without any upside. Some men will kill their girlfriends rather than take responsibility for a child.) There’s going to be a steady stream of cases where radical anti-abortion laws lead to results that the public isn’t going to like. It’s not going to be as simple as “save the babies”.


The satire site McSweeney’s takes on the we-will-adopt-your-baby offers from anti-abortion couples, by describing all the things the couples won’t adopt.

We want that baby when it’s nice and cute and fully formed, but we aren’t planning on adopting anything else. Obviously, we can’t adopt your morning sickness, so when you wake up at 5 a.m. to puke your guts out before work, and when you also puke your guts out at work in the employee bathroom, we won’t adopt that.

… Oh, and if you have a miscarriage and nearly bleed out in your bathroom before the paramedics can get to you? That part is not a tiny little chubby baby, so we won’t be adopting it.


One particularly annoying anti-abortion argument keeps popping up: What about the lost potential of the aborted fetus? The memes are like “What if that baby would have grown up to cure cancer?” or “What if they had aborted Jesus?”

I’ve begun responding to these by pointing to the lost potential of women who are thrown off their life path by an unplanned pregnancy. “It’s more likely that cancer would have been cured by a woman who had to leave medical school to raise an unwanted child.” Or “Maybe Mary could have saved the world herself if God hadn’t forced motherhood on her.”

and the pandemic

Numbers continue to be flat-ish, but to me they look ready for a jump upward after the holiday weekend. Cases are up 13% in the last two weeks, and deaths up 24%. More and more people I know are getting sick, and I wonder how many of their cases show up in the official statistics. I believe a lot of people with minor symptoms test positive at home and never enter the medical system.

and primaries

Tuesday’s primary elections brought mostly good news for democracy.

In Colorado, Republicans rejected candidates for governor and senator who claim Trump won the 2020 elections. The GOP Senate nominee largely supports reproductive rights, and defeated a candidate who wants to ban abortion nationally (and who was at the 1-6 rally). Republicans rejected a secretary of state candidate who is under indictment for tampering with voting machines in an attempt to prove one of Trump’s election-fraud theories.

Mississippi Republican Michael Guest was renominated for his House seat, in spite of his minor rebellion against Trump: He voted to establish a bipartisan commission to investigate 1-6, a measure that MAGA Republicans are probably sorry they torpedoed.

The more moderate candidate won the Republican nomination for governor in Illinois, though Rep. Mary Miller, the woman who last week declared the Dobbs decision “a victory for white life”, defeated a less Trumpy congressman in a newly formed district that forced two sitting representatives to face off. (The district includes my hometown.) Progressive candidates won Democratic nominations for Congress in two districts in the Chicago area.

Illinois was one state where Democrats tried to game the system by helping the more radical Republican in the gubernatorial primary, in the belief that such a candidate would be easier to beat. This is a dangerous practice, and I’m happy that it failed.

and Ukraine

Russia has captured Lysychansk, the last major city in Luhansk province.

With Luhansk Province now in hand, Russian forces can aim squarely southwest at the remaining Ukrainian-held parts of the neighboring province of Donetsk, the other territory that makes up the Donbas.

The Economist predicts Putin’s strategy:

You can see where Mr Putin is heading. He will take as much of Ukraine as he can, declare victory and then call on Western nations to impose his terms on Ukraine. In exchange, he will spare the rest of the world from ruin, hunger, cold and the threat of nuclear Armageddon.

and you also might be interested in …

The Brownshirts are out.

Dozens of white supremacists marched through Boston on Saturday. The group wore white masks and were seen boarding Orange Line trains at Haymarket Station. Some carried police shields and flags. They are members of a group called Patriot Front.


Gallup reports that only 81% of Americans say they believe in God, down from 87% in 2017, and the lowest number since Gallup started asking the question in 1944. That number looks likely to fall further, because the people least like to believe are the young: only 68% of adults ages 18-29.


In Florida, the other shoe is dropping. After raising public anger about largely imaginary liberal indoctrination through “critical race theory” or “grooming”, the DeSantis administration is instituting indoctrination of its own.

New civics training for Florida public school teachers comes with a dose of Christian dogma, some teachers say, and they worry that it also sanitizes history and promotes inaccuracies.

The Miami Herald:

Teachers who spoke to the Herald/Times said they don’t object to the state’s new standards for civics, but they do take issue with how the state wants them to be taught. “It was very skewed,” said Barbara Segal, a 12th-grade government teacher at Fort Lauderdale High School. “There was a very strong Christian fundamentalist way toward analyzing different quotes and different documents. That was concerning.”

Meanwhile, the Texas Education Agency is taking flak for considering changing the word “slavery” to “involuntary relocation” in the second-grade curriculum standards.

In Wisconsin, a novel about the internment of Japanese-Americans during World War II has been kicked out of the curriculum because it’s “unbalanced” and presents only one side of the issue. A parent in the district commented: “The other side is racism.”

and let’s close with something too small to work

In this age of miniaturization, smaller is often better. But once in a while the shrinking process goes too far. Well, it’s good to know that Nature also makes this mistake occasionally: Witness the pumpkin toadlet, a frog about the size of Skittle. It looks very froggish, but it doesn’t have that whole jumping thing down yet. I can’t explain why it’s so much fun to watch them try, but it just is.

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Comments

  • George Washington, Jr.  On July 4, 2022 at 12:36 pm

    A counter to “what if they had aborted the baby who would have cured cancer” is “what if they had aborted Karl Marx, and the 100 million people [supposedly] killed by communism had lived?”

    • Carol Jacobs Carre  On July 4, 2022 at 12:48 pm

      Of course, Communism killed no one. Karl Marx was no more responsible for the reprehensible behavior of state leaders than George Washington was for the reprehensible behavior of Donald Trump.

    • Guest  On July 5, 2022 at 3:00 pm

      It’s tough out there, George, but two successful pro-choice arguments for fence-sitters and open-minded pro-life folks I’ve seen in the wild appeal to common ground and constitutional religious freedom respectively. First, if you can find common ground on allowing abortion in cases of rape, you go with that, and socratically lead them through what that would look like in practice. Would a pregnant rape victim have to prove rape first before getting access? Well, a conviction in court of law proving rape would often take longer than any pregnancy…so, if we agreed that rape victims should be allowed abortions, should we then just trust the victim requesting an abortion? Ok, but might some people just falsely claim rape just to get access? Sure, but since a doctor would likewise not be able to ascertain the validity of the claim, we end up right back to where we started in the Roe status quo. It’s a serious loophole, but there’s no practical way to close it without forcing pregnancy on rape victims, which goes against the agreed common ground.

      On religious freedom, the point is that different faiths and different believers put the start of life or personhood at different times. For some every sperm and egg is life, for others it’s not a life until conception, or the quickening, or the first drawn breath after birth, etc. Because the govt must not make laws respecting any one religion, they must remain neutral and let the people decide for themselves, and again we are back to the Roe status quo.

      • George Washington, Jr.  On July 5, 2022 at 7:22 pm

        The rape exception is what’s referred to as a moral bandaid – a position that makes the person look less crazy than they really are. But it has the problem you pointed out. If a woman has an abortion, but the rapist stands trial and is acquitted, will the doctor who gave her the abortion now be charged with homicide, since “she wasn’t really raped?”

        Not to mention, it should be repugnant to any decent person that a woman can only have an abortion if a man violates her. Just more proof that so-called “pro-lifers” are moral degenerates.

  • dmichael  On July 4, 2022 at 1:18 pm

    Could you give me an example of “That’s why the historical debates between the conservative rulings and the liberal dissents sound so amateurish on both sides.”? Robert Spitzer’s well-written article says nothing about liberal dissents and poor history.

  • JP  On July 4, 2022 at 1:31 pm

    I think your assessment of the Illinois Gov primary is incorrect. The winner was Darren Bailey, who was endorsed by Trump, Miller, and Jeanne Ives. He was the far-right candidate, and the one that Democrats tried to boost over Richard Irvin.

  • Ed Blanchard  On July 4, 2022 at 2:18 pm

    Another well-written post today, thank you!
    I can only respond to one element of it because it strikes home: Michael Flynn’s invoking the 5th Amendment in his response to the Jan 6 Committee testimony. He is a retired commissioned officer in the US Army. The oath he took several times in his career technically has a term limit that expires at the end of one’s enlistment or commissioned service. However, for most of us who served “…faithfully and with honor…”, the oath never ends until you die or relinguish your citizenship. Flynn retired at the rank of Lieutenent General. It goes beyond any justification that he denied this oath as he did at the testimony. He has placed, as a suffix to his name, “panderer” instead of his former title “US Army, Retired”. (signed, a 24 year US Marine, Retired)

  • halfamind2  On July 4, 2022 at 7:23 pm

    Doug,

    You wrote: Where in the Constitution does either “major questions” or “non-delegation” reside? Well, nowhere exactly. It’s supposedly implicit in the separation of powers.

    I’m reminded of a court scene in an Australian movie called The Castle (1997) where an ill-equipped lawyer is defending his client’s home from being reclaimed by an airport corporation. He argues that the reclamation is against the constitution. When asked which part of the constitution, he replies “it’s against the whole ‘vibe’ of the thing”

    I see parallels. 

    But in the American case, it appears to me that it is the Supreme Court Justices who are making an argument where ‘the vibe of the thing’ is roughly equivalent to “implicit in the separation of the powers”.

    Cheers, Steve

  • ramseyman  On July 5, 2022 at 11:01 am

    I had not previously heard about the Texas push to rename slavery “forced relocation” for 2nd graders. That’s pretty squirrely, but it must also be admitted that most non-black people don’t get the whole brutal picture when they hear the word “slavery.” How do you come to terms with the horror and the immediacy of what white people did to black people in this country when people are picturing happy industrious workers enjoying watermelon and spirituals down on the pleasant plantations of the South? And do 2nd graders need to know the whole unvarnished truth? I think they need to know a lot more about “forced” everything than what they’re being told.

  • Ed Blanchard  On July 5, 2022 at 12:19 pm

    Our treatment of people of color in this country includes the horrid displacement of complete tribes to what was then undesired land. First People citizens still endure the ignorance of the white man today. -a white man (part Oklahoma Five Nations blood)

  • Guest  On July 5, 2022 at 3:24 pm

    “Democrats tried to game the system by helping the more radical Republican in the gubernatorial primary, in the belief that such a candidate would be easier to beat. This is a dangerous practice, and I’m happy that it failed.”

    Dangerous might be an understatement, Doug, given how well the practice worked out for us in 2016 (see the November 9, 2016 Salon article “How the Hillary Clinton campaign deliberately ‘elevated’ Donald Trump with its ‘pied piper’ strategy” among others). It was a devastating blunder, but since there hasn’t been much in the way of accountability for the DNC/Democratic leadership, I would expect to see more doubling down on this “lesser-evilism” approach, where we are asked to focus on the negatives of political opponents instead of any positives we could bring to the table.

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