Wake Forest Law Review
12Oct

The Demise of Deference? Chevron Doctrine Faces its Toughest Test Yet

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Noah McDuff

          I.      An Introduction to Chevron Deference

The Supreme Court’s landmark decision in Chevron v. National Resources Defense Council[1] has served as a pillar in the administrative law community for almost forty years[2] and remains one of the most cited high court decisions in history.[3] In Chevron, the Court established the Chevron doctrine, a two-step analysis for judicial “revie[w] [of] an agency’s construction of the statute which it administers.”[4]

First, the court must identify whether Congress has directly addressed the issue in question (i.e., whether the statute is ambiguous).[5] If the statute specifically addresses the issue, such that congressional intent is evident, the Chevron analysis ends there, and both the court and the administrative agency must give effect to Congress’ intent.[6] However, if the statute is silent on the issue, the court will proceed to step two of the analysis to determine whether the agency’s interpretation is reasonable.[7] If the court finds that the agency’s interpretation is reasonable, the court will not impose its own reading of the statute, but will defer to the agency’s interpretation.[8] Thus, the Chevron doctrine grants federal administrative agencies substantial judicial deference if (1) a statutory provision is ambiguous, and (2) the federal agency’s interpretation of the ambiguity is reasonable.[9]  

However, in recent years, the Chevron doctrine has been the target of attacks.[10] Critics, including prominent judges and scholars, fear that the doctrine places legislative and judicial power in the hands of unelected bureaucrats, whose motivation stems from economic gain, as opposed to sovereign representation.[11] Chevron supporters argue that administrative agencies are better positioned to address the technical aspects of federal law,[12] and revoking such administrative power would negatively impact important federal policies and programs.[13]

          II.      Chevron Lite: Deference In Its Modern Form

While intense debate swirls regarding its future, the modern Doctrine is more bark than bite.[14] In recent years, when faced with the task of applying Chevron, the Supreme Court has diminished[15] or outright ignored the Chevron doctrine.[16] For lower courts, Chevron is still binding precedent, and the courts continue to apply it as intended.[17] Regardless of its perceived importance in the world of administrative law, the fact that lower courts’ application of the Doctrine varies considerably from the Supreme Court’s reflects the Court’s struggle to identify the Doctrine’s foundations and to specify its reach.[18] Thus, Supreme Court review of Chevron will prove vital to the continued efficient operation of courts on administrative law matters.

           III.      Loper Bright Enterprises

Loper Bright Enterprises v. Raimondo[19] presents the Court with a much-needed opportunity to resolve uncertainty surrounding Chevron. The case is scheduled to be addressed during the Supreme Court’s October 2023 term,[20] and a decision is expected during the first half of 2024.[21]

In 2020, New Jersey-based fishing company, Loper Bright Enterprises, and other Atlantic herring fishermen (collectively, “Loper Plaintiffs”) filed suit in the U.S. District Court for the District of Columbia.[22] The Loper Plaintiffs challenged a final rule and implementing regulations promulgated by the National Marine Fisheries Service (“NMFS”)  that established processes for industry-funded monitoring in Atlantic herring fisheries.[23] The final rule was promulgated under the Magnuson-Stevens Fishery Conservation and Management Act of 1976 (“MSA”), which was enacted to conserve domestic fisheries and other “aquatic resources.”[24] Under the MSA, NMFS was tasked with promulgating policies consistent with the MSA.[25]

The Loper Plaintiffs alleged that the rule promulgated by the NMFS violated both statutory and constitutional protections.[26] Specifically, the Loper Plaintiffs expressed concern for the economic costs such monitoring would place on the herring fleet.[27] Applying the Chevron doctrine, the district court ruled against the Loper Plaintiffs,[28] reasoning that “[e]ven if Plaintiffs’ arguments were enough to raise an ambiguity in the statutory text, the Court . . . would conclude that [NMFS’s] interpretation is a reasonable reading of the MSA.”[29]

The Loper Plaintiffs then appealed to the United States Court of Appeals for the D.C. Circuit.[30] In a divided panel, the appellate court deferred to the administrative agency’s interpretation of the MSA under the Chevron doctrine.[31] The Circuit’s opinion, authored by Judge Rogers, reasoned that the MSA does not provide a “wholly unambiguous answer . . . as to whether the [NMFS] may require industry-funded monitoring” and that the NMFS’s interpretation of the MSA to allow such monitoring was reasonable.[32] In doing so, the Court of Appeals set the stage for the Supreme Court’s Chevron showdown.

In its petition for writ of certiorari to the United States Supreme Court, the Loper Plaintiffs asked the Court to answer two questions: “(1) [w]hether, under a proper application of Chevron, the MSA implicitly grants NMFS the power to force domestic vessels to pay the salaries of the monitors they must carry,” and “(2) [w]hether the Court should overrule Chevron or at least clarify the statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.”[33] In May 2023, the Supreme Court granted certiorari to the Loper Plaintiffs as to only the latter question.[34] The Court’s grant of certiorari resulted in a plethora of amicus curiae briefs filed in support of both the petitioners and respondents.[35] Interested parties include the American Cancer Society, Muscular Dystrophy Association, American Federation of Labor and Congress of Industrial Organizations, American Association for the Advancement of Science, Main Street Alliance, American Sustainable Business Council, National Resources Defense Council, and many others.[36]

          IV.      Deference Moving Forward

In a year filled with attacks on administrative law powers,[37] as the current Court seeks to narrow the scope of federal administrative authority,[38] Chevron’s future appears bleak.[39]

Regardless of the clamor associated with the Court’s upcoming decision, overturning Chevron will likely not spell the downfall of  administrative law.[40] To echo the sentiments of many scholars, judges, and other legal professionals, Chevron, in its original form, has been defunct for a number of years.[41] Further, an aggressive reading and application of Chevron runs afoul of the separation of powers doctrine in the Constitution.[42] That being said, courts can very likely still comply with the Constitution and resolve statutory ambiguities in situations that would give rise to Chevron deference by utilizing traditional means of interpretation. In the words of Justice Scalia, “Chevron is . . . not a declaration that, when statutory construction becomes difficult, we will throw up our hands and let regulatory agencies do it for us.”[43] After all, “Chevron only applies when, after exhausting all of the tools of statutory construction, the statute remains ambiguous.”[44] Further, it has long been understood that “[t]hose who ratified the Constitution knew that legal texts [including federal statutes] would often contain ambiguities,” and federal “judicial power was understood to include the power to resolve these ambiguities over time.”[45]

Therefore, courts have long been understood to have both the constitutional power and the proper tools and resources to address statutory ambiguities through traditional statutory interpretation. Thus, in Loper Bright Enterprises v. Raimondo, the Court should strike down Chevron, thereby preserving principles of federal separation of powers, and proceed with traditional means of statutory interpretation.

[1] 467 U.S. 837 (1984).

[2] See Cass R. Sunstein, Chevron as Law, 107 Geo. L. J. 1613, 1615 (2019) (stating that Chevron “has a strong claim to being the most important case in all of administrative law.”); Thomas W. Merrill, The Story of Chevron: The Making of an Accidental Landmark, 66 Admin. L. Rev. 253, 254 (2014) (explaining how Chevron “is the Supreme Court’s leading statement about the division of authority between agencies and courts in interpreting statutes.”).

[3] Kent Barnett & Christopher Walker, Chevron in the Circuit Courts, 116 Mich. L. Rev. 1 (2017) (explaining that “the decision itself is one of the most cited Supreme Court decisions of all time” and that as of 2017, it “has been cited in more than 80,000 sources“).

[4] 467 U.S. at 842.

[5] Id.

[6] Id. at 842–43.

[7] Id. at 843.

[8] Id. at 843-44.

[9] Christopher J. Walker, Attacking Auer and Chevron Deference: A Literature Review, 16  Geo. J. L. & Pub. Pol’y 103, 110 (2018) (citing Chevron, 467 U.S. at 842–43) (summarizing the holding of Chevron).

[10] See Sunstein, supra note 2, at 1615 (noting that Chevron is “under siege” and “it may not live to see the age of forty”); Nathan D. Richardson, Deference is Dead, Long Live Chevron, 73 Rutgers Univ. L. Rev. 441, 443–44 (2021) (“Moreover, Chevron appears under threat. Prominent judges and academics . . . have called for its reconsideration and possible rejection.”).

[11] See Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv L. Rev. 2118, 2150 (2016) (“In many ways, Chevron is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch.”); Michael W. McConnell, Kavanaugh and The “Chevron Doctrine,” Stan. L. Sch. Blogs (Aug. 2, 2018), https://law.stanford.edu/2018/08/02/kavanaugh-and-the-chevron-doctrine/ (Chevron “raises the deep question of constitutional governance: whether fundamental political questions will be debated and resolved by representatives of the people, or by agencies whose loyalties almost always are ideological or economic interests.”). For a discussion of judicial criticism of Chevron, see Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 119 (2015) (Thomas, J., concurring) (“[T]he judicial power, as originally understood, requires a court to exercise its independent judgment in interpreting and expounding upon the laws.”); Michigan v. EPA, 576 U.S. 743, 762 (2015) (Thomas, J., concurring) (“Such a transfer [in authority] is in tension with Article III’s Vesting Clause, which vests the judicial power exclusively in Article III courts, not administrative agencies.”). For an overview of legislative attacks against Chevron, see Jonathan R. Siegel, The Constitutional Case for Chevron Deference, 71 Vand. L. Rev. 937, 951–52 (2018).

[12] See Jeffrey. Pojanowski, Without Deference, 81 Mo. L. Rev. 1075, 1075 (2016) (“Many jurists and scholars see it [Chevron] as a salutary and natural outgrowth of administrative legal doctrine that recognizes the necessity of agencies’ technical expertise.”); Brief for American Cancer Society et al. as Amici Curiae Supporting Respondents at 4, Loper Bright Enters. v. Raimondo, 143 S. Ct. 2429 (2023) (No. 22-451) (“The competent and stable administration of these [federal] programs depends on the deep expertise of the agencies to which Congress has assigned the responsibility.”);  Brief for Scholars of Administrative Law and the Administrative Procedure Act as Amici Curiae Supporting Respondents at 3, Loper Bright Enters., 143 S. Ct. 2429 (No. 22-451) (“Just as a court might ‘decide’ a question of law starting from a blank slate, a court equally fulfills that duty by looking to an agency’s interpretation of law and adopting it if it deems it reasonable.”).

[13] See Brief for Lawyers’ Committee for Civil Rights Under Law as Amici Curiae Supporting Respondents at 3, Loper Bright Enters., 143 S. Ct. 2429 (No. 22-451) (“In the absence of agency rulemaking that addresses points on which underlying statutes are silent or purposely broad, our society’s ability to realize the benefits of the protections in this nation’s landmark civil rights statutes would be significantly impeded.”); Brief for National Resources Defense Council as Amici Curiae Supporting Respondents at 17, Loper Bright Enters., 143 S. Ct. 2429 (No. 22-451) (“By restraining judges from imposing their policy preferences on an agency, deference also promotes legal uniformity . . . .”).

[14] See Michael Herz, Chevron is Dead; Long Live Chevron, 115 Colum. L. Rev. 1867, 1870 (2015) (“For all the clamor, attention, and citations, Chevron has had less of an impact than this attention implies.”); Richardson, supra note 10, at 443 (“But at the Supreme Court level, Chevron now lacks the power and predictability it claims to have—and may once have had—though it probably never had the influence its reputation suggests.”).

[15] See Buffington v. McDonough, 7 F.4th 1361 (Fed. Cir. 2021), cert. denied, 143 S. Ct. 14, 21 (2022) (Gorsuch, J., dissenting) (stating that an “aggressive reading of Chevron has more or less fallen into desuetude—the government rarely invokes it, and courts even more rarely rely on it”); Kavanaugh, supra note 11, at 2151 (stating that “the Supreme Court itself has been reining in Chevron in the last few years”).

[16] See Richard J. Pierce, Jr., Is Chevron Deference Still Alive?, The Regul. Rev. (Jul. 14, 2022), https://www.theregreview.org/2022/07/14/pierce-chevron-deference/ (identifying recent decisions where the Supreme Court has “simply ignored Chevron”); Am. Hosp. Ass’n v. Becerra, 142 S. Ct. 1896 (2022) (utilizing “traditional tools of statutory interpretation” without citing Chevron); Becerra v. Empire Health Found., 142 S. Ct. 2354 (2022) (agreeing with HHS’s interpretation of a statute without citing Chevron); Barnett & Walker, supra note 2, at 4 (“Scholars and commenters . . . have noticed the Court’s treatment of Chevron as a doctrine to ignore, disparage, or distinguish.”).

[17] See Barnett & Walker, supra note 2, at 32 (explaining how circuit courts applied the Chevron framework 74.80% of cases in which it could apply).

[18] Sunstein, supra note 2, at 1657 (“Since Chevron, the Court has struggled both to specify the foundations of the decision and to limit its reach.”).

[19] 45 F.4th 359 (D.C. Cir. 2022), cert. granted, 143 S. Ct. 2429 (2023) (No. 22-451).

[20] Amy Howe, Supreme Court Will Consider Major Case on Power of Federal Regulatory Agencies, SCOTUSblog (May 1, 2023, 11:54 AM), https://www.scotusblog.com/2023/05/supreme-court-will-consider-major-case-on-power-of-federal-regulatory-agencies/.

[21] Id.

[22] Complaint, Loper Bright Enters. v. Raimondo, 544 F. Supp. 3d. 82 (D.D.C. 2021) (No. 20-466).

[23]  Loper Bright Enters., 544 F. Supp. 3d at 93.

[24] Id. at 94.

[25] Id.

[26] Id. at 93–94.

[27] Id. at 96–97.

[28] Id. at 127.

[29] Id. at 107.

[30] Brief for Appellant, Loper Bright Enters., 45 F.4th 359 (D.C. Cir. 2022) (No. 20-466), 2021 WL 5357459.

[31] Loper Bright Enters., 45 F.4th at 369.

[32] Id.

[33] Petition for Writ of Certiorari at i-ii, Loper Bright Enters., 143 S. Ct. 2429 (No. 22-451).

[34] Loper Bright Enters., 143 S. Ct. 2429.

[35] See Juan-Carlos Rodriguez, Chevron Doctrine Supporters Flock to High Court in Key Case, Law360 (Sep. 22, 2023, 5:52 PM), https://www.law360.com/tax-authority/articles/1724839/chevron-doctrine-supporters-flock-to-high-court-in-key-case (detailing amicus briefs filed by various interested parties).

[36] Id.

[37] See Andrew Chung & John Kruzel, Federal Agency Powers in the Crosshairs at the US Supreme Court, Reuters (Jul. 5, 2023, 2:08 PM), https://www.reuters.com/legal/federal-agency-powers-crosshairs-us-supreme-court-2023-07-04/.

[38] Chung & Kruzel, supra note 37.

[39] See Pojanowski, supra note 12, at 1078 (“Skepticism about Chevron deference is not new, but hostile rumblings from the Supreme Court have grown in the past few Terms.”).

[40] See Pojanowski, supra note 12, at 1080 (“Abandoning Chevron may not, in fact, change the frequency and extent of judicial deference as much as Chevron’s critics hope or its supporters fear.”).

[41] See Herz, supra note 14, at 1870; Richardson, supra note 10, at 443;  Pierce, supra note 16.

[42] See City of Arlington v. FCC, 569 U.S. 290, 312–13 (2013) (Roberts, C.J., dissenting) (“Although modern administrative agencies fit most comfortably within the Executive Branch, as a practical matter, they exercise legislative power, by promulgating regulations with the force of law; executive power, by policing compliance with those regulations; and judicial power, by adjudicating enforcement actions and imposing sanctions on those found to have violated their rules.”); Michigan v. EPA, 576 U.S. 743, 762 (2015) (Thomas, J., concurring) (asserting that Chevron infringes on the Constitution’s separation of powers because it “is in tension with Article III’s Vesting Clause, which vests the judicial power exclusively in Article III courts, not administrative agencies”); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring) (stating that “Chevron . . . permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design”); Pereira v. Sessions, 138 S. Ct. 2105, 2121 (2018) (Kennedy, J., concurring) (discussing how “[t]he proper rules for interpreting statutes and determining agency jurisdiction and substantive agency powers should accord with constitutional separation-of-powers principles and the function and province of the Judiciary”).

[43] Pauley v. Bethenergy Mines, Inc., 501 U.S. 680, 707 (1991) (Scalia, J., dissenting).

[44] Anthony Caso, Attacking Chevron: A Guide for Practitioners, 24 Chap. L. Rev. 633, 656 (2021).

[45] Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 119 (2015) (Thomas, J., concurring).

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28Sep

Harper v. Hall and State Courts as Politically Accountable Actors

Categories: Online
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13 Wake Forest L. Rev. Online 42

Brandon J. Johnson[1]

Introduction

The North Carolina Supreme Court’s recent decision to reverse course on partisan gerrymandering has garnered national attention.[2] In the court’s third opinion issued in Harper v. Hall,[3] (“Harper III”) a newly elected 5-2 conservative majority of the state supreme court overruled the first opinion[4] authored by the previous 4-3 liberal majority and declared partisan gerrymandering to be a nonjusticiable political question.[5] Election law and constitutional law scholars have produced reams of content questioning how the ruling would impact the U.S. Supreme Court’s pending consideration of the state court’s prior decision in the case.[6] Many questioned whether the state court’s decision would cause the Court to dismiss the initial appeal.[7]

As it turned out, the U.S. Supreme Court’s ruling in what would be known as Moore v. Harper[8] was a significant election law case that expanded the federal judiciary’s role in regulating federal and even state elections. The Supreme Court’s opinion in the case received significant national attention and was largely greeted with a sigh of relief by many scholars and commentators who worried that the Court would adopt an extreme version of a fringe theory known as the Independent State Legislature Theory.[9] Indeed, the importance of the U.S. Supreme Court’s decision regarding the Independent State Legislature Theory has been the primary focus of the commentary surrounding Harper v. Hall and Moore v. Harper, and rightly so.[10] If the Court had adopted the most extreme version of the theory, state legislatures—including (and perhaps especially) significantly gerrymandered legislatures—would have free rein to craft election regulations that entrenched partisan advantages with no constitutional guardrails. Though the Court rejected this approach, the Moore majority left the door open for the U.S. Supreme Court to act as the final arbiter of state election practices, which by itself has caused significant consternation among election law scholars.[11]

Given the national consequences of Moore v. Harper, however, the state court decision Harper III has been largely ignored. While this oversight is understandable, an examination of the North Carolina Supreme Court’s opinion in the case yields vital insight into the ways in which state courts can hide behind a veneer of judicial independence while actually using state politics and polarization to reshape state law. This insight may yield immediate practical consequences given that partisan gerrymandering litigation is currently ongoing in approximately one-third of the states.[12]

The dissent in Harper III provides a searing indictment of the majority’s reasoning and sets forth a cogent argument explaining why the opinion is an incorrect interpretation of the North Carolina constitution. The analysis that follows in this Essay will not rehearse the persuasive criticisms leveled by the dissent. Rather, it will focus on two ways in which the majority opinion may provide insight into how state courts can use the traditional tools of judicial review to reshape a state’s political culture. After providing a brief sketch of the procedural history of Harper I, II, and III in Part I, Part II of this Essay then explores the ways in which the opinion attempts to enshrine an exceptionally narrow vision of originalism as the only acceptable method of interpreting North Carolina’s constitution. Part III criticizes the way in which the Harper III majority further entrenches an incorrect understanding of political accountability.

While the examination below is limited to the rhetoric and reasoning employed by the North Carolina Supreme Court, it should serve as a case study for how easy it can be for state courts to affect a state’s political and policy landscape without attracting much notice.

I. The Procedural Path

A quick (and by no means exhaustive) recap of the procedural history of the Harper opinions will illuminate the unusual issues created by the state court’s recent ruling and facilitate the discussion that follows. The litigation began after the North Carolina General Assembly issued a new districting map after the 2020 census.[13] Multiple parties filed suit alleging inter alia that the map employed unconstitutional partisan gerrymanders in violation of the North Carolina Constitution’s guarantee of free elections and the state’s equal protection clause.[14] In January 2022, a three-judge panel of the Wake County Superior Court ruled that partisan gerrymandering claims “presen[t] nonjusticiable, political questions” under the state constitution.[15]

Less than a month later, the state supreme court heard the case directly and reversed the lower court’s ruling.[16] The 4-3 majority in what would become known as Harper I held that partisan gerrymandering claims are justiciable and the “extreme” gerrymanders in the challenged districting map violated the state constitution’s free elections clause, equal protection clause, free speech clause, and freedom of assembly clause.[17]

While the state legislature proceeded to draft new districting maps to comply with Harper I, the litigation continued, and the U.S. Supreme Court agreed to hear a challenge to this ruling under the name Moore v. Harper.[18] The Supreme Court case garnered national attention, in part, because the petitioners advanced arguments under the Independent State Legislature Theory. The Independent State Legislature Theory posits that only the state legislature has any say in federal elections[19] because the Elections Clause of the U.S. Constitution instructs that “The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof.”[20] Put another way, the state constitution itself places no limits on the legislature’s ability to regulate federal elections leaving state courts with no authority to interpret state constitutional provisions in order to second guess election related legislation.

But while the U.S. Supreme Court litigation proceeded, various parties challenged the second districting map that the legislature drafted in response to Harper I and the case made its way back to the state supreme court.[21] In a December 2022 opinion, now known as Harper II[22], the same 4-3 majority that issued the Harper I opinion ruled that the map for the state house was constitutionally adequate but the maps for the state senate and the federal congressional districts still contained unconstitutional partisan gerrymanders.[23]

In between oral arguments in Harper II and the issuance of the opinion, the North Carlina midterm elections occurred.[24] North Carolina’s supreme court justices are elected in partisan contests, and two of the Democratic justices who had signed on to the Harper II majority were replaced by conservative challengers.[25] As a result of this change in personnel, the new 5-2 conservative majority expressed concern that the Harper II majority had “overlooked or misapprehended” a point “of fact or law,”[26] and granted a petition for rehearing.[27]

On April 28, 2023 this newly minted majority “withdrew” Harper II and “overruled” Harper I, finding that partisan gerrymandering claims presented a nonjusticiable political question.[28] The U.S. Supreme Court then issued its opinion in Moore v. Harper on June 27, 2023.[29] The majority opinion determined that the Court still had standing to decide the initial case but affirmed the Harper I decision.[30] In doing so, the Court rejected the state defendants’ primary legal argument regarding the Elections Clause and reaffirmed that “[t]he Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”[31] The Court did, however, reserve for itself the right to pass judgment on whether state courts correctly interpreted questions of state election law under state constitutions,[32] a significant increase in the Court’s review of state election laws.[33]

With this procedural sketch in place, this Essay now returns to its primary focus: an examination of the warning signs advocates, policymakers, and public law scholars should glean from the North Carolina Supreme Court’s opinion in Harper III. As discussed in the introduction, the focus of this examination will not be on the merits of the majority opinion as the dissent has already done an admirable job dissecting that on its own terms.[34] Instead, the remainder of this Essay delves into the more far-reaching consequences of the opinion. Though the ramifications of the majority’s opinion are limited to North Carolina, they provide a cautionary tale for the ways in which state courts—particularly those with elected judges—can involve the judiciary in the political fortunes of the state.

II. Regressive Originalism

Perhaps the most sweeping consequence of the opinion may be the majority’s efforts to enshrine originalism (and a crabbed version of originalism, at that) as the only acceptable methodology of constitutional interpretation.[35] From the first few pages, Harper III makes this view of constitutional interpretation clear. For example, on the second page of the opinion, the majority writes: “As the courts apply the constitutional text, judicial interpretations of that text should consistently reflect what the people agreed the text meant when they adopted it.”[36] This appeal to the original public meaning[37] of the state’s constitution returns time and again throughout the opinion, including the following concluding admonition: “Recently, this Court has strayed from this historic method of interpretation to one where the majority of justices insert their own opinions and effectively rewrite the constitution.”[38] This language makes clear that the current majority of the North Carolina Supreme Court views originalism as the only legitimate method of constitutional interpretation.

The current state court majority is not alone in its application of originalist methodology, nor unique in its attempts to privilege this school of constitutional interpretation above all others.[39] Nor is an originalist approach to interpreting the North Carolina constitution without precedent.[40] The version of originalist methodology operationalized in the Harper III opinion, however, is surprisingly (almost shockingly) pernicious.

As an initial matter, the majority seems to advocate for both original public meaning originalism and original intent originalism, despite the latter theory having been all but (though not entirely)[41] abandoned by originalism’s defenders.[42] In its introduction, for example, the majority insists that “judicial interpretations of [constitutional] text should consistently reflect what the people agreed the text meant when they adopted it”—a classic formulation of original public meaning originalism.[43] But when returning to a discussion of constitutional interpretation, the majority seems to urge an “original intent” approach, asserting that “courts determine the meaning of a constitutional provision by discerning the intent of its drafters when they adopted it.”[44]

The reliance on this largely abandoned[45] version of originalism is only one example of how the Harper III majority is attempting to mandate not just originalism, but a regressive vision of originalism. By focusing on the actual intent of the drafters of the document, a court limits the potential interpretations of a constitution to the world view of individuals at a fixed point in time—a world view that is in many ways incompatible with the present day. Additionally, by employing both original intent originalism and original public meaning originalism, the Harper III majority can switch back and forth between whichever methodology best supports its desired result, eliminating originalism’s supposed virtue of constraining judicial discretion.[46]

Nor does the majority escape the “law office historian” pitfalls that plague many originalist opinions.[47] For example, the court devotes several pages to recounting the history of the Glorious Revolution in a befuddling attempt to show that the state constitutional clauses cited by the plaintiffs in the underlying cases were directed at protecting North Carolinians from voting regulations designed to benefit the king.[48] As an initial matter, this history says nothing about the clauses’ relationship to gerrymandering—again, a phenomenon that was not even in the lexicon for more than a century.[49] But even taking the majority’s argument on its own terms, the historical narrative provided arguably supports applying the free elections clause to partisan gerrymandering rather than undermining such an interpretation.[50] The majority declares, for example, that one reason for the prohibition on dividing counties to make new districts comes in part from King James II’s practices of “adjusting a county’s or borough’s charter to embed the king’s agents and ensure a favorable outcome for the king in the 1685 election.”[51] The majority reiterates that “[i]n some instances these adjustments altered who could vote in order to limit the franchise to those most likely to support the king’s preferred candidates.”[52] But this type of result-oriented intervention is exactly the reason parties challenge partisan gerrymanders.

But beyond succumbing to these more common problems with originalist methodology, the majority also employs a particularly rigid approach to originalism that would severely inhibit applications of the state constitution to modern developments. The most plausible reading of the majority’s analysis of whether the constitution applies to partisan gerrymandering, for example, is that the state constitution is essentially irrelevant to any subject not explicitly discussed.[53] Because the constitution does not mention gerrymandering, the majority says, that document is irrelevant to evaluating any gerrymandering challenges.[54] But even staunch originalists like Ilan Wurman accept that applying the original meaning of the text does not mean that a constitution must anticipate and discuss every eventuality in order to apply to the subject at hand.[55] The fact that the U.S. Constitution makes no mention of the internet, for example, does not prevent originalists from agreeing that the protections of the First Amendment apply to this 21st century medium.[56]

In support of this tightly cabined interpretation of the state constitution, the majority highlights a case from the 1780s striking down a statute that directly conflicted with the then governing constitution by eliminating the right to a jury trial in cases where the state confiscated loyalist property.[57] The constitution at the time promised a jury trial “in all Controversies at Law respecting property.”[58] But simply because the first statute, which was deemed unconstitutional in the state, directly conflicted with express language in the constitution does not impose a lasting and immovable requirement that judicial review of a legislative act is permissible only if the constitution speaks directly to the subject at hand.[59]

The majority even attempts to graft on some version of this explicit language requirement to its discussion of the U.S. Constitution, asserting that the lack of any specific mention of partisan gerrymandering in that document demonstrates the framers’ intent to exclude the federal courts from any such oversight. The majority further claims that “[t]he framers could have limited partisan gerrymandering in the [U.S.] Constitution or assigned federal courts a role in policing it, but they did not.”[60] To take this statement at face value shows the absurdity that this explicit acknowledgement requirement would impose.[61] The term “gerrymander” did not even exist until more than two decades after the U.S. Constitution was ratified.[62] Nor did the U.S. Constitution make any mention of “partisanship” (or “factionalism” as this concept was more commonly called at the time) because one of the goals of the famers was to avoid factional divisions.[63]

The end result of this interpretative approach is that the majority seems far too comfortable with an interpretation of the North Carolina constitution that reflects a polity of exclusion. The opinion at one point even asserts that because the original understanding of the state constitution’s “free elections” clause still limited the franchise to land-holding “freemen,” the clause cannot be construed to prohibit limitations on voting rights beyond coercion and intimidation.[64] An application of such a regressive version of originalism is especially misplaced in deciding questions relating to elections based on a constitutional text ratified when the franchise was extremely limited. The majority, for example, argues that because the original North Carolina Constitution adopted in 1776 contained free elections and freedom of assembly clauses while still allowing the legislature to draw malapportioned districting maps, these same clauses should not be used to restrict legislative map drawing today.[65] But this rationale would also allow election regulations that discriminated on the basis of race, gender, sexual orientation, and even status as a property owner, as long as subsequent amendments did not address the specific types of discriminatory regulations employed. Indeed, the Harper III majority simply ignores fundamental developments in both federal and state constitutional law that took place after the ratification of the state’s first constitution—ignoring the fact that North Carolina adopted a new constitution in 1868 and again in 1971 and has significantly amended the document in the last two centuries.[66]

Even when the majority makes general assertions of law, it relies on authority that further illustrates the regressive results of the justices’ chosen interpretive methodology. The majority, for example, cites to a 1944 case, State v. Emery,[67] to support its assertion that “[constitutions] should receive a consistent and uniform construction . . . even though circumstances may have so changed as to render a different construction desirable.”[68] But the “consistent and uniform construction” urged by the court in Emery enshrined the barring of women from serving as jurors in the state based on language in the then governing constitution stating that “[n]o person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men in open court.”[69] To be clear, the majority does not endorse (or even mention) the holding of Emery, but it is telling that the vision of originalism espoused by the Harper III opinion is the exact same reading of the state constitution that prohibited women from serving on juries as late as 1944.[70] The fact that this case would be used to support the majority’s preferred methodology when other options are readily available seems questionable.

In a similarly telling choice, the majority issues another generic statement regarding the nature of the state constitution, asserting that the document “‘is in no matter a grant of power.’”[71] This benign quote comes from McIntyre v. Clarkson,[72] but the opinion then traces the origins of this quote to Lassiter v. Northampton County Board of Elections,[73] a 1958 case that upheld North Carolina’s reading requirement at the polls, despite clear evidence that the requirement was used to impede the ability of black North Carolinians to vote.[74] Again, the choice to trace this general point of law to a case upholding racially discriminatory voting laws indicates that the majority is either unaware of, or indifferent to, the regressive results of its methodological approach.[75]

In fact, the majority opinion makes clear that the North Carolina constitution would not ban racial gerrymanders, or any other type of racially motivated voting restrictions, leaving such practices banned only by the U.S. Constitution.[76] The court’s emphasis on requiring an explicit, specific textual restriction in the Constitution leads to a listing of what the majority appears to consider the only permissible avenues for judicial review of legislative districting acts.[77] Notably absent from this list is any prohibition on district maps that discriminate based on race.[78] The opinion also quotes heavily from a prior state supreme court decision, Dickson v. Rucho,[79] to emphasize the difficulty in identifying a judicially manageable standard for evaluating partisan gerrymanders.[80] What goes unmentioned in this discussion, however, is that the U.S. Supreme Court vacated Dickson I because the districting map employed racial gerrymanders as well.[81]

Taken together, the majority’s vision for constitutional interpretation inescapably leads to a regressive application of the state’s constitution. Because the rhetoric here sounds in a traditional application of judicial review, however, the Harper III majority has laid out a blueprint for similarly inclined state court majorities to manipulate theories of constitutional interpretation to essentially control state electoral politics while shielding themselves from political accountability. With this concern in mind, the Essay now turns to an examination of the majority’s misleading invocation of political accountability as justification for its holding.

III. Manipulation of Political Accountability

The other rhetorical move made by the Harper III majority that is likely to have long reaching impact is the weaponization of political accountability. The majority relies on the time honored trope that the state legislature is the true “people’s branch” in state government, asserting from the beginning of the opinion that “[t]he people exercise [the political] power [granted to them by the state constitution] through the legislative branch, which is closest to the people and most accountable through the most frequent elections.”[82] The majority then implicitly ties this version of “accountability” to the state legislature’s ability to implement “the will of the people.”[83]

This lionization of state legislatures as the branch “closest to the people” has been effectively rebutted by legal scholars like Miriam Seifter.[84] As Seifter demonstrates, officials elected in statewide elections are often more representative of the whole people of a state than are state legislators.[85] In North Carolina, the very same justices who disclaim sufficient accountability are all elected statewide.[86] Indeed, it is because of the elected (and partisan) nature of these judicial offices that Harper II was granted a rehearing.[87] So, even from a threshold perspective, the democratic legitimacy foundation for the Harper III opinion is on shaky ground.

But this unsupported trope of American democracy has even less to recommend it in the context of a gerrymandering challenge. The essence of a claim of gerrymandering is that the body elected by the gerrymandered map is unrepresentative of the people.[88] Even a majority of voters cannot effectively hold a gerrymandered legislature “accountable” if the gerrymander is extreme enough to consistently transform minority preference into majority representation.[89] But the Harper III majority ignores this reality, blithely asserting that “those whose power or influence is stripped away by shifting political winds cannot seek a remedy from courts of law, but they must find relief from courts of public opinion in future elections.”[90] Indeed, the majority’s assurances then that “opponents of a redistricting plan are free to vote their opposition,”[91] ring hollow when addressing claims that the redistricting process has effectively undermined the ability of even a majority of voters to hold their legislature “accountable” in the traditional sense.

The Harper III majority also recounts language from Rucho v. Common Cause[92] that reiterates a “long-standing … myth[] about the rational, policy-oriented voter.”[93] The majority faults the Harper I opinion for focusing too much on the role of partisan affiliation in elections.[94] The opinion confidently asserts, for example, that “voters elect individual candidates in individual districts, and their selections depend on the issues that matter to them, the quality of the candidates, the tone of the candidates’ campaigns, the performance of an incumbent, national events or local issues that drive voter turnout, and other considerations.”[95] But, as I have written previously, much of modern political science literature documenting voter behavior indicates that voters are not nearly this nuanced, and instead partisan affiliation is a far better predictor of voter behavior than any of the factors identified in Rucho and parroted in Harper III.[96]

The majority quotes freely from Rucho and incorporates much of that decision’s language cautioning against involving the “unaccountable” federal judiciary against involving itself in the inherently political redistricting process.[97] Regardless of one’s views on the correctness of Rucho, it is clear that the accountability concerns discussed in the case stem from the federal judiciary’s position as an unelected branch of government.[98] Indeed, the connection between political accountability and the unelected nature of the federal judiciary is quoted in full by the Harper III majority: “Consideration of the impact of today’s ruling on democratic principles cannot ignore the effect of the unelected and politically unaccountable branch of the Federal Government assuming such an extraordinary and unprecedented role.”[99]

But recall that almost the entire North Carolina judiciary, including the justices of the state supreme court, are elected.[100] The Justices in particular, are elected statewide and are not subject to the gerrymandered districting maps.[101] As noted above, this makes them, arguably, more accountable to the people of North Carolina because the statewide election better reflects the full electorate than does a manipulated state legislature district.[102] Nor are these elected judges above the political fray because they are chosen in partisan elections appearing on the ballot with their party affiliation clearly identified.[103] The Harper III majority cautions against involving the judiciary in “[c]hoosing political winners and losers” because doing so “creates a perception that the courts are another political branch.”[104] But in North Carolina, the judiciary is, arguably, a political branch. The state’s justices owe their offices to a political election that is influenced, in part at least, by the partisan, political preferences of the voters.[105] This is not to say that there is no difference between a justice and a legislator. Rather, this criticism demonstrates why the Harper III majority’s reliance on the accountability justifications in Rucho are so misplaced.

The majority leans into this accountability narrative, despite eventually acknowledging the elected nature of the state’s judiciary.[106] Indeed, though still pushing its assertion that the state legislature is the “most accountable” branch of the state government, the majority does recognize that with the implementation of an elected judiciary “judges in North Carolina become directly accountable to the people through elections.”[107] And the Harper III majority itself seems to acknowledge that the judicial elections play (or should play) a role in shaping North Carolina law.[108] One of the criticisms levelled against the Harper II opinion is that the “four-justice majority issued its Harper II opinion on 16 December 2022 [after the most recent judicial election] when it knew that two members of its majority would complete their terms on this Court just fifteen days later.”[109] It is hard to read this statement as anything other than a concession that a change in the partisan makeup on the court would (and should) change the outcome of cases.

Yet the majority consistently focuses on the supposed dangers posed to the separation of powers by involving the judiciary in “policymaking.”[110] The majority insists, for example, that the lack of an explicit reference to gerrymandering means that any court exercising judicial review of a gerrymandered map is engaged in policymaking.[111] Such judicial policymaking, we are told, “usurps the role of the legislature by deferring to [the court’s] own preferences instead of the discretion of the people’s chosen representative.”[112]

But, in addition to the unsound political accountability foundation for this view of the role of an elected judiciary, the majority’s vision of “policymaking” ignores the reality that the decision to close the courthouse doors to partisan gerrymandering claims is also a policy choice.

In refusing to apply the state constitution’s equal protection clause to partisan gerrymandering claims, for example, the majority asserts that “the fundamental right to vote on equal terms simply means that each voter must have the same weight.”[113] The court dismisses any independent application of the clause to elections by claiming that any equal protection concerns raised by election procedures are fully addressed by the requirements in Article II that each state legislator “represent, as nearly as may be, an equal number of inhabitants.”[114] But, by insisting that the state constitution’s equal protection clause only addresses the “weight” of each individual vote, and by taking a step further and confining “weight” to only the number of voters represented by each representative, the majority is engaging in exactly the same type of policymaking it claims made the Harper I and Harper II decisions illegitimate.

The inconsistent, almost incoherent ways in which the Harper III majority has employed discredited myths about political accountability and the role of an elected judiciary will impact election law and constitutional interpretation in North Carolina far beyond the holding of the case. With more than three quarters of states employing at least some form of elections as part of their judicial selection process,[115] a failure to confront the realities of an elected judiciary will continue to leave open opportunities for state courts to employ fantasies of political accountability to reshape their state’s political processes. While acknowledging the political nature of an elected judiciary may not stop state courts from reaching their desired results, it will at least require state judiciaries to honestly assess their own political role in deciding separation of powers disputes.

Conclusion

While the U.S. Supreme Court’s opinion in Moore v. Harper captured national attention, the Harper III majority also rejected the broadest version of the Independent State Legislature Theory advanced in the Moore briefing. In doing so, the majority recognizes that the courts—and by implication the state constitution—do have some role to play in the districting process: “Under the North Carolina Constitution, redistricting is explicitly and exclusively committed to the General Assembly by the text of the constitution. The Executive branch has no role in the redistricting process, and the role of the judicial branch is limited by the principles of judicial review.”[116] But, as with the opinion in Moore, the majority opinion in Harper III will have a longer reach beyond a specific holding on partisan gerrymandering.

This Essay has specifically focused on the adoption of a regressive form of originalism, which ultimately results in a polity of exclusion and inhibits the court’s potential to employ the state constitution in addressing contemporary challenges. The Harper III majority’s reliance on a rigid and outdated version of originalism is deeply troubling. By adhering to a carefully crafted quasihistorical context that fails to account for societal evolution and progress, the state court disregards the dynamic nature of constitutional principles. And the majority’s willingness to interpret the state constitution in an intentionally exclusionary way will continue to echo through the court’s jurisprudence.

The Essay has also demonstrated the danger of relying on “mythical” notions of political accountability. The majority’s use of these largely unrealistic tropes to decry judicial policymaking, while conveniently overlooking the fact that the North Carolina judiciary is elected and therefore accountable to the public, highlights the ways in which state courts can weaponize accountability not just in North Carolina, but nationwide. As of July of this year, litigation around partisan gerrymandering is ongoing in at least seventeen states.[117] Because the Supreme Court has closed the door on such claims under federal law, state courts remain the only viable venue to address partisan gerrymanders.[118] Left unchecked, the Harper III opinion provides a dangerous blueprint—regressive originalism and unsubstantiated notions of political accountability—that state courts may apply to these claims in ways that will significantly influence state election processes (and likely results) for the foreseeable future.

Election law, constitutional law, and federalism scholars should take note of the jurisprudential tactics employed in the Harper III majority as they continue to work to protect American democracy.

  1. *. Assistant Professor of Law at University of Nebraska College of Law. Many thanks to Anna Arons, Eric Berger, Kristen Blankley, Tyler Rose Clemons, Haiyun Damon-Feng, Dorien Ediger-Soto, Danielle C. Jefferis, Kyle Langvardt, Elise Maizel, Matthew Schaefer, and the members of the University of Nebraska College of Law Faculty Workshop for their thoughts and comments. ↑

  2. . See, e.g., Derek Muller, What happens to Moore v. Harper after the latest North Carolina Supreme Court decision in the partisan gerrymandering case?, Election Law Blog (Apr. 28, 2023, 10:04 AM), https://electionlawblog.org/?p=135865. ↑

  3. . Harper v. Hall, 886 S.E.2d 393 (N.C. 2023) (hereinafter “Harper III”). ↑

  4. . Harper v. Hall, 868 S.E.2d 499 (N.C. 2022) (hereinafter “Harper I”) (overruled by Harper III, 886 S.E.2d 393). ↑

  5. . Harper III, 886 S.E.2d 393. ↑

  6. . See, e.g., Muller, supra note 1. ↑

  7. . See, e.g., Hansi Lo Wang, A North Carolina court overrules itself in a case tied to a disputed election theory, NPR (Apr. 28, 2023, 12:25 PM), https://www.npr.org/2023/04/28/1164942998/moore-v-harper-north-carolina-supreme-court. ↑

  8. . 143 S. Ct. 2065 (2023). ↑

  9. . See, e.g., Rick Hasen, Separating Spin from Reality in the Supreme Court’s Moore v. Harper Case: What Does It Really Mean for American Democracy and What Does It Say About the Supreme Court?, Election Law Blog (June 27, 2023, 3:29 PM), https://electionlawblog.org/?p=137129. ↑

  10. . See e.g., id. ↑

  11. . See e.g., id. ↑

  12. . Redistricting Litigation Roundup, Brennan Center for Justice (updated July 7, 2023), https://www.brennancenter.org/our-work/research-reports/redistricting-litigation-roundup-0. ↑

  13. . Harper III, 886 S.E.2d at 401. ↑

  14. . Id. ↑

  15. . Id. at 402. ↑

  16. . Id. at 403. ↑

  17. . Harper I, 868 S.E.2d at 559. ↑

  18. . 142 S. Ct. 2901 (2022) (mem.). ↑

  19. . See Brandon J. Johnson, The Accountability-Accessibility Disconnect, 58 Wake Forest L. Rev. 65, 90 (2023). ↑

  20. . U.S. Const. art. I, § 4, cl. 1. ↑

  21. . Harper III, 886 S.E.2d at 408. ↑

  22. . 881 S.E.2d 156 (2022) (hereinafter “Harper II”). ↑

  23. . Id. at 181. ↑

  24. . See Ethan E. Horton & Eliza Benbow, Two Republicans Win Seats On The NC Supreme Court, Flipping Majority, The Daily Tar Heel (Nov. 9, 2022), https://www.dailytarheel.com/article/2022/11/city-nc-supreme-court-2022-election-results. ↑

  25. . Id. ↑

  26. . Harper III, 886 S.E.2d at 399–400 (quoting N.C. R. App. P. 31(a)). ↑

  27. . Id. at 409. ↑

  28. . Id. at 401. ↑

  29. . 143 S.Ct. 2065 (2023). ↑

  30. . Id. at 2079, 2081. ↑

  31. . Id. at 2081. ↑

  32. . Id. at 2088. ↑

  33. . See Hasen, supra, note 8. ↑

  34. . Harper III, 886 S.E.2d at 449–78 (Earls, J., dissenting). ↑

  35. . Keith E. Whittington, Originalism: A Critical Introduction, 82 Fordham L. Rev. 375, 377 (2013) (“At its most basic, originalism argues that the discoverable public meaning of the Constitution at the time of its initial adoption should be regarded as authoritative for purposes of later constitutional interpretation.”). ↑

  36. . Harper III, 886 S.E.2d at 399. ↑

  37. . Whittington, supra note 34, at 380 (“Originalist theory has now largely coalesced around original public meaning as the proper object of interpretive inquiry.”). ↑

  38. . Harper III, 886 S.E.2d at 448. ↑

  39. . See, e.g., New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2130 (2022) (“[R]eliance on history to inform the meaning of constitutional text—especially text meant to codify a pre-existing right—is, in our view, more legitimate, and more administrable, than asking judges to ‘make difficult empirical judgments’ about ‘the costs and benefits of firearms restrictions,’ especially given their ‘lack [of] expertise’ in the field.” (quoting McDonald v. Chicago, 561 U.S. 742, 790–91 (2010))). ↑

  40. . See Harper III, 886 S.E.2d at 412–14 (collecting cases). ↑

  41. . See, e.g., Scott A. Boykin, Original-Intent Originalism: A Reformulation and Defense, 60 Washburn L.J. 245 (2021). ↑

  42. . Id. at 246. ↑

  43. . Harper III, 886 S.E.2d at 399. ↑

  44. . Id. at 431. ↑

  45. . See Whittington, supra note 34, at 382. ↑

  46. . See, e.g., Lawrence B. Solum, The Constraint Principle: Original Meaning and Constitutional Practice (2019) (asserting that “constraint” is a virtue agreed upon by most strands of originalist scholarship); but see William Baude, Originalism as a Constraint on Judges, 84 U. Chi. L. Rev. 2213, 2214 (2018) (claiming that “originalist scholars today are much more equivocal about the importance and nature of constraining judges”). ↑

  47. . See, e.g., Saul Cornell, Heller, New Originalism, and Law Office History: Meet the New Boss, Same as the Old Boss, 56 UCLA L. Rev. 1095 (2009). ↑

  48. . Harper III, 886 S.E.2d.at 434–38. ↑

  49. . See Erick Trickey, Where Did the Term “Gerrymander” Come From?, Smithsonian Mag. (July 20, 2017), https://www.smithsonianmag.com/history/where-did-term-gerrymander-come-180964118/. ↑

  50. . Harper III, 886 S.E. 2d at 434–38. ↑

  51. . Id. at 435 (emphasis added). ↑

  52. . Id. (emphasis added). ↑

  53. . See Harper III, 886 S.E.2d at 415 (“When we cannot locate an express, textual limitation on the legislature, the issue at hand may involve a political question that is better suited for resolution by the policymaking branch.”). ↑

  54. . See, e.g., Harper III, 886 S.E.2d at 400 (emphasis added) (“Our constitution expressly assigns the redistricting authority to the General Assembly subject to explicit limitations in the text. Those limitations do not address partisan gerrymandering. It is not within the authority of this Court to amend the constitution to create such limitations on a responsibility that is textually assigned to another branch.”). ↑

  55. . Ilan Wurman, What is originalism? Debunking the myths, The Conversation (Oct. 24, 2020, 12:03 PM), https://theconversation.com/what-is-originalism-debunking-the-myths-148488. ↑

  56. . Neil M. Gorsuch, Justice Neil Gorsuch: Why Originalism Is the Best Approach to the Constitution, Time (Sept. 6, 2019, 8:00 AM), https://time.com/5670400/justice-neil-gorsuch-why-originalism-is-the-best-approach-to-the-constitution/. ↑

  57. . Harper III, 886 S.E.2d. at 415 (citing Bayard v. Singleton, 1 N.C. (Mart.) 5 (1787)). ↑

  58. . Id. (quoting N.C. Const. of 1776, Declaration of Rights § XIV). ↑

  59. . As the majority acknowledges, Bayard was the first exercise of judicial review of a statute in North Carolina, and may have been the first instance of a state court striking down a legislative act as contrary to the jurisdiction’s constitution. Id. ↑

  60. . Id. at 410. ↑

  61. . Id. at 415 (emphasis added) (“[T]he standard of review asks whether the redistricting plans drawn by the General Assembly, which are presumed constitutional, violate an express provision of the constitution beyond a reasonable doubt.”). ↑

  62. . Trickey, supra note 48. ↑

  63. . See, e.g., The Federalist No. 10 (James Madison). ↑

  64. . See Harper III, 886 S.E.2d at 432–33. ↑

  65. . Id. at 416–17. ↑

  66. . Dr. Troy L. Kickler, North Carolina Constitution Is an Important Governing Document, N.C. Hist. Project, https://northcarolinahistory.org/encyclopedia/1573/ (last visited Sept. 17, 2023). ↑

  67. . 31 S.E.2d 858 (N.C. 1944). ↑

  68. . Harper III, 886 S.E.2d at 413 (alterations and omissions in Harper III) (quoting State v. Emery, 31 S.E.2d 858, 861 (N.C. 1944)). Notably, the omitted language from the quote would seem to caution against the majority’s decision to reverse a previous pronouncement of constitutional law. The full quote reads: “[Constitutions] should receive a consistent and uniform construction so as not to be given one meaning at one time and another meaning at another time even though circumstances may have so changed as to render a different construction desirable.” Emery, 31 S.E.2d at 861 (emphasized language was omitted from the quote in Harper III). ↑

  69. . N.C. Const. art. I, § 13 (1868) (emphasis added). ↑

  70. . Harper III, 886 S.E.2d at 413; Emery, 31 S.E.2d at 866. ↑

  71. . Harper III, 886 S.E.2d at 414 (quoting McIntyre v. Clarkson, 119 S.E.2d 888, 891 (1961)). ↑

  72. . 119 S.E.2d at 891. ↑

  73. . 102 S.E.2d 853, 861 (N.C. 1958). ↑

  74. . Paul Woolverton, Democrats in 1900 made the NC Constitution racist: Will voters today undo that?, Fayetteville Observer (Mar. 24, 2023, 5:06 AM), https://www.fayobserver.com/story/news/2023/03/24/ncs-constitution-has-a-racist-rule-will-voters-repeal-literacy-tests/70035467007/. ↑

  75. . For further discussion of the morality of case citations—specifically in the context of citing to slave cases—see Alexander Walker III, On Taboos, Morality, and Bluebook Citations, Harv. L. Rev. Blog (June 10, 2023). ↑

  76. . Compare Harper III, 886 S.E.2d at 449 (holding that “claims of partisan gerrymandering present nonjusticiable, political questions”), with Miller v. Johnson, 515 U.S. 900, 927–28 (holding that redistricting plans aiming to racially segregate voters are federally unconstitutional). ↑

  77. . Harper III, 886 S.E.2d at 418 (quoting N.C. Const. art. II, § 3). The only restrictions on apportionment acknowledged by the majority are: (1) state senators must represent a (roughly) equal number of residents; (2) districts must be contiguous; (3); a prohibition on dividing counties to form a new district; and (4) a requirement that districts “remain unaltered” between censuses. Id. ↑

  78. . See id. ↑

  79. . 766 S.E.2d 238 (N.C. 2014). ↑

  80. . See, e.g., Harper III, 886 S.E.2d at 402 (quoting Dickson, 766 S.E.2d at 260). ↑

  81. . See Dickson v. Rucho, 137 S. Ct. 2186 (2017) (mem.). The Harper III opinion notes that the state court decision was vacated, but only using the euphemistic language “vacated on federal grounds.” See Harper III, 886 S.E.2d at 402. ↑

  82. . Harper III, 886 S.E.2d at 398. ↑

  83. . Id. at 398–99. The opinion returns to this theme of identifying the General Assembly as “the people’s branch” of state government. See, e.g., id. at 413 (“The legislative power is vested in the General Assembly, so called because all the people are present there in the persons of their representatives.” (quoting John V. Orth & Paul Martin Newby, The North Carolina State Constitution 95 (2d ed. 2013))); id. at 414 (citations omitted) (“Most accountable to the people, through the most frequent elections, “[t]he legislative branch of government is without question ‘the policy-making agency of our government[.]’” (quoting N.C. Const. art II)). ↑

  84. . Miriam Seifter, Countermajoritarian Legislatures, 121 Colum. L. Rev. 1733, 1755–77 (2021); see also Johnson, supra note 18, at 101–02. ↑

  85. . Seifter, supra note 83, at 1762–77. ↑

  86. . N.C. Const. art IV, § 16. ↑

  87. . See supra Part I. ↑

  88. . See Kevin Wender, The “Whip Hand”: Congress’s Elections Clause Power as the Last Hope for Redistricting Reform After Rucho, 88 Fordham L. Rev. 2085, 2090 (2020). ↑

  89. . For a discussion of the difficulty voters face in using the political process to change election laws, see Johnson, supra note 18, at 109. ↑

  90. . Harper III, 886 S.E.2d 393, 423 (N.C. 2023) (quoting Dickson v. Rucho, Nos. 11-CVS-16896, 11-CVS-16940, 2013 WL 3376658, at *1–2 (N.C. Super. Ct. Wake Cnty. July 8, 2013)). ↑

  91. . Id. at 443. ↑

  92. . 139 S. Ct. 2484 (2019). ↑

  93. . Johnson, supra note 18, at 103. ↑

  94. . See Harper III, 886 S.E.2d at 428. ↑

  95. . Harper III, 886 S.E.2d at 412 (quoting Rucho v. Common Cause, 139 S. Ct. 2484, 2503–04 (2019)). The majority repeats these assertions, again without providing any empirical support for this view of voter behavior. Id. at 428–29. ↑

  96. . Johnson, supra note 18, at 104–05. ↑

  97. . See, e.g., Harper III, 886 S.E.2d at 413 (quoting Rucho, 139 S. Ct. at 2507). ↑

  98. . See Rucho, 139 S. Ct. at 2507. ↑

  99. . Harper III, 886 S.E.2d 393, 413 (N.C. 2023) (quoting Rucho, 139 S. Ct. at 2507); see also id. at 427 (alteration in original) (“A judicially discoverable and manageable standard is necessary for resolving a redistricting issue because such a standard ‘meaningfully constrain[s] the discretion of the courts[] and [] win[s] public acceptance for the court’s intrusion into a process that is the very foundation of democratic decision making.’” (quoting Rucho, 139 S. Ct. at 2500)). ↑

  100. . N.C. Const. art IV, §16. ↑

  101. . Id. ↑

  102. . See Seifter, supra note 83, at 1734–41. ↑

  103. . See, e.g., Judicial voter guide: 2022 primary election, North Carolina State Board of Elections, (last visited Sept. 17, 2023), https://www.ncsbe.gov/judicial-voter-guide-2022-primary-election. ↑

  104. . Harper III, 886 S.E.2d at 399. ↑

  105. . See Nat Stern, Don’t Answer That: Revisiting the Political Question Doctrine in State Court, 21 U. Pa. J. Const. L. 153, 177–78 (2018) (observing that elected state court judges do not enjoy the same presumption of judicial independence that attaches to the federal judiciary). ↑

  106. . Harper III, 886 S.E.2d at 418. ↑

  107. . Id. (citing N.C. Const. of 1868, art IV, § 26). ↑

  108. . Id. at 413–14. ↑

  109. . Id. at 407 n.5. ↑

  110. . See, e.g., Harper III, 886 S.E.2d at 399, 415, 431. The majority also ignores the differences between the ways in which power is separated at the state level instead of the federal level. For further discussion of these differences, see Robert F. Williams, The Law of American State Constitutions 238 (2009) and Helen Hershkoff, State Courts and the “Passive Virtues”: Rethinking the Judicial Function, 114 Harv. L. Rev. 1833 (2001). ↑

  111. . See Harper III, 886 S.E.2d at 428 (“[S]ince the state constitution does not mention partisan gerrymandering, the four justices in Harper I first had to make a policy decision that the state constitution prohibits a certain level of partisan gerrymandering.”). ↑

  112. . Id. at 431. ↑

  113. . Id. at 440. ↑

  114. . Id. at 442 (quoting N.C. Const. art. II, §§ 3(1), 5(1)). ↑

  115. . Significant Figures in Judicial Selection, Brennan Ctr. for Just. (Apr. 14, 2023), https://www.brennancenter.org/our-work/research-reports/significant-figures-judicial-selection. ↑

  116. . Harper III, 886 S.E.2d at 416. ↑

  117. . Redistricting Litigation Roundup, Brennan Ctr. for Just., https://www.brennancenter.org/our-work/research-reports/redistricting-litigation-roundup-0 (July 7, 2023). ↑

  118. . See generally Rucho v. Common Cause, 139 S. Ct. 2484 (2019) (holding that challenges to partisan gerrymandering are to be made under state statutes and state constitutions—not the U.S. Constitution); see also Alicia Bannon, North Carolina Supreme Court Unleashes Partisan Gerrymandering, Brennan Ctr. For Just. (May 10, 2023), https://www.brennancenter.org/our-work/analysis-opinion/north-carolina-supreme-court-unleashes-partisan-gerrymandering. ↑

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16Nov

The Ongoing Debate Between Boaters Freedom of Navigation and NOAA’s Conservation Efforts to Protect The North Atlantic Right Whale

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By Alexander Van Zijl

The Origins of NOAA’s North Atlantic Right Whale Regulatory Scheme

On August 1, 2022, the National Oceanic and Atmospheric Administration (“NOAA”) sent shockwaves through the boating community when the agency decided to further protect the endangered North Atlantic right whale by proposing an amendment to 50 C.F.R. § 224.105.[1] In 2008, NOAA adopted 50 C.F.R. § 224.105 to “reduce the incidence and severity of ship collisions with North Atlantic right whales.”[2] NOAA wished to achieve its remedial goals by preventing vessels longer than sixty-five feet from going faster than ten knots in designated seasonal management areas along the East Coast.[3] The regulation would only apply during a specific range of months, generally between November and April, with some variation in specific zones.[4] The rule provided an exemption for Federal, State, and foreign vessels.[5]

Environmental Groups Pressure to Amend 50 C.F.R. § 224.105

However, since 2008 there has been a push by environmental groups to expand the protections of the 2008 rule for the remaining 400 North Atlantic right whales.[6] In 2020, Whale and Dolphin Conservation, and multiple other conversation groups filed a legal petition asking NOAA to expand the area and times of the current rule and reduce the size of the vessels to below sixty-five feet.[7] The groups argued that since 2017, thirty-one North Atlantic right whales had died, half of which occurred from fishing gear entanglement and vessel strikes.[8] NOAA failed to act on either of the petitions. In response, on January 13, 2021, the Conversation groups filed a Complaint for Declaratory and Injunctive Relief in the United States District Court for the District of Columbia.[9] The plaintiffs argued that the agency’s response to the 2012 and 2020 petitions had been unreasonably delayed and the court should compel NOAA to respond.[10] NOAA argued that they had provided an adequate response in a letter sent in March 2021, two months after the suit was filed.[11] The court denied the agency’s motion to dismiss the 2020 petition but granted the motion to dismiss the 2012 petition. [12]

NOAA’s Scientific Justification for its Proposed Amendment to 50 C.F.R. § 224.105

NOAA, either prompted by these environmental groups or from internal agency decisions, decided to amend the 2008 North Atlantic right whale regulation.[13] The agency put forth data from National Marine Fisheries Service, also known as NOAA Fisheries, that the 2008 regulation had reduced North Atlantic right whale strikes.[14] NOAA Fisheries in May 2022 released a technical memorandum that claimed speed reduction could reduce the lethality of whale strikes by 80-90%.[15] The 2008 regulation had reduced whale strikes from “12 during the 10 years prior to the rule’s implementation to 8 in the 10 years.”[16] However, it was impossible to establish “a direct causal link.”[17] Notwithstanding the lack of a causal link, the memo argued that boats below sixty-five feet were an additional cause of whale strikes and that expanding the U.S. speed zones would reduce the “risk of vessel strike mortality by an average of 27.5%.”[18]

On August 1, 2022, NOAA put forward the aforementioned proposed amendment to the 2008 regulation. The proposed amendment argued that the decline of North Atlantic right whale species has been caused by Unusual Mortality Events (“UME”), which included fifty-one mortalities and serious injuries.[19] The agency acknowledged that vessel strikes and entanglement in fishing gear were the two leading causes of whale mortality.[20] NOAA credited human actions as the primary reason for female whale death and the overall decline in population.[21] Mothers and calves were at the highest risk and disproportionally represented in the data because they rest and nurse near the shore close to the water surface.[22] NOAA claimed that five of twelve vessel strikes since 2008 had occurred from vessels under sixty-five feet and that only six of the lethal strikes since 1999 occurred from a vessel going under ten knots (NOAA acknowledge their lack of data on this issue).[23] However, the agency still parroted the same belief that it was “not possible to establish a direct causal link between speed reduction efforts and the relative decline in observed right whale mortality and serious injury events.”[24] But it was possible to establish by the preponderance of the evidence that the speed reductions have helped.[25]

Proposed Regulatory Expansions to 50 C.F.R. § 224.105

Applying the agency’s Vessel Strike Mortality Risk Model, NOAA determined that areas with high density of vessel traffic and North Atlantic right whale population were ripe for regulation.[26] NOAA believed the areas of highest risk ranged from “Mid-Atlantic between Cape Hatteras, North Carolina, and New York, and in relatively shallow waters over the continental shelf.”[27] These areas have more vessels below 65 feet and thus their speed should be limited to less than 10 knots.[28] The new speed restrictions will be applied to the newly defined Seasonal Speed Zones (“SSZs”), which will cover most of the East Coast and span generally from November to April depending on the geographic zone.[29] NOAA believes the expanded zones and reduced speed limits for vessels below sixty-five feet will protect boaters, often injured in collisions, and North Atlantic right whales.[30] The regulation would now apply to boats thirty-five feet or above, affecting 8,500–10,000 vessels, with 80% of these vessels being large recreational boats, 7% being commercial boats, and 6% being passenger boats.[31]

This proposed regulation will provide a speed restriction exception during severe weather events and threats to the health and safety of the passengers.[32] Boaters will have the burden of proving their need for the exception by describing and reporting their reasons for the speed deviations within forty-eight hours to NOAA Fisheries.[33] The same exception from the 2008 regulation applies to Federal, State, and foreign vessels, but reduce speed recommendation may still occur.[34] Enforcement of this regulation will occur under “2020 vessel speed rule assessment (NMFS 2020).”[35] NOAA will also use the Office of Law Enforcement to “track[] vessel speed at sea[,]” begin research on new “vessel tracking technologies,” and start “investigating land-based and aerial monitoring options.”[36] NOAA has “commenced staff level discussions with the U.S. Coast Guard regarding possible modification of current AIS carriage requirements to include additional vessel types and sizes.”[37] NOAA will enforce violations of the speed restrictions through “civil administrative enforcement cases[,]” which will levy “significant monetary penalties.” [38] NOAA may also take a less coercive approach that will achieve compliance via outreach letters sent to noncomplying boaters.[39]

Legal Basis for NOAA’s Proposed Amendment

The legal basis for this regulation is found under the Endangered Species Act and the Marine Mammal Protection Act.[40] Thus, there is a Congressional mandate to protect endangered species, specifically Marine Mammals. [41] NOAA relied upon both statutes’ “take” prohibitions.[42] The Endanger Species Act defined take as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”[43] The Marine Mammals Protection Act defined “take” as to “means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.”[44] When the Endangered Species Act was debated, a Senate Report determined that “‘Take’ is defined in section 3(12) in the broadest possible manner to include every conceivable way in which a person can ‘take’ or attempt to ‘take’ any fish or wildlife.”[45] The agency’s reliance on Endanger Species Act and Marine Mammal Protection Act are reasonable.

Boating Communities’ Negative Response to the Proposed Amendment

However, the boating communities’ backlash from this proposed amendment have been substantial. The boating community has cited the disparity in the number of boating trips to whale hits, increased travel time, and the economic hardship it places on boaters. John Chambers of the American Sportfishing Association claimed the expansion of the regulation will “have huge ramifications for our members and individuals who enjoy spending time on the water.”[46] Mr. Chambers called for a less restrictive measure because of the major economic impact the regulation could have on the boating community.[47] He cited that the heavy-handed regulation was unnecessary because of the disparity between the number of boating trips that occur is upwards of 5.1 million compared to the five whale strikes.[48]

Captain Rick Bellavance, the president of the Rhode Island Party and Charter Boat Association, cited similar arguments “[i]f we’re driving 10 miles an hour instead of 15, that’s 5 miles of travel every hour. It could be a half hour or an hour each day of less fishing and more driving.”[49] Ferry Companies, such as the Block Island ferry, agreed that “daily ferry ride could take upwards of 90 minutes per one-way trip, with a reduced number of trips per day.”[50] John DePersenaire, Viking’s director of government affairs and sustainability, said the regulation “as written, would be the most consequential maritime regulation that we have ever seen imposed on the recreational boating and fishing section.”[51] Mr. DePersenaire cited the economic effect the regulation will have on “boat owners” but especially “marinas, tackle shops, charter boat operators – basically all maritime-related businesses on the Atlantic Coast.”[52] Mr. DePersenaire believes the regulation “compromises [recreational boaters’] maneuverability and overall safety at sea.”[53]

Economic Impact

In 2020, NOAA performed an economic impact analysis on the effect of the 2008 regulation for boats that were longer sixty-five feet.[54] Under the old regulation, the study claimed that the effects on transit time would cost “approximately $28.3 million to $39.4 million annually with commercial shipping industry bears between 74 to 87.”[55] For fishing vessels longer than sixty-five feet, the increased cost from speed limits would be around $147 thousand to $1.3 million per year.[56] However, lowering the size to thirty-five feet will expand the effects on the boating industry. The proposed regulation argues that “a total of 2,524 small entities (individual vessels) would be affected by the proposed rule with an estimated annual cost, as a percentage of revenue, ranging from 0.06% to 2.09%, depending on the vessel type.”[57] To better understand the impact of this regulation the public comment period ran from August 1, 2022, till September 31, and was extended till October 31.[58]

Conclusion

NOAA has shown that it is highly probable that boating has adversely affected the North Atlantic right whale. However, the agency admits that only five of twelve vessel strikes since 2008 have been caused by boats under sixty-five feet, and NOAA has not proven causation connecting speed reduction and whale strikes.[59] Thus, increasing government oversight over boaters seems imprudent when the damage from boats under sixty-five feet is so minor. Mr. Chambers is correct to argue that the proposed amendment is overinclusive. However, it remains to be seen if NOAA will consider the boater’s concerns. NOAA should perform a new economic impact analysis because the proposed amendment will affect 8,500–10,000 thirty-five-plus foot boats making the 2020 economic impact study obsolete.[60] If adopted, this regulation will have a cascading effect on the industry and will touch the entire boating community. Thus, it raises the question: Should the environmental groups and the Federal Government determine how a broad swath of free and independent boaters should navigate?

 

 

  1. Amendments to the North Atlantic Right Whale Vessel Strike Reduction Rule, 87 Fed. Reg. 46923 (proposed Aug. 1 2022) (to be codified at 50 C.F.R. Part 224). ↑

  2. Endangered Fish and Wildlife; Final Rule To Implement Speed Restrictions To Reduce the Threat of Ship Collisions With North Atlantic Right Whales, 73 Fed. Reg. 74003 (proposed December 5, 2008) ( to be codified at 15 C.F.R. Part 902). ↑

  3. 50 C.F.R. § 224.105(a) (2011); DEP’T OF COM., NAT’L OCEANIC & ATMO. ADMIN., Assessing the risk of vessel strike mortality in North Atlantic right whales along the U.S East Coast I (May 2022), https://media.fisheries.noaa.gov/2022-07/Right_Whale_Vessel_Strike_Risk_Assessment_NMFS-SEFSC-757_508.pdf[hereinafter Risk Assessment]; NOAA Fisheries Comp. Guide for Right Whale Ship Strike Reduction Rule, https://www.dco.uscg.mil/Portals/9/DCO%20Documents/5p/CG-5PC/CG-CVC/CVC2/psc/policy/epolicy/nrwhale/Ship_Strike_Reduction_Compliance_Guide.pdf. ↑

  4. 50 C.F.R. § 224.105(1-3) (2011). ↑

  5. Id. at (a). ↑

  6. Kristen Monsell et. al., Vessel Speed Limits Sought to Protect Endangered North Atlantic Right Whales, The Center for Biological Diversity (Aug. 6, 2020), https://biologicaldiversity.org/w/news/press-releases/vessel-speed-limits-sought-protect-endangered-north-atlantic-right-whales-2020-08-06/; Regina Asmutis-Silvia et. al., Federal Proposal Aims to Protect Endangered Right Whales From Ship Strikes, The Center for Biological Diversity (July 29, 2022), https://biologicaldiversity.org/w/news/press-releases/federal-proposal-aims-to-protect-endangered-right-whales-from-ship-strikes-2022-07-29/; Risk Assessment, supra note 3, at 1. ↑

  7. Monsell, supra note 6; see generally Whale and Dolphin Conservation et. al., Petition for Rulemaking to Prevent Deaths and Injuries of Critically Endangered North Atlantic Right Whales from Vessel Strikes 3, 12–23 (Aug. 6, 2020), https://www.biologicaldiversity.org/species/mammals/North_Atlantic_right_whale/pdfs/NARW-Ship-Speed-Petition-08-06-2020.pdf [hereinafter petition]. ↑

  8. Monsell, supra note 6. ↑

  9. Regina Asmutis-Silvia et. al., Feds Sued to Force Them to Protect Endangered North Atlantic Right Whales from Vessel Strikes, The Center for Biological Diversity (Jan. 13, 2021), https://biologicaldiversity.org/w/news/press-releases/feds-sued-force-them-protect-endangered-north-atlantic-right-whales-vessel-strikes-2021-01-13/; Whale & Dolphin Conservation v. Nat’l Marine Fisheries Serv., 573 F. Supp. 3d 175, 178 (D.D.C. 2021). ↑

  10. Whale & Dolphin Conservation v. Nat’l Marine Fisheries Serv., 573 F. Supp. 3d 175, 179 (D.D.C. 2021) ↑

  11. Id. ↑

  12. Id. at 181. ↑

  13. Amendments to the North Atlantic Right Whale Vessel Strike Reduction Rule, 87 Fed. Reg. 46922 (proposed Aug. 1 2022) (to be codified at 50 C.F.R. Part 224). ↑

  14. Id. at 46923–24 ↑

  15. Risk Assessment, supra note 3, at 2. ↑

  16. Id. ↑

  17. Id. ↑

  18. Id at 3, 15. ↑

  19. Amendments to the North Atlantic Right Whale Vessel Strike Reduction Rule, 87 Fed. Reg. 46922 (proposed Aug. 1 2022) (to be codified at 50 C.F.R. Part 224). ↑

  20. Id. ↑

  21. Id. ↑

  22. Id. at 46923‑4. ↑

  23. Id. at 46924. ↑

  24. Id. ↑

  25. Amendments to the North Atlantic Right Whale Vessel Strike Reduction Rule, 87 Fed. Reg. 46924 (proposed Aug. 1 2022) (to be codified at 50 C.F.R. Part 224). ↑

  26. Id. at 46926. ↑

  27. Id. ↑

  28. Id. ↑

  29. Id. ↑

  30. Id. at 46928. ↑

  31. Amendments to the North Atlantic Right Whale Vessel Strike Reduction Rule, 87 Fed. Reg. 46928 (proposed Aug. 1 2022) (to be codified at 50 C.F.R. Part 224). ↑

  32. Id. at 46930. ↑

  33. Id. at 46930–31. ↑

  34. Id. at 46931. ↑

  35. Id. at 46932. ↑

  36. Id. ↑

  37. Amendments to the North Atlantic Right Whale Vessel Strike Reduction Rule, 87 Fed. Reg. 46932 (proposed Aug. 1 2022) (to be codified at 50 C.F.R. Part 224). ↑

  38. Id. ↑

  39. Id. ↑

  40. See 16 U.S.C. §§ 1531, 1538 (a)(1)(B) (Supp. 2020) & 16 U.S.C. §§ 1361, 1372 (a)(1) (Supp. 2020). ↑

  41. 16 U.S.C. § 1531 (b) (Supp. 2020) & 16 U.S.C. § 1361 (1)–(2) (Supp. 2020). ↑

  42. Amendments to the North Atlantic Right Whale Vessel Strike Reduction Rule, 87 Fed. Reg. 46923 (proposed Aug. 1 2022) (to be codified at 50 C.F.R. Part 224). ↑

  43. 16 U.S.C. § 1532 (19) (Supp. 2020). ↑

  44. 16 U.S.C. § 1362 (13) (Supp. 2020). ↑

  45. S. Rep. No. 93-307, at 7 (1973). ↑

  46. Gareth McGrath, Should NC Recreational Boats Have to Slow Down for Endangered Whales? Feds Think So, Star News Online (Sept. 29, 2022, 6:02 AM), https://www.starnewsonline.com/story/news/local/2022/09/29/environmentalist-backed-proposal-force-boaters-slow-protect-endangered-north-atlantic-right-whales/69498327007/. ↑

  47. Id. ↑

  48. Id. ↑

  49. Rob Smith, Vessel Speed Restrictions Proposed for New England Waters to Protect Endangered Right Whales, ecoRI News (Sept. 22, 2022), https://ecori.org/vessel-speed-restrictions-proposed-for-new-england-waters-to-protect-endangered-right-whales/. ↑

  50. Id. ↑

  51. Kirk Moore, Resistance Builds on New Speed Restrictions to Protect Whales, Nat’l Fisherman (Sept. 26, 2022), https://www.nationalfisherman.com/national-international/resistance-builds-on-new-speed-restrictions-to-protect-whales. ↑

  52. Id. ↑

  53. Id. ↑

  54. Indus. Econ., Inc. Econ. Analysis of the North Atlantic Right Whale Vessel Speed Restriction Rule 1-1 (March 2020), https://media.fisheries.noaa.gov/2021-01/FINAL_Appendix_B-Economic_Assessment_of_the_Vessel_Speed_Rule.pdf?null (Report prepared by Industrial Economics, Incorporated for the Office of Protected Resources National Marine Fisheries Service). ↑

  55. Id. at ES-1. ↑

  56. Id. at 3-17. ↑

  57. Amendments to the North Atlantic Right Whale Vessel Strike Reduction Rule, 87 Fed. Reg. 46934 (proposed Aug. 1 2022) (to be codified at 50 C.F.R. Part 224). ↑

  58. Amendments to the North Atlantic Right Whale Vessel Strike Reduction Rule, 87 Fed. Reg. 56925 (proposed Aug. 1 2022) (to be codified at 50 C.F.R. Part 224). ↑

  59. Amendments to the North Atlantic Right Whale Vessel Strike Reduction Rule, 87 Fed. Reg. 46924 (proposed Aug. 1 2022) (to be codified at 50 C.F.R. Part 224). ↑

  60. Id. at 46928. ↑

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4Nov

The Fifth Circuit Finds the Consumer Financial Protection Bureau Unconstitutional

Categories: Current Issues Blog
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By Dylan Ellis

The Consumer Financial Protection Bureau (CFPB) has been one of the most divisive government agencies since its inception in 2010. The CFPB was installed with far greater protections than most government agencies are afforded, including protections against both presidential[1] and congressional[2] influences on the agency’s decision making. As a result, the CFPB has faced multiple challenges against its constitutionality. Most notably in 2020 where the Supreme Court held that the requirement placed on the President which only allowed removal of the lone CFPB Director “for-cause” was an unconstitutional restraint on the separation of powers.[3] The CFPB suffered another judicial defeat on October 19th, 2022, where the Fifth Circuit held that the CFPB’s funding structure is unconstitutional under the Appropriations Clause of the Constitution.[4]

The Unique Funding Structure of the CFPB:

Appropriations allow Congress to exert control over agency action because the expenditure of federal agency monies that come from appropriations are conditioned upon compliance with prescribed policy.[5] Therefore, if Congress disagrees with an agencies activity, it can prohibit the use of appropriated funds for the given activity.[6] When the CFPB was established in the wake of the 2008 financial crisis, Congress believed that the agency could best carry out its mandate of protecting consumers if it were shielded from the political influences of future iterations of Congress.[7] Thus, while most agencies rely on annual appropriations from Congress for their funding, the CFPB does not.

Instead of relying on Congressional appropriations for funding, the CFPB requests from the Federal Reserve an amount determined by its lone Director to be “reasonably necessary to carry out the authorities of the Bureau.”[8] The Federal Reserve must grant the request, so long as the request does not exceed 12% of the total operating expenses of the Federal Reserve.[9] The funds transferred to the CFPB shall not be construed as Government funds or appropriated monies[10] and shall not be subject to review by the Committees on Appropriations of the House of Representatives and the Senate.[11] The Bureau’s ability to fund itself beyond Congress’s appropriation powers lies at the heart of the Fifth Circuit’s finding that the CFPB’s funding structure unconstitutional.[12]

The Fifth Circuit’s Reasoning:

The Court reached its conclusion by finding that the CFPB’s funding structure violates the separation of powers principles set forth in the Appropriations Clause of the Constitution.[13] The Appropriations Clause commands that, “No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” [14] The Supreme Court has interpreted the clause as limiting the power of the executive branch by ensuring Congress’s exclusive control over the federal purse.[15] Accordingly, any exercise of a power granted by the Constitution to one of the other branches of Government shall be limited by a valid reservation of congressional control over funds in the Treasury.[16]

The Fifth Circuit determined that the CFPB’s ability to unilaterally fund itself with “unappropriated monies” directly from the Federal Reserve—which is itself outside the appropriations process—has yielded an unprecedented “double insulation” from the appropriation powers of Congress.[17] The Bureau is further insulated by the express exemption from Congressional review of its funding.[18] According to the court, the Bureau’s unchecked funding structure renders the agency “no longer dependent and, as a result, no longer accountable” to Congress and, ultimately, to the people.[19] Therefore, Congress’s cession of its power of the purse to the Bureau violates the Appropriations Clause and the Constitution’s underlying structural separation of powers.[20] Accordingly, the Fifth Circuit vacated the CFPB rule in question on the grounds that it had been promulgated using unconstitutional funds.[21]

Going Forward:

The ruling opens the door to challenges against the CFPB for both future and prior action as nearly all the agency’s actions can be connected to the unconstitutional funding structure. In fact, parties that have been adversely affected by the CFPB began challenging their lawsuits as void in light of the Fifth Circuit’s holding almost immediately after the decision.[22] For example, on October 20th, TransUnion–who had been sued by the CFPB for violating a consent order through the continued use of deceptive marketing–cited the Fifth Circuit’s holding in a court filing supporting a motion to dismiss the suit.[23]

There are a few ways in which this conflict can be resolved. The CFPB could seek review of the decision before the entire Fifth Circuit; however, the odds that the decision is reversed are slim as seven of the sixteen active judges have already expressed their view that the funding structure is unconstitutional.[24] The Bureau could also seek review from the Supreme Court, but the odds are not in their favor once again as five of the justices who ruled against the CFPB in 2020 remain on the bench.[25] Ironically, the funding structure was put into place to protect the CFPB from Congress, however it seems most likely that a legislative fix will be required if the CFPB and its previous regulatory actions are to survive the Fifth Circuit’s decision.

  1. 12 U.S.C. § 5491(c). ↑

  2. § 549(a)(2). ↑

  3. Seila L. LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2197 (2020). ↑

  4. Cmty. Fin. Servs. Ass’n of Am., Ltd. v. Consumer Fin. Prot. Bureau, No. 21-50826, 2022 WL 11054082, at *12 (5th Cir. Oct. 19, 2022). ↑

  5. Kate Stith, Congress’ Power of the Purse, 97 Yale L.J. 1343, 1363 (1988). ↑

  6. Id. ↑

  7. 156 Cong. Rec. 8931 (2010) (statement of Sen. Dodd) (“[T]he [CFPB’s] funding will be independent and reliable so that its mission cannot be compromised by political maneuvering.”). ↑

  8. 12 U.S.C. § 5497(a)(1). ↑

  9. § 5497(a)(1)-(2). ↑

  10. § 5497(c)(2). ↑

  11. § 5497(a)(2)(C). ↑

  12. Cmty. Fin., 2022 WL 11054082, at *12. ↑

  13. Id. ↑

  14. U.S. Const. art. I, § 9, cl. 1. ↑

  15. Cmty. Fin., 2022 WL 11054082, at *13. ↑

  16. Id. ↑

  17. Id. at *14. ↑

  18. Id. at *15. ↑

  19. Id. ↑

  20. Id. at *19. ↑

  21. Id. at *18. ↑

  22. TransUnion Defendants’ Notice of Supplemental Authority, Consumer Fin. Prot. Bureau v. TransUnion et al., No. 1:22-cv-1880 (N.D. Ill. Oct. 20, 2022). ↑

  23. Id. ↑

  24. See Consumer Fin. Prot. Bureau v. All Am. Check Cashing, Inc., 33 F.4th 218, 220 (5th Cir. 2022) (Jones, J., Concurring) (four Fifth Circuit Justices find in concurrence that the CFPB has been unconstitutionally funded); See also Cmty. Fin., 2022 WL 11054082, at *12 (three other Fifth Circuit Justices find that the CFPB is unconstitutionally funded). ↑

  25. See Seila, 140 S. Ct. 2183 (2020). ↑

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26Apr

If at First Congress Can’t Succeed, Try to Push the Agenda Through Independent Regulatory Agencies

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Taylor Jones

Overhauling United States environmental and labor policies has been a priority of the Biden Administration since the 2020 presidential election.[1]  In fact, the Biden-Harris campaign’s website still displays Biden’s promise to “sign a series of new executive orders with unprecedented reach that go well beyond the Obama-Biden Administration platform”[2] concerning environmental issues.  Likewise, during the campaign, Biden promised to be “the most pro-union president you’ve ever seen[.]”[3]  Biden started strong toward achieving these objectives on his first day in office.[4]  In the words of giddy CNN reporters on Inauguration Day, “[w]ith the stroke of a pen,” “Biden is signing a flurry of executive orders, memorandums and directives to agencies,” “moving faster and more aggressively to dismantle his predecessor’s legacy than any other modern president.”[5]  In one such executive order, Biden committed the US to rejoin the Paris Agreement.[6]  In another, Biden halted construction of the Keystone XL pipeline by revoking its permit.[7]  Further, in a move the CNN reporters failed to discuss, Biden unceremoniously fired Peter Robb, Trump-appointed General Counsel of the National Labor Relations Board, ten months prior to the expiration of his term.[8]

 After seemingly early success on environmental and labor issues, success on the legislative front stalled.  First, the Green New Deal legislation,[9] with its discussions of cow flatulence[10] and the morality of having children in a world facing climate change,[11] was left to compost in the Senate, with three Democrats voting against the resolution.[12]  Then, just as a majority of the American workforce has failed to support unionization,[13] a majority of Senators failed to support both the Protecting the Right to Organize Act of 2021 (“PRO Act”)[14] and the Build Back Better Act.[15]

 With the prospect of environmental and labor reform being achieved by Congress diminished, purportedly independent regulatory agencies have stepped in to fill the legislative void.[16]  Both the National Labor Relations Board (“NLRB”), responsible for administering the National Labor Relations Act (the “NLRA”),[17] and the Securities and Exchange Commission (the “SEC”), established to protect investors, maintain efficient markets, and facilitate capital formation,[18] are defined by statute as independent regulatory agencies.[19]  Distinguished from executive agencies, independent regulatory agencies are intended to operate with greater independence from the executive branch.[20]  In theory, the greater independence is intended to reduce politically motivated interference with the agencies and allow for congressionally-delegated rulemaking independent of executive branch control.[21]

Despite its intended independence from partisan politics, the Biden NLRB has been criticized as “beholden to the interests of organized labor,”[22] and policy oscillation has come to be seen as the natural result of changes in presidential administrations.[23]  Akin to Biden’s aggressiveness on his first day in office, the NLRB has openly attacked Trump-era precedents and attempted to institute changes that Congress was unable to pass legislatively in the PRO Act and Build Back Better Act.[24]

For instance, Jennifer Abruzzo, the Biden-appointed current General Counsel of the NLRB, issued a Mandatory Submissions to Advice memorandum in August of 2020 signaling cases she will bring before the pro-union NLRB in order to establish new precedent.[25]  Additionally, General Counsel Abruzzo made headlines in September 2021 when she issued a memorandum to NLRB field offices that she will consider student-athletes to be statutory employees entitled to the protections of the NLRA.[26]  Likewise, in April 2022, General Counsel Abruzzo issued a similar memorandum declaring she will consider captive audience meetings a violation of the NLRA.[27]  However, while the upheaval at the NLRB signaled the willingness of independent regulatory agencies to come to the rescue of proposed Biden labor policies, the impact of the changes at the NLRB will arguably be negligible.  With a national unionization rate of approximately ten percent,[28] aside from attention-grabbing headlines concerning college athletes during football season, most of the policy shifts at the NLRB have likely flown under the radar of most Americans and not substantially impacted employers.

Perhaps more importantly, the SEC has recently taken a decisive stand to advance the goals of the failed Green New Deal legislation.[29]  Under the SEC’s new proposed rule concerning climate-related disclosures, public companies will be required to include a laundry list of climate-related disclosures in SEC filings, including climate-related goals, board and management oversight of climate risks, and Scope 1 and 2 emissions for all publicly-traded companies, with full Scope 3 emissions data being required of some companies.[30]  As stated in a letter to SEC Chair Gary Gensler signed by nineteen Republican senators in opposition to the SEC’s recent proposed rule on emissions disclosures, “[a]fter failed attempts to enact radical climate policy via legislation, this rule is yet another example of the Biden Administration’s efforts to have unelected bureaucrats implement its preferred agenda through regulation.”[31]  

The public comment period for the proposed rule closes on May 20, 2022.[32]  If the rule adopted by the SEC is substantially similar to the proposed rule, litigation may ensue.[33]  Challenges will likely center around the SEC exceeding its statutory authority and goal of protecting investors,[34] as well as compelling corporate speech in violation of the First Amendment.[35]  In a scathing statement by SEC Commissioner Hester M. Peirce, entitled “We are Not the Securities and Environment Commission – At Least Not Yet,” Commissioner Peirce suggests additional legal hurdles for the rule, including non-delegation issues and vastly inaccurate compliance cost estimates.[36]  Should the rule be struck by the courts on any of the grounds above, or alternative legal theories, we will then be left to see what other avenues the Biden Administration and its allies will seek to exploit to advance its environmental policy agenda as the 2024 presidential election draws closer.

 

[1] See Emma Newburger, Joe Biden Calls Climate Change the ‘Number One Issue Facing Humanity,’ CNBC (Oct. 24, 2020, 1:45 PM), https://www.cnbc.com/2020/10/24/joe-biden-climate-change-is-number-one-issue-facing-humanity.html; see Noah Bierman & David Lauter, Biden May be the Most Pro-Union President Since Truman. But Can He Stop Labor’s Decline?, Los Angeles Times (June 2, 2021), https://www.latimes.com/politics/story/2021-06-02/biden-pro-union-can-he-reverse-labors-long-decline.

[2] The Biden Plan for a Clean Energy Revolution and Environmental Justice, Biden-Harris Democrats, https://joebiden.com/climate-plan/ (last visited Apr. 22, 2022).

[3] Abigail Johnson Hess, Biden Promises to be ‘the Most Pro-Union President’ – and Union Members in Congress are Optimistic, CNBC Work, https://www.cnbc.com/2020/12/01/biden-promises-to-be-the-most-pro-union-president-and-rep.html (Dec. 2, 2020, 10:05 PM).

[4] See Eric Bradner, Betsy Klein & Christopher Hickey, Biden Targets Trump’s Legacy with First-day Executive Actions, CNN Politics (Jan. 20, 2021, 8:48 PM), https://www.cnn.com/2021/01/20/politics/executive-actions-biden/index.html

[5] Id.

[6] Id.

[7] Rob Gillies, Keystone XL Pipeline Halted as Biden Revokes Permit, AP News, https://apnews.com/article/joe-biden-alberta-2fbcce48372f5c29c3ae6f6f93907a6d (Jan. 20, 2021).

[8] See Bradner, supra note 4; Ian Kullgren & Josh Eidelson, Biden Fires NLRB General Counsel After He Refuses to Resign, Bloomberg Law, https://news.bloomberglaw.com/daily-labor-report/biden-moves-to-oust-top-labor-board-attorney-robb (Jan. 20, 2021, 9:42 PM).

[9] Recognizing the Duty of the Federal Government to Create a Green New Deal, H.R. 109, 116th Cong. (2019-2020).

[10] Rep. Cortez Repeats Claim that Cow Flatulence Threatens Mankind, Metro Voice News (Apr. 2, 2019), https://metrovoicenews.com/rep-cortez-repeats-claim-that-cow-flatulence-threatens-mankind/.

[11] Isabel Vincent & Melissa Klein, Gas-guzzling Car Rides Expose AOC’s Hypocrisy Amid Green New Deal Pledge, New York Post (Mar. 2, 2019, 7:32 PM), https://nypost.com/2019/03/02/gas-guzzling-car-rides-expose-aocs-hypocrisy-amid-green-new-deal-pledge/ .

[12] Jacob Pramuk, Green New Deal Backed by Alexandria Ocasio-Cortez Fizzles Out in the Senate as Dems Accuse GOP of Putting on a ‘Stunt’ Vote, CNBC, https://www.cnbc.com/2019/03/26/aocs-green-new-deal-dies-in-mcconnell-led-senate-vote.html (Mar. 26, 2019, 4:51 PM).  

[13] News Release, Bureau of Labor Statistics, Union Members – 2021 (Jan. 20, 2022), https://www.bls.gov/news.release/pdf/union2.pdf (last visited Feb. 26, 2022).

[14] Diana Furchtgott-Roth, Democrats Can’t Pass the PRO Act, so It’s Buried in the Reconciliation Bill, The Hill (Oct. 09, 2021. 11:01 AM), https://thehill.com/opinion/white-house/575992-dems-cant-pass-the-pro-act-so-its-buried-in-the-reconciliation-bill/; see Protecting the Right to Organize Act of 2021, H.R. 842, 117th Cong. (2021).

[15] Burgess Everett, Dems Face Sobering Possibility: Build Back … Never, Politico (Feb. 2, 2022, 9:00 AM), https://www.politico.com/news/2022/02/10/democrats-social-spending-dreams-stuck-in-winter-purgatory-00007557; see Build Back Better Act of 2021, H.R. 5376, 117th Cong. (2021).

[16] Brody Mullins & Ryan Tracy, Biden’s Regulatory Drive Sparks Pushback From Business Lobbyists, Wall Street Journal (Feb. 7, 2022, 5:30 AM), https://www.wsj.com/articles/bidens-regulatory-drive-sparks-pushback-from-business-lobbyists-11644229802.

[17] National Labor Relations Act, 29 U.S.C. §§ 151–69 (1947).  

[18] What We Do, United States Securities and Exchange Commission, https://www.sec.gov/about/what-we-do (Nov. 22, 2021).    

[19] 44 U.S. Code § 3502 (2019).

[20] Robert Longley, Independent Executive Agencies of the US Government, ThoughtCo., https://www.thoughtco.com/independent-executive-agencies-of-us-government-4119935 (Aug. 2, 2021).  

[21] See generally Congressional Research Service, Congress’s Authority to Influence and Control Executive Branch Agencies (2021), https://sgp.fas.org/crs/misc/R45442.pdf.

[22] Tomiwa Aina, Full House: A Fully Constituted Biden NLRB is Here, Fisher Phillips (Aug. 10, 2021),  https://www.fisherphillips.com/news-insights/fully-constituted-biden-nlrb-is-here.html.

[23] Joan Flynn, A Quiet Revolution at the Labor Board: The Transformation of the NLRB 1935-2000, 61 Ohio St. L. J. 1361, 1413 (2000).

[24] See NLRB General Counsel Jennifer Abruzzo Issues Memorandum Presenting Issue Priorities, National Labor Relations Board (Aug. 12, 2021), https://www.nlrb.gov/news-outreach/news-story/general-counsel-jennifer-abruzzo-releases-memorandum-presenting-issue.

[25] Steven M. Swirsky & Donald S. Krueger, NLRB General Jennifer A. Abruzzo Issues “Mandatory Submissions to Advice” and “Utilization of Section 10(j) Proceedings” Memos, Outlining Her Priorities and Enforcement Agenda, The National Law Review (Aug. 23, 2021), https://www.natlawreview.com/article/nlrb-general-counsel-jennifer-abruzzo-issues-mandatory-submissions-to-advice-and.

[26] NLRB General Counsel Jennifer Abruzzo Issues Memo on Employee Status of Players at Academic Institutions, National Labor Relations Board Office of Public Affairs (Sept. 29, 2021), https://www.nlrb.gov/news-outreach/news-story/nlrb-general-counsel-jennifer-abruzzo-issues-memo-on-employee-status-of.

[27] NLRB General Counsel Jennifer Abruzzo Issues Memo on Captive Audience and Other Mandatory Meetings, National Labor Relations Board Office of Public Affairs (Apr. 7, 2022), https://www.nlrb.gov/news-outreach/news-story/nlrb-general-counsel-jennifer-abruzzo-issues-memo-on-captive-audience-and.

[28] Bureau of Labor Statistics, News Release: Union Members – 2021 (Jan. 20, 2022, 10:00 AM), https://www.bls.gov/news.release/pdf/union2.pdf (last visited Apr. 22, 2022).

[29]  See The Enhancement and Standardization of Climate-Related Disclosures for Investors, 87 Fed. Reg. 21334 (Apr. 11, 2022) (to be codified at 17 C.F.R. pts. 210, 229, 232, 239, 249).

[30] Id.

[31] Letter from Kevin Cramer, Senator of North Dakota, and 18 United States Senators, to Gary Gensler, Chair, SEC (Apr. 5, 2022), https://senatorkevincramer.app.box.com/s/tpo6hagvk3ynh0752g38aiwnnast7mjt (last visited Apr. 22, 2022).

[32] The Enhancement and Standardization, supra note 29.

[33] Letter from Patrick Morrisey, West Virginia Attorney General, and 15 state Attorneys General, to Gary Gensler, Chair, SEC (June 14, 2021), https://www.sec.gov/comments/climate-disclosure/cll12-8915606-244835.pdf (last visited Apr. 22, 2022).

[34] Id.

[35] Id.

[36] Hester M. Peirce, Commissioner of the SEC, We are Not the Securities and Environment Commission – At Least Not Yet, Statement U.S. Securities and Exchange Commission (Mar. 21, 2022), https://www.sec.gov/news/statement/peirce-climate-disclosure-20220321.

Photo by Aaron Kittredge via Pexels

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12Apr

The Nondelegation and Major Questions Doctrines: OSHA’s Stayed Mandate and a Closer Look at the Growing Debate over Chevron Deference

Categories: Current Issues Blog
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By Jonathon Beatty

In National Federation of Independent Business v. OSHA,[1] the Supreme Court reversed the Sixth Circuit Court of Appeals and stayed the Occupational Health and Safety Administration’s (“OSHA”) rule imposing a vaccine-or-test mandate on essentially every employer with at least 100 employees.[2]  The rule and subsequent stay affected some eighty-four million private-sector workers across the United States,[3] but the opinion has far-reaching implications for our entire constitutional order.  It highlighted a growing debate over the deference courts afford agencies when they ostensibly act pursuant to a congressional delegation of authority—namely, the nondelegation and major questions doctrines.[4]  At the very least, a majority of the Court signaled a willingness to scale back Chevron deference,[5] while Justice Gorsuch, joined by Justices Thomas and Alito, appeared poised to strengthen a duo of related doctrines that could dramatically diminish the authority of administrative agencies moving forward.[6]  But what does all this mean?

Start with the text of the Constitution.  Article I, Section 1 grants “[a]ll legislative powers . . . in a Congress of the United States, which shall consist of a Senate and House of Representatives.”[7]  On its face, the Constitution is clear in its separation of powers: all legislation, or lawmaking, must originate in Congress.  As Justice Scalia put it, “This text permits no delegation of those powers . . . .”[8]  Since at least 1892, the Supreme Court has made this abundantly clear, “[t]hat Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.”[9]  Hence, the nondelegation doctrine has developed from and is a product of the Constitution’s text.  Few, if any, rules, however, are absolute.  The nondelegation doctrine is no exception.[10]

The Constitution demands that the President faithfully execute the laws.[11]  In doing so, the executive necessarily must have some decision-making authority to administer laws.[12]  Even James Madison, who championed “the division of authority among the various branches of government,”[13] recognized that absolute separation “can never in practice be duly maintained.”[14]  Accordingly, the Court has long sought to strike the balance between maintaining a clear separation of powers and allowing Congress to delegate limited rulemaking authority to administrative agencies for practical purposes.[15]  Effective governance, the argument goes, relies on it.[16]  In delegating such authority, however, Congress must “lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.”[17]  Otherwise, executive action may stray too far from legislative command and thus unconstitutionally blur the line between executive and legislative power.

The validity of an administrative rule, therefore, rests on essentially three questions: (1) whether Congress has the authority itself to do what the agency has done; (2) whether Congress may delegate that authority to an agency; and (3) whether Congress, in fact, delegated that authority.[18]  The first question is a threshold matter asking whether “the federal government properly invoke[d] a constitutionally enumerated source of authority to regulate in [the] area . . . .”[19]  If so, courts look to whether the attempted delegation of power provides an “intelligible principle” to direct the agency.[20]  Too broad a grant of authority without sufficient guidance would violate Article I, Section 1 by taking from Congress, the branch closest and most responsive to the democratic process, “important choices of social policy.”[21]  And finally, courts must determine whether Congress, in fact, made a constitutional grant of authority allowing the agency to do what it purports to have the power to do.[22]  Put differently, Congress may have the inherent constitutional authority and may be able to delegate that authority, but did it?[23]  This last question, on which OSHA’s mandate ultimately failed,[24] implicates Chevron deference and the major questions doctrine.

When a statute speaks clearly on an issue, a court’s assessment ceases: it “must give effect to the unambiguously expressed intent of Congress,” regardless of an agency’s interpretation or position.[25]  Where, however, the statute is vague and does not “address[] the precise question at issue,” the court need only decide whether the agency’s decision represents “a permissible construction of the statute.”[26]  In other words, when a statue is ambiguous, the agency’s interpretation of a statute allowing it to make rules need only be “reasonable.”[27]  The underlying justification for such great deference is basically twofold: (1) ambiguity amounts to “an implicit delegation” of power to an “agency to fill the statutory gaps” left by Congress;[28] and (2) administrative agencies that Congress has tasked with administering the law have “expertise,” especially relative to judges, that better positions them to make rules on the regulatory matter.[29]

This inclination to defer to an agency’s “reasonable” interpretation goes at least as far back as the 1940s,[30] for example, when Justice Murphy explained that courts may invalidate an agency’s rule “only if it lacks any rational and statutory foundation.”[31]  Just like the nondelegation doctrine, however, Chevron is not without exception.  An agency’s exercise of substantial authority, even where the enabling statute at issue is ambiguous, may appropriately give courts pause before deciding that Congress has made “such an implicit delegation.”[32]  This is especially true of “question[s] of deep ‘economic and political significance.’”[33]  And the major questions doctrine represents that pause, or “reason to hesitate,”[34] before essentially rubber-stamping agency action.[35]  The idea is that if Congress truly assigned an agency such considerable power, it would have done so unmistakably.

On this doctrine, the Court stayed OSHA’s mandate, finding that challengers of the rule were likely to succeed on the merits that OSHA “lacked authority to impose the mandate.”[36]  Pointing to the rule’s “significant encroachment into the lives—and health—of a vast number of employees,” the Court reasoned that such an intrusion would need a clear congressional delegation of authority that “plainly authorizes the . . . mandate.”[37]  It went on to hold that no such authorization existed, explaining that the enabling statute “empowers [OSHA] to set workplace standards, not broad public health measures.”[38]

Echoing the majority opinion, Justice Gorsuch summarized the issue before the Court as one of “who decides” the major question.[39]  He further posited that the nondelegation and major questions doctrines, which are “closely related,” shed light on that question.[40]  He explained that both serve to keep lawmaking power “where Article I of the Constitution says it belongs—with the people’s elected representatives.”[41]  And the power to decide how to address the pandemic, as the law exists today, he argued, “rests with the States and Congress, not OSHA.”[42]

Ultimately, much remains to be seen as to what extent the Court will cut back on Chevron deference.  But there is little doubt (1) that a majority of the Court is sympathetic to the nondelegation and major questions doctrines; and (2) that cases challenging agency action will continue to arise.  In fact, West Virginia v. EPA, a case from the current Term, presents yet another opportunity for the Court to weigh in on the major questions doctrine.[43]  There, the Court will answer “[w]hether . . . Congress constitutionally authorized the [EPA] to issue significant rules—including those capable of reshaping the nation’s electricity grids . . . .”[44]  Plaintiffs have good reason to believe that the merits of their challenges look increasingly promising.  Nevertheless, having already used it twice this term to invalidate agency action, court watchers anticipate “[a] major battle of the ‘major questions’ doctrine” in this case and beyond.[45]

[1] 142 S. Ct. 661 (2022).

[2] Id. at 662.

[3] Id.

[4] Id. at 668 (Gorsuch, J., concurring) (“[T]he major questions doctrine is closely related to what is sometimes called the nondelegation doctrine.”).

[5] See generally Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–43 (1984) (When deciding whether an agency’s interpretation of a statute is valid, courts look to (1) whether the statute at issue is ambiguous; and, if so, (2) whether the agency’s interpretation is reasonable.).  This standard of review is widely considered to be highly deferential to agencies in the rulemaking process.  See Michigan v. EPA, 576 U.S. 743, 761 (2015) (Thomas, J., concurring) (“Chevron deference . . . forc[es] [judges] to abandon what they believe is ‘the best reading of an ambiguous statute’ in favor of an agency’s construction.  It thus wrests from Courts the ultimate interpretative authority to ‘say what the law is,’ and hands it over to the Executive.”) (citations omitted).

[6] See Nat’l Fed’n of Indep. Bus., 142 S. Ct. at 668–69 (Gorsuch, J., concurring) (Justices Thomas and Alito joined Justice Gorsuch in emphasizing the important role the nondelegation and major questions doctrines play in “protect[ing] the separation of powers.”).

[7] U.S. Const. art. I, § 1.

[8] Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001).

[9] Field v. Clark, 143 U.S. 649, 692 (1892).

[10] Indus. Union Dep’t v. Am. Petroleum Inst., 448 U.S. 607, 673 (1980) (Rehnquist, J., concurring) (“The rule against delegation of legislative power is not, however, so cardinal a principle as to allow for no exception.”).

[11] U.S. Const. art. II, § 3 (“[The President] shall take Care that the Laws be faithfully executed . . . .”).

[12] Morton v. Ruiz, 415 U.S. 199, 231 (1974) (“The power of an administrative agency to administer a congressionally created and funded program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.”).

[13] Indus. Union Dep’t, 448 U.S. at 673 (Rehnquist, J., concurring).

[14] The Federalist No. 48 (James Madison).

[15] Indus. Union Dep’t, 448 U.S. at 673–74 (Rehnquist, J., concurring) (“This Court . . . has recognized that a hermetic sealing-off of the three branches of government from one another could easily frustrate the establishment of a National Government capable of effectively exercising the substantive powers granted to the various branches by the Constitution.”).

[16] Id.

[17] Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001).

[18] See cases cited infra notes 19–22 and accompanying text.

[19] Nat’l Fed’n of Indep. Bus. v. OSHA, 142 S. Ct. 661, 668 (2022) (Gorsuch, J., concurring).

[20] Whitman, 531 U.S. at 472.

[21] Indus. Union Dep’t, 448 U.S. at 685–86 (Rehnquist, J., concurring) (noting that “the nondelegation doctrine serves three important functions” in (1) upholding democracy, (2) requiring guidance from Congress to the agency, and (3) providing standards against which courts may assess agency action).

[22] Worth noting here is the Supreme Court’s longstanding doctrine to avoid constitutional questions when a case may be resolved on lesser, often statutory, grounds.  See Jennings v. Rodriguez, 138 S. Ct. 830, 843 (2018).  Accordingly, administrative law cases often turn on this third question to avoid the more substantial constitutional issue.  Taking the OSHA rule, for example, the Court held that Congress did not delegate the agency the authority to impose a vaccine-or-test requirement; it did not address whether Congress, and thus the federal government, has the inherent constitutional power to do so.  Nat’l Fed’n of Indep. Bus., 142 S. Ct. at 662.

[23] See generally Advisory Opinions, Supreme Court Blocks Vaccine Mandate, The Dispatch, at 22:58 (Jan. 14, 2022), https://advisoryopinions.thedispatch.com/p/supreme-court-blocks-vaccine-mandate?s=r (explaining that, with respect to OSHA’s rule, “nondelegation is that Congress can’t give OSHA the power,” while “major question doctrine is that Congress didn’t give OSHA the power”).

[24] Nat’l Fed’n of Indep. Bus., 142 S. Ct. at 662.

[25] Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–43 (1984).

[26] Id.

[27] Id. at 844. 

[28] FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000).

[29] Gonzalez v. Oregon, 545 U.S. 243, 266–67 (2006) (“Because . . . policymaking expertise account[s] in the first instance for the presumption that Congress delegates interpretive lawmaking power to the agency rather than to the reviewing court, we presume here that Congress intended to invest interpretive power in the administrative actor in the best position to develop these attributes.” (quoting Martin v. OSHRC, 499 U.S. 144, 153 (1991))).

[30] The congressional delegation of power, however, is an issue as old at the republic.  See generally Julian Davis Mortenson & Nicholas Bagley, Delegation at the Founding, 121 Colum. L. Rev. 277, 281 (2021), https://columbialawreview.org/content/delegation-at-the-founding/ (“The Founders would thus have said that agencies wield legislative power to the extent they adopt rules that Congress could have enacted as legislation.”). Cf Ilan Wurman, Nondelegation at the Foudning, 130 Yale L.J. 1490, 1503 (2021), https://www.yalelawjournal.org/pdf/Wurman_d4111w2k.pdf (“In the first dozen years after Ratification, members of the Founding generation involved in public life and government repeatedly argued that Congress could not delegate its legislative power to the Executive.”).

[31] SEC v. Chenery Corp., 322 U.S. 194, 207 (1947).  

[32] Brown & Williamson Tobacco Corp., 529 U.S. at 159.

[33] King v. Burwell, 576 U.S. 473, 485–486 (2015) (quoting Utility Air Regulatory Group v. EPA, 573 U.S. 302, 324 (2014).

[34] Brown & Williamson Tobacco Corp., 529 U.S. at 159.

[35] Nat’l Fed’n of Indep. Bus. v. OSHA, 142 S. Ct. 661, 667 (2022) (Gorsuch, J., concurring) (“We sometimes call this the major questions doctrine.”).

[36] Id. at 665–66.

[37] Id. at 665.

[38] Id. at 665.

[39] Id. at 667 (Gorsuch, J., concurring).

[40] Id. at 668 (Gorsuch, J., concurring).

[41] Id. at 668–69 (Gorsuch, J., concurring) (“The nondelegation doctrine ensures democratic accountability by preventing Congress from intentionally delegating its legislative powers to unelected officials” in an effort to deflect blame or shirk responsibility.).

[42] Id. at 670 (Gorsuch, J., concurring).

[43] Amy Howe, Greenhouse Gases and “Major Questions”: Justices to Hear Argument on EPA’s Power to Tackle Climate Change, SCOTUSblog (Feb. 27, 2022, 6:03 PM), https://www.scotusblog.com/2022/02/greenhouse-gases-and-major-questions-justices-to-hear-argument-on-epas-power-to-tackle-climate-change/.

[44] West Virginia v. Environmental Protection Agency, SCOTUSblog, https://www.scotusblog.com/case-files/cases/west-virginia-v-environmental-protection-agency/ (last visited April 12, 2022).

[45] Howe, supra note 43.

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12Feb

New ABA Program Helps Immigrants Navigate Daunting Government System

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By Alexandra N. Meyer

A new American Bar Association program aims to better prepare immigrants navigating one of America’s most time-consuming and expensive government systems. Unlike most government agencies, the U.S. Citizenship and Immigration Services, (“USCIS”), is fee-funded and relies almost exclusively on fees to operate.[1] In fact, service fees account for approximately 97 percent of the USCIS’s budget.[2] Last summer, the USCIS announced that it aimed to increase a number of immigration and naturalization benefit request fees by a weighted average of 20 percent.[3] The agency reasoned that “current fees do not recover the full cost of providing adjudication and naturalization services”[4] and would leave the agency underfunded by approximately $1 billion per year.[5] Luckily, after two preliminary injunctions preventing the implementation of the fee increases, the government filed a motion for voluntary dismissal of its appeal[6] of Immigrant Legal Research Center v. Wolf.[7]

Although fees not increasing (for the time being) is certainly something to celebrate, issues with the current fee-based system persist. The current fees for many of the most popular forms remain high.[8] For example, an I-485 “Application to Register Permanent Residence or Adjust Status” retains its $1,140 fee; an N-400 “Application for Naturalization” costs $640; and an N-600 “Application for Certificate of Citizenship” will set an individual back $1,170.[9] In addition, both the I-485 and N-400 forms require applicants to shell out an extra $85 for a biometrics fee.[10] Clearly, the costs of sending in even a single application can be incredibly high. These costs quickly multiply for families sending multiple forms—one for each family member—to the USCIS for processing.

To the USCIS’s credit, a fee-waiver program exists. However, the program is arguably inadequate, as the agency has narrowed eligibility and declined hundreds of thousands of applications for fee waivers.[11] At one time, nearly any form could be accompanied by a fee-waiver application. Unfortunately in 2007, the USCIS created a “limited list that prohibited two-thirds of the application types from the possibility of a fee waiver.”[12] In 2016, the USCIS approved more than 627,000 fee-waiver applications.[13] A year later, in 2017, the agency only approved 285,000 applications.[14]

Even if an applicant can afford the filing fees, the complexity of the forms may force additional, unanticipated costs. Theoretically, the USCIS lists the steps of the application process with instructions on how to fill out each form on its website, but in practice the website is difficult to navigate and understand, particularly for applicants who speak English as a second language.[15] Once an individual finds the correct form, they must fill it out correctly according to the USCIS’s standards—a task that seems designed to promote failure. For example, in recent years, the I-485 form has grown from six pages with an accompanying eight pages of instructions to twenty pages with forty-five pages of instructions.[16]

Forms also expire with little to no notice, only to be replaced with almost identical new forms.[17] Applications already mailed with the now obsolete form variants are rejected.[18] Furthermore, forms can be rejected or denied if any field is left blank, regardless of its applicability. For example, applications have been rejected for listing three siblings when there is space on the application for four or not including an address for a deceased parent.[19] Perhaps the most ridiculous reason for form rejection are typographical absurdities, like an applicant stating “NA” instead of “N/A” when a field is not applicable.[20]

Rejected applications not only serve to frustrate applicants, but add to the costs of immigration and naturalization. Rejections may not be appealed.[21] The applicant must resubmit a corrected form.[22] Every time an applicant submits a new form for review, the “USCIS requires new fees with any new benefit request,” even if the applicant is submitting the same form type with only minimal corrections.[23] The USCIS may even keep the rejected application fee.[24]

Hiring an immigration lawyer certainly helps to prevent issues that may arise during the application process. In fact, the nitpickiness of the USCIS has arguably made counsel a necessity. An immigration lawyer knows exactly what forms are applicable to a case and can help ensure that forms are properly completed according to the USCIS’s standards.[25] Although the thought of paying legal fees in addition to the USCIS’s form fees may deter some from seeking legal advice, the cost of legal fees are often comparable to the USCIS’s form fees.[26] Hiring an immigration attorney may even save the applicant money in the long run if the alternative is to resubmit rejected applications numerous times.[27]

Despite the benefits of hiring an immigration attorney to help with the immigration and naturalization process, reality is many individuals cannot afford form filing fees, let alone additional legal fees.[28] The American Bar Association’s online program, ABA Free Legal Answers, seeks to narrow this “justice gap.”[29] The service, which expanded to include immigration law in January 2021, allows users to ask volunteer attorneys legal questions regarding deportation, green cards, Deferred Action for Childhood Arrivals, (“DACA”), and naturalization.[30] Unfortunately, individuals can only ask up to three questions per year, but for someone previously unable to ask any questions, this is an improvement to the situation.[31] At first glance, it’s also difficult to ascertain the parameters of asking questions, but it seems unlikely that an individual can submit an entire form for review. Still, the program provides attorneys with the opportunity to remind applicants not to leave blank fields in their forms, or to use “N/A” instead of “NA,” however ridiculous that necessary advice may seem.

[1] USCIS Adjusts Fees to Help Meet Operational Needs, U.S. Citizenship & Immigr. Servs., (Jul. 31, 2020), https://www.uscis.gov/news/news-releases/uscis-adjusts-fees-to-help-meet-operational-needs#:~:text=Unlike%20most%20government%20agencies%2C%20USCIS,97%25%20of%20USCIS’%20budget.

[2] Id.

[3] U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 85 Fed. Reg. 46,788, 46,788 (Aug. 3, 2020).

[4] Id.

[5] U.S. Citizenship & Immigr. Servs., supra note 1.

[6] Featured Issue: Changes to USCIS Fee Schedule, Am. Immigr. Laws. Ass’n (Jan. 29, 2021), https://www.aila.org/advo-media/issues/all/changes-to-uscis-fee-schedule.

[7] No. 20-CV-05883, 2020 WL 5798269 (N.D. Cal. Sept. 29, 2020).

[8] See Most Common USCIS Immigration Forms, Nat’l Notary Ass’n, https://www.nationalnotary.org/immigration/knowledge-center/uscis-immigration-forms (last visited Feb. 12, 2021).

[9] Dep’t of Homeland Sec., U.S. Citizenship & Immigr. Servs., Form G-1055: Fee Schedule 4, 11 (2020), https://www.uscis.gov/sites/default/files/document/forms/g-1055.pdf.

[10] Id.

[11] Juan Esteban Bedoya, Price Tags on Citizenship: The Constitutionality of the Form N-600 Fee, 96 N.Y.U.L. Rev. 1022, 1027 (2020).

[12] Peggy Gleason and Melissa Rodgers, Status of USCIS Fee Waiver Changes–October 2, 2020, Immigrant Legal Res. Ctr., https://www.ilrc.org/sites/default/files/resources/pa_fee_waiver_10.9.20.pdf.

[13] Manuel Madrid, Border Wall or No, Immigrants Will Soon Have to Scale a Paywall, Am. Prospect (Jan. 23, 2019), https://prospect.org/civil-rights/border-wall-no-immigrants-will-soon-scale-paywall/.

[14] Id.

[15] See Filing Guidance, U.S. Citizenship & Immigr. Servs. (Oct. 25, 2019), https://www.uscis.gov/forms/filing-guidance.

[16] Catherine Rampell, Trump Didn’t Build His Border Wall with Steel. He Built It Out of Paper, Wash. Post (Oct. 29. 2020), https://www.washingtonpost.com/opinions/2020/10/29/trump-immigration-daca-family-separation/?arc404=true.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Chapter 6-Submitting Requests, U.S. Citizenship & Immigr. Servs. (Feb. 10, 2021), https://www.uscis.gov/policy-manual/volume-1-part-b-chapter-6.

[22] Id.

[23] Id.

[24] Filing Fees, U.S. Citizenship & Immigr. Servs. (Feb. 1, 2021), https://www.uscis.gov/forms/filing-fees (select “Refund Policy” at the bottom of the webpage).

[25] Liz Daneu, Is an Immigration Lawyer Worth the Cost?, Alllaw.com, https://www.alllaw.com/articles/nolo/us-immigration/lawyer-worth-cost.html (last visited Feb. 12, 2021).

[26] Id.

[27] Id.

[28] See Farida Jhabvala Romero, Immigrants Seek Stability of U.S. Citizenship But Cost Is Often a Barrier,  KQED (Apr. 12, 2018), https://www.kqed.org/news/11660853/immigrants-seek-stability-of-u-s-citizenship-but-cost-is-often-a-barrier.

[29] Tali K. Albukerk, “ABA Free Legal Answers” Connects Clients and Pro Bono Attorneys Online, Am. Bar Ass’n (Apr. 13, 2020), https://businesslawtoday.org/2020/04/aba-free-legal-answers-connects-clients-pro-bono-attorneys-online/.

[30] Free Legal Answers Expands to Help Immigrants, Veterans, Am. Bar Ass’n (Jan. 25., 2021), https://www.americanbar.org/news/abanews/aba-news-archives/2021/01/free-legal-answers/.

[31] Id.

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11Feb

FAA Rescinds Order Grounding Jets, 737 MAX Aircraft Return to Flight

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By Steven P. Bradford

Following crashes of Lion Air Flight 610 and Ethiopian Airlines Flight 302, the Federal Aviation Administration (“FAA”) issued an Emergency Order grounding Boeing 737-8 and -9 (“Boeing MAX”) aircraft.[1]  The order was rescinded on November 18, 2020, allowing Boeing MAX aircraft to resume flight operations once airlines complete prescribed corrective actions to remedy the system identified as the common cause in the two accidents.[2]  While detecting and rectifying the faulty system will prevent future mishaps, it is incumbent upon rule-makers to identify processes that allowed a faulty system to be certified.

In developing a fuel-efficient replacement for the 737,[3] Boeing filed patent applications in 2009 for a new aircraft design with an elliptically-shaped fuselage.[4]  In 2010, Boeing’s primary competitor, Airbus, unveiled fuel-efficient engines for incorporation onto existing airframes.[5]  Anxious that Airbus would corner the market on fuel-efficient aircraft, Boeing pivoted to modify its 737 design rather than design a new aircraft.[6]  This strategy saved time in the design process, and shortened the certification timetable.[7]  Certification of new designs can take up to nine years,[8] but amended type certificates, granted to aircraft modified from already certified designs,[9] takes three to five years.[10]  Boeing did not have time to design and certify a new aircraft with an elliptically-shaped fuselage; rather, Boeing had to modify its existing 737 design and pursue an amended type certificate to remain competitive.[11]  To further expedite the certification process, Boeing made use of a program authorized by federal statute called Organization Designation Authorization (“ODA”), which aims to increase efficiency and decrease FAA workload[12] by delegating aspects of the certification process to external organizations, including the manufacturer.[13]  

As a result, the Boeing MAX received an amended type certificate in March 2017,[14] only a year after Airbus’s fuel-efficient aircraft entered service.[15]  However, this shortened process contributed to the crash of two aircraft in two years of flight operations. Investigations identified multiple factors contributing to the mishaps, including the amended type certification process.[16]  This incident raised the question: at what point do amendments to an existing design become so significant that the aircraft should be treated as a new design?[17]

New type certificates are required if “the FAA finds that the proposed change in design . . . is so extensive that a substantially complete investigation of compliance with the applicable regulations is required.”[18]  Conversely, the Changed Product Rule authorizes the granting of amended type certificates if the FAA determines changes are not significant.”[19]  Significant changes are those where the general aircraft configuration is not retained, or assumptions used in the previous certification are no longer valid.[20]  To clarify this nebulous standard, the FAA published a non-exhaustive list of significant versus non-significant changes.[21]  However, federal regulation still does not clearly distinguish significant from non-significant, or delineate between amendments and new designs.  In fact, representatives from the FAA, NASA, and civil aviation authorities from several countries found that “there are no criteria for determining when the core attributes of an existing design make it fundamentally incapable of supporting [] advancements . . . and therefore warrant consideration of a . . . certification under a new type certificate.”[22]

Determining whether a change is significant is further complicated by the ODA program, delegating aspects of certification to the manufacturer.  Here, the FAA delegated to Boeing testing of the Maneuvering Characteristics Augmentation System (MCAS) integrated into the flight controls, later found to be responsible for the Lion Air and Ethiopian Airlines accidents.[23]  As MCAS proceeded through certification at Boeing, it was tweaked, made more robust, and given greater authority to move flight control surfaces without pilot input.[24]  However, communication between Boeing working groups and with the FAA was so poor that the FAA did not fully understand the extent of changes made to MCAS since it was first disclosed, nor the authority it had over flight control surfaces.[25]  Had the FAA been aware of MCAS’s ultimate capabilities, it likely would have required additional evaluation.[26]  Simply put, poor communication left the FAA unaware of the MCAS capabilities and unable to accurately determine whether its inclusion in Boeing MAX aircraft constituted a significant change from previous 737s.  While ODA programs are not inherently flawed,[27] poor communication and institutional pressure impaired the decision making of ODA representatives tasked with certifying systems and components on behalf of the FAA.[28]

The proposed Aircraft Certification Reform and Accountability Act seeks to better define what constitutes a significant change.  The act asks the FAA to weigh whether modifications to flight control systems should preclude the issuance of an amended type certificate,[29] essentially asking if all flight controls modifications should be classified as “significant” changes.  The act directs the FAA to “improve the process of issuing amended type certificates,”[30] but does not mandate specific procedural changes.  While acknowledging clarification is necessary, the FAA stated that future research and coordination is required before making any changes to certification policy.[31]  Therefore, changes to 14 C.F.R Subpart B  governing certifications are still several years away, based on timelines set forth in the proposed act.[32] Much of the act discusses cultural changes to the FAA and aircraft manufacturers in an effort to foster greater collaboration between working groups, urging a holistic approach to aircraft design to understand how changes to one system will affect other systems.  In addition to cultural changes, the support the act has received thus far, as well as congressional and FAA finding detailed in reports written after the grounding of Boeing MAX aircraft, procedural changes to the certification process should be anticipated in the future.

[1] U.S. Dep’t of Transp., FAA Emergency Order of Prohibition 2 (Mar. 13, 2019), https://www.faa.gov/news/updates/media/Emergency_Order.pdf.

[2] U.S. Dep’t of Transp., FAA Recission of Emergency Order of Prohibition 1–2 (Nov. 18, 2020) https://www.faa.gov/foia/electronic_reading_room/boeing_reading_room/media/737_MAX_Rescission_of_Grounding_Order.pdf. See also Airworthiness Directives; The Boeing Company Airplanes, 85 Fed. Reg. 47698 (Aug. 6, 2020) (to be codified at 14 C.F.R. pt. 39); FAA Notice 8900.570, at 2 (Nov. 18, 2020), https://www.faa.gov/documentLibrary/media/Notice/N_8900.570_FAAWeb.pdf.

[3] Boeing Firms Up 737 Replacement Studies by Appointing Team, Flight Global (Mar. 3, 2006), https://www.flightglobal.com/boeing-firms-up-737-replacement-studies-by-appointing-team/66022.article.

[4] U.S. Patent Application No. 12/624,322 (filed Nov. 23, 2009).

[5] Press Release, Airbus, Airbus offers new fuel saving engine options for A320 Family (Dec. 1, 2010), https://www.airbus.com/newsroom/press-releases/en/2010/12/airbus-offers-new-fuel-saving-engine-options-for-a320-family.html.

[6] Darryl Campbell, Redline: The many human errors that brought down the Boeing 737 Max, The Verge (May 2, 2019), https://www.theverge.com/2019/5/2/18518176/boeing-737-max-crash-problems-human-error-mcas-faa.

[7] Id. See generally 49 U.S.C. § 44704(a) (outlining requirements for type certificates).

[8] Airworthiness Certification, FAA (Dec. 6, 2019), https://www.faa.gov/aircraft/air_cert/airworthiness_certification/.

[9] Amended Type Certificate, FAA (Aug. 10, 2011), https://www.faa.gov/aircraft/air_cert/design_approvals/amend_tc/; FAA Order No. 8110.4C ch. 6, at 87 (Oct. 12, 2005), https://www.faa.gov/documentLibrary/media/Order/FAA_Order_8110_4C_Chg_6.pdf.

[10] Airworthiness Certification, supra note 8.

[11]Campbell, supra note 6.

[12] FAA Order 8100.15A (June 10, 2011), https://www.faa.gov/documentLibrary/media/Order/8100.15A.pdf.

[13] See 49 U.S.C. § 44702(d).

[14] Press Release, Boeing, Boeing 737 MAX 8 Earns FAA Certification (Mar. 9, 2017), https://boeing.mediaroom.com/2017-03-09-Boeing-737-MAX-8-Earns-FAA-Certification; Firdaus Hashim, Malindo Operates World’s First 737 Max Flight, Flight Global (May 22, 2017), https://www.flightglobal.com/malindo-operates-worlds-first-737-max-flight/124109.article.

[15] Andreas Spaeth, Onboard Lufthansa’s First Airbus A320neo Flight, Airways Magazine (Jan. 25, 2016), https://airwaysmag.com/traveler/lufthansa-first-airbus-a320neo-flight/.

[16] Staff of H. Comm. on Trans. and Infrastructure, 116th Cong., The Design, Development, & Certification of the Boeing 737 MAX 12–14 (2020), https://transportation.house.gov/imo/media/doc/2020.09.15%20FINAL%20737%20MAX%20Report%20for%20Public%20Release.pdf.

[17] See id. at 43–45.

[18] 14 C.F.R. § 21.19 (2020).

[19] 14 C.F.R. § 21.101 (2020); see Joint Auths. Tech. Rev., Boeing 737 MAX Flight Control System Observations, Findings, and Recommendations 6–11 (2019) (referring to the applicable sections of the C.F.R. as the Changed Product Rule).

[20] 14 C.F.R. §21.101(b)(1); FAA Order 8110.48A, at 4-2 (July 21, 2017), https://www.faa.gov/documentLibrary/media/Order/FAA_Order_8110_48A.pdf.

[21] FAA Advisory Circular 21.101-1B appx. A. (Mar. 11, 2016) https://www.faa.gov/documentLibrary/media/Advisory_Circular/AC_21.101-1B.pdf.

[22] Joint Auths. Tech. Rev., supra note 19, at 7.

[23] Id. at 26. A description of the system implicated in the two mishaps exceeds the scope of this discussion.  However, for a brief, non-technical overview of the Maneuvering Characteristics Augmentation System (MCAS) identified by the FAA as the common cause of the Lion Air and Ethiopian Airlines accidents, its intended function, interaction with pilot inputs, and its effects on flight characteristics, see Campbell, supra note 6.

[24] Staff of H. Comm. on Trans. and Infrastructure, supra note 16, at 103; Jack Nicas et al., Boeing Built Deadly Assumptions in 737 Max, Blind to a Late Design Change, N.Y. Times (June 1, 2019), https://www.nytimes.com/2019/06/01/business/boeing-737-max-crash.html (noting that when initially designed, MCAS could only move the stabilizer approximately 0.6 degrees, but when certified, MCAS could move the stabilizer up to 2.5 degrees).

[25] Joint Auths. Tech. Rev., supra note 19, at 13–14.

[26] Id. at 13–14, 23–24.

[27] Joint Auths. Tech. Rev., supra note 19, at VII (noting that the act of delegating testing and evaluation to industry representatives is a well-established practice for the majority of civil aviation administrative bodies around the world).

[28] Id. at VII; Staff of H. Comm. on Trans. and Infrastructure, supra note 16, at 56–84 (discussing FAA oversight of the certification process and delegation of authority to Boeing).

[29] Aircraft Certification Reform and Accountability Act, H.R. 8408, 116th Cong. § 18(b)(3) (2020).

[30] H.R. 8408 § 18(b)(2) (2020).

[31] FAA, Summary of the FAA’s Review of the Boeing 737 MAX: Return to Service of the Boeing 737 MAX Aircraft 75 (2020), https://www.faa.gov/foia/electronic_reading_room/boeing_reading_room/media/737_RTS_Summary.pdf.

[32] H.R. 8408 § 18(b) (2020) (setting a deadline of 18 months after enactment for the FAA to submit a report to Congress regarding amended type certificates, and 24 months to improve the process of issuing amended type certificates).

Post Image: Undelivered Boeing 737 MAX aircraft that were grounded by aviation agencies, seen at parking lot at Boeing Field in Seattle, Washington, in April 2019. Via Wikimedia Commons.          

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9Feb

New Benefit Program Attempts to Bridge Digital Divide

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By Rachel L. Golden

To mitigate the spread of COVID-19, millions of students have been forced to move from in-person to distance learning. The success of distance learning hinges on a student’s ability to access the virtual classroom.[1] For two girls in East Salinas, California, distance learning meant having to sit in a Taco Bell parking lot to complete their homework.[2] In August 2020, a photo of these two young girls sitting in the Taco Bell parking lot went viral on Twitter because the parking lot provided something that their home environment could not: access to the internet.[3]

For many Americans, access to online services is not a given.[4] A 2018 Federal Communications Commission (“FCC”) study found that “there are more than 14 million people without any internet access and 25 million without faster and more reliable broadband access.”[5] The COVID-19 pandemic has further illuminated this digital divide.[6] The digital divide “refers to the growing gap between the underprivileged members of society . . . who do not have access to computers or the internet” and the more affluent Americans who do have access to computers and the internet.[7] This divide stems from not only not having access to the internet, but also lacking access to a device that can connect to the internet.[8]

The digital divide does not exclusively affect school-aged children, but the consequences of the digital divide are clear when examining these children.[9] Even prior to the current public health crisis, a 2018 Pew Research Center analysis showed that due to a lack of broadband internet access, poor school-aged children were less likely to finish their homework than more affluent students with access to the internet.[10] This problem has been exacerbated during the COVID-19 pandemic when the primary mode of teaching, at all levels, has switched to virtual learning.[11] Moreover, to complete remote work, students may be forced “to go outside and ignore quarantine or shelter-in-place guidelines” to find internet access—actions contrary to the original health and safety purposes of distance learning.[12]

However, COVID-19’s illumination of the digital divide has “produced new political will to reduce inequality in the global digital economy.”[13] Congress, in the most recent COVID-19 response and relief package, acknowledges the need for broadband funding and access.[14] The Consolidated Appropriations Act of 2021[15] (“Act”) establishes an Emergency Broadband Connectivity Fund (“Fund”) of 3.2 billion dollars.[16] The Act directs the FCC to use the Fund “to establish an Emergency Broadband Benefit Program, under which eligible households may receive a discount off the cost of broadband service and certain connected devices . . . relating to the COVID-19 pandemic.”[17]

Broadband providers’ participation in the Emergency Broadband Benefit Program (“Benefit Program”) is entirely voluntary.[18] However, if the provider chooses to participate, it must be designated as an eligible telecommunications carrier or be approved by the FCC.[19] Once approved to participate in the Benefit Program, the broadband provider will give monthly discounts “off the standard rate for an Internet service offering and associated equipment” to eligible households of up to $50 per month.[20] The broadband providers are then entitled to reimbursement from the Benefit Program for the discounts they have provided.[21] Moreover, the Benefit Program not only enables discounted internet services, but also encourages broadband providers to supply eligible households with a connected device, such as a laptop, desktop computer, or tablet.[22] The Benefit Program, however, is not without its limitations. For example, an eligible household that seeks a connected device is only eligible to receive one supported device.[23]

The Act directs the FCC to provide a public comment period and public reply comment period, each of twenty days, before the rules of the Benefit Program are established.[24] The FCC seeks comment on a variety of provisions.[25] Examples include seeking comment on “the eligibility and election process for participating providers” and what the definition of household is in reference to the Act’s requirement that the discounts and connected devices be provided to “eligible households.”[26] The public comment twenty-day window closed on Jan. 25, 2021, but the public reply comments window closes on Feb.16, 2021, so the scope of the rules of the Benefit Program are yet to be determined.[27]

The true aim behind the Benefit Program is to provide broadband internet access to low income households at affordable rates—especially those households with school-aged children.[28] Whether or not the Benefit Program will be effective in fulfilling this goal remains to be seen. However, it is clear that the Benefit Program is “an important Band-Aid that [will help] Americans [stay] connected,” even if solving the nation’s digital divide requires stitches.[29] Ultimately, the hope is that with increased access to internet services and connected devices, Taco Bell parking lots will remain parking lots and not double as schools.  

[1] Strengths and Weaknesses of Online Learning, Univ. Ill. Springfield, https://www.uis.edu/ion/resources/tutorials/online-education-overview/strengths-and-weaknesses/ (last visited Feb. 9, 2021).

[2] Lizzy Francis, Viral Photo Shows Kids with No Internet Using Taco Bell Wifi To Do Homework, Yahoo! News (Sept. 2, 2020), https://news.yahoo.com/viral-photo-shows-kids-no-171809219.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAG4dqe2tNs1lEJ4bvk99l0BosLqbgsIR5cnnqVYqWpXkh0dQy4YyB0GXkfPVoaWaSQUcKWHskKFOLhweLRqI1lj6_8sOHiIRvdtwAZjvKDYtmVdPKXr7YohJudkZUlOXPra-UbYSQeSCq9cfo1xuiry5ZcyLyV2OY1h2OVqUvwoX.

[3] Id.

[4] See Emmanuel Martinez, How Many Americans Lack High-Speed Internet?, The Markup (Mar. 26, 2020),  https://themarkup.org/ask-the-markup/2020/03/26/how-many-americans-lack-high-speed-internet#:~:text=There%20are%20more%20than%2014,census%20blocks%20and%20not%20households.

[5] Id.

[6] Id.

[7] Digital Divide, Stan. Univ. https://cs.stanford.edu/people/eroberts/cs181/projects/digital-divide/start.html (last visited Feb. 9, 2021).

[8] Id.

[9] See Martinez, supra note 4.

[10] Id.

[11] See id.

[12] Id.

[13]Closing Digital Divide in the Covid Era: Four Big Data Strategies, Digit. Divide Inst. https://digitaldivide.org/ (last visited Feb. 9, 2021).

[14] See Kelcee Griffis, COVID Bill Includes Broadcaster Loans, Broadband Funds, L.360 (Dec. 21, 2020) https://www.law360.com/articles/1339770/covid-bill-includes-broadcaster-loans-broadband-funds.

[15] Consolidated Appropriations Act, 2021, Pub. L. No. 116-260. (2020), available at https://www.congress.gov/bill/116th-congress/house-bill/133/text (Consolidated Appropriations Act) (enrolled bill).

[16] FCC Seeks Public Input on New $3.2 Billion Emergency Broadband Benefit Program, Fed. Commc’ns Comm’n (Jan. 4, 2021), https://docs.fcc.gov/public/attachments/DA-21-6A1.pdf.

[17] Id.

[18] Id. The discount on Tribal lands may be up to $75 per month, as opposed to $50 per month. Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Creating (Finally) an Emergency Broadband Benefit, Benton Inst. for Broadband & Soc’y (Jan. 5, 2021) https://www.benton.org/blog/creating-finally-emergency-broadband-benefit#:~:text=In%20the%20Consolidated%20Appropriations%20Act,the%20Emergency%20Broadband%20Benefit%20Program.&text=Broadband%20providers%20will%20be%20reimbursed,household%20is%20on%20Tribal%20land.

[29] Griffis, supra note 14.  

Post image: Two girls in East Salinas, California, rely on wifi from a Taco Bell restaurant to complete homework in a viral photo from August 2020. Via Luis Alejo on Twitter.

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15Oct

TikTok, Inc. v. Trump: Can TikTok’s U.S. Operations Last?

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Composite image created using an original photograph by Gage Skidmore of President Donald Trump, via flickr.com.

By Christopher R. Taylor

On August 6th, President Trump issued Executive Order 13,942 (“TikTok Prohibition Order”) prohibiting transactions with ByteDance Ltd. (“ByteDance”), TikTok’s parent company, because of the company’s data collection practices regarding U.S. users and its close relationship with the Peoples Republic of China (“PRC”).[1] Eight days later President Trump issued a subsequent order (“Disinvestment Order”) calling for ByteDance to disinvest from Musical.ly, an application that was acquired by ByteDance and later merged with TikTok’s application.[2] TikTok is now engulfed in a legal battle against the Trump administration fighting both of these orders and was recently partially granted a preliminary injunction from the TikTok Prohibition Order.[3] However, the question remains—how successful will TikTok be in stopping the orders and what effect does this have on future cross-border transactions?

The foundation for President Trump’s TikTok orders was laid over a year earlier with Executive Order 13,873.[4] This order declared a national emergency under the International Emergency Economic Power Act (“IEEPA”) because of the “unusual and extraordinary threat” of “foreign adversaries . . . exploiting vulnerabilities in information and communication technology services.”[5] This national emergency was renewed for another year on May 13th, 2020.[6] Shortly after this renewal, the Trump administration issued both TikTok orders.

The TikTok Prohibition Order delegated to the Secretary of the Department of Commerce the task of defining specific prohibited transactions with ByteDance within 45 days of the execution of the order.[7] Following the president’s directive, the Secretary issued five phased prohibitions on transactions with TikTok, all with the stated purpose of limiting TikTok’s spread of U.S. users’ sensitive personal information to the PRC.[8] The Department of Commence implemented these prohibitions based primarily on two threats: (1) TikTok would share U.S. users’ personal data with the PRC to further efforts of espionage on the U.S. government, U.S. corporations, and U.S. persons and (2) TikTok would use censorship on the application to shape U.S. users’ perspective of the PRC.[9]

While the Trump administration was at work attempting to remove or substantially change TikTok’s U.S. presence, TikTok did not stand by idly. Instead, TikTok and ByteDance initiated an action challenging the Trump administration’s authority under the Administrative Procedure Act (“APA”) and the U.S. Constitution.[10] After filing the action in the U.S. District Court for the District of Columbia, TikTok moved for a preliminary injunction.[11] On September 29th, the court partially granted the preliminary injunction.[12]

Among the various arguments presented for the preliminary injunction, TikTok’s strongest argument was that the Trump administration’s actions violated APA § 706(2)(C) by exceeding its statutory authority under the IEEPA.[13] The IEEPA prohibits the President from “directly or indirectly” regulating “personal communication, which does not involve a transfer of anything of value” or the importation or exportation of “information or information materials.”[14] The IEEPA does not define “information materials,” however, it does provide examples, which include photographs, films, artworks, and news wire feeds.[15]

TikTok argued both of these exceptions applied, making the Trump administration’s prohibitions unlawful.[16] First, TikTok argued that the information exchanged by its global users includes art, films, photographs, and news.[17] Therefore, the information exchanged on TikTok fits within the definition of information materials.[18] Second, TikTok argued most of the communications exchanged on the application are among friends, and thus do not involve anything of value.[19]

The government countered by arguing that neither exception applied, contending for a narrower interpretation of the IEEPA exceptions.[20] First, the government argued the information materials exception did not apply because the TikTok prohibitions only regulate “business-to-business economic transactions,” and does not regulate the exchange of “information materials” by TikTok users themselves.[21] In the alternative, the government asserted Congress did not intend to create such a broad exception that would allow foreign adversaries to control data services.[22] Second, the government argued that some communications on TikTok are of value to users and, even if all communications are not of value to all users, they are of value to TikTok itself.[23] The government asserted that the use of the application alone provides value to TikTok making the exchanged communications fall outside of the IEEPA exception.[24]

In partially granting TikTok’s preliminary injunction, the court found both exceptions applied to TikTok.[25] First, the court held the content on TikTok’s application constitutes “information materials.”[26] Although the government only regulates economic transactions, the prohibitions still indirectly regulate the exchange of “information materials.”[27] Thus, the Trump administration’s actions directly fit within the IEEPA exception barring indirect regulation of information materials.[28]

Turning to the second exception on value, the court recognized some information on TikTok was of value.[29] However, it found the majority of the information provided no value to users.[30] Furthermore, the government’s argument regarding the value of communications to TikTok was at odds with Congressional intent.[31] The court found if Congress meant to look at the value provided to the company, as opposed to the value provided to users, the exception would be read out of existence.[32]

After finding that both exceptions applied, the court found irreparable harm to TikTok and equity supported partially granting the preliminary injunction.[33] However, the court refused to grant an injunction blocking the whole TikTok Prohibition Order because only one of the prohibitions was an imminent threat to TikTok.[34] The injunction only blocked the prohibition on TikTok downloads and updates from online application stores and marketplaces, leaving the remaining four prohibitions unaffected.[35]

While it appears TikTok has won the first round of this legal dispute, this fight is likely far from over. In response to the grant of the partial preliminary injunction, the Department of Commerce explained it is prepared to “vigorously defend the . . . [Executive order] and the Secretary’s implementation efforts from legal challenges.”[36] Based on this strong reaction, the dispute seems fertile for further quarrels regarding the merits of both executive orders.

The current TikTok dispute and the Trump administration’s willingness to use the IEEPA will likely also have broader implications for cross-border transactions, especially those involving the Peoples Republic of China or personal data. Since its enactment in 1979, presidential use of the IEEPA has become more frequent and broader in scope.[37] Thus, it is likely presidential use of the IEEPA will continue to grow no matter the President. Furthermore, the Trump administration’s strong stance toward the PRC has exacerbated tensions and led to an uptick in investigations into cross-border deals with Chinese companies.[38] Therefore, in-depth looks at deals with Chinese companies will likely continue to be the norm, at least for the remainder of the Trump presidency. In an effort to avoid disputes similar to TikToks, business dealmakers should obtain clearance from the Committee on Foreign Investment in the United States before the completion of any cross-border transaction, especially those involving the PRC or personal data.[39]

[1] Exec. Order No. 13,942, 85 Fed. Reg. 48,637 (Aug. 6, 2020).

[2] Order on the Acquisition of Musical.ly by ByteDance Ltd, 2020 Daily Comp. Pres. Doc. 608 (Aug. 14, 2020).

[3] TikTok, Inc. v. Trump, No. 1:20-cv-02658, 2020 U.S. Dist. LEXIS 177250, at *11, *26 (D.D.C. Sept. 27, 2020).

[4] Exec. Order No. 13,873, 84 Fed. Reg. 22,689 (May 15, 2019).

[5] Id.

[6] Notice on Continuation of the National Emergency with Respect to Securing the Information and Communications Technology and Services Supply Chain, 2020 Daily Comp. Pres. Doc. 361 (May 13, 2020).

[7] Exec. Order 13,942, at 48,638.

[8] See Identification of Prohibited Transactions to Implement Executive Order 13942 and Address the Threat Posed by TikTok and the National Emergency with Respect to the Information and Communications Technology and Services Supply Chain, 85 Fed. Reg. 60,061 (Sept. 24, 2020) (prohibiting new downloads and updates from the app-store; servers supporting TikTok in the U.S.; content delivery services used by TikTok; internet transit or peering agreements; and the use of TikTok code, services or functions). The Secretary set up a phrased implementation of this order, making the app store ban effective September 20th, 2020, and the remaining four prohibitions effective November 12th, 2020. Id.

[9] Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for a Preliminary Injunction at Ex. 1, TikTok, Inc. v. Trump, No. 1:20-cv-02658, 2020 U.S. Dist. LEXIS 177250 (D.D.C. Sept. 27, 2020).

[10] Complaint at 30–42, TikTok, Inc. v. Trump, No. 1:20-cv-02658, 2020 U.S. Dist. LEXIS 177250 (D.D.C. Sept. 27, 2020). The specific counts in the complaint include allegations of (1) violations of APA § 706(2)(A) and § 706(2)(E), (2) violations of the First Amendment’s Right to Free Speech, (3) violations of the Due Process Clause of Fifth Amendment, (4)  ultra vires action under IEEPA because there is no national emergency, (5) ultra vires action because actions restrict personal communications and information violating IEEPA, (6) violation of Non-Delegation Doctrine of IEEPA, and (7)  violation of Fifth Amendment Taking Clause. Id.

[11] TikTok, Inc. v. Trump, No. 1:20-cv-02658, 2020 U.S. Dist. LEXIS 177250, at *11–12 (D.D.C. Sept. 27, 2020).

[12] Id. at *26.

[13] See id. at *21. 

[14] 50 U.S.C. § 1702(b)(1), (3).

[15] Id. § 1702(b)(3).

[16] TikTok, 2020 U.S. Dist. LEXIS 177250, at *14.

[17] Id. at *15–16.

[18] Id. at *15.

[19] See id. at *20.

[20] See id. at *16, *17–18, *20.

[21] Id. at *16.

[22] Id. at *17–18.

[23] Id. at *20. The government’s argument was that value is provided to TikTok simply by users’ presence on the application. Id.

[24] Id.

[25] See id. at *20–21 (“Plaintiffs have demonstrated that they are likely to succeed on their claim that the prohibitions constitute indirect regulation of ‘personal communication[s]’ or the exchange of ‘information or information materials.'”).

[26] Id. at *16

[27] Id. at *16–17.

[28] See id. at *17.

[29] See id. at *20.

[30] Id.

[31] Id.

[32] Id.

[33] Id. at *21–25.

[34] Id. at *26.

[35] Id. at *25–26.

[36] Commerce Department Statement on U.S. District Court Ruling on TikTok Preliminary Injunction, U.S. Dept. of Commerce (Sept. 27, 2020), https://www.commerce.gov/news/press-releases/2020/09/commerce-department-statement-us-district-court-ruling-tiktok.

[37] Christopher A. Casey et al., Cong. Rsch. Serv., R45618, The International Emergency Economic Powers Act: Origins, Evolution, and Use 17 (2020).

[38] See Julia Horowitz, Under Trump, the US Government Gives Many Foreign Deals a Closer Look, CNN (Mar. 16, 2018, 12:11 AM), https://money.cnn.com/2018/03/16/news/economy/trump-cfius-china-technology/index.html; Jeanne Whalen, TikTok was Just the Beginning: Trump Administration is Stepping Up Scrutiny of Past Chinese Tech Investments, Wash. Post. (Sept. 29, 2020, 3:12 PM), https://www.washingtonpost.com/technology/2020/09/29/cfius-review-past-chinese-investment/.

[39] See Adam O. Emmerich et al., Cross-Border M&A–2019 Checklist for Successful Acquisitions in the United States, Harv. L. Sch. F. on Corp. Governance (Jan. 30, 2019), https://corpgov.law.harvard.edu/2019/01/30/cross-border-ma-2019-checklist-for-successful-acquisitions-in-the-united-states/.

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25Feb

Lessons from Juliana on Climate Change Litigation

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By Andie Anderson

In December of 2019, Time Magazine made a teenage girl the Person of the Year.[1] As a fifteen-year-old, Greta Thunberg began skipping school and standing outside of the Swedish Parliament with homemade signs calling for urgent action on climate change.[2] Within just eighteen months, Greta’s activism would gain international attention and she would go on to eventually address the world in the 2019 United Nations Climate Action Summit.[3]

Punctuated by moments of highly emotional charges, Greta’s speech ignited a global surge in support of greenhouse gas regulation. Greta would go on to meet with the Pope, spar with the President of the United States, and inspire a global strike against climate change.[4] Young people around the world followed her example and began taking action within their own communities. In 2019, a group of twenty-one American high school students filed suit against the federal government, asking for immediate action on climate change and greenhouse gas regulation.[5]

The students’ suit presents an important question under American law. In the face of an executive branch who refuses to acknowledge the reality of climate change, what role can the courts play to advance regulation of greenhouse gases and mitigate temperature increase?

The Supreme Court has previously allowed suits against the federal government over greenhouse gases and climate change. In Massachusetts v. EPA, a group of states, local governments, and environmental actors brought suit against the Environmental Protection Agency (EPA), alleging it acted arbitrarily in denying a petition for rulemaking.[6] In October of 1999, fifteen organizations filed a rulemaking petition to the EPA, asking it to regulate greenhouse gases.[7] Fifteen months later, the EPA requested public comment on the petition for rulemaking.[8] Two years after the comment period, and despite the EPA issuing a report that human generated greenhouse gases caused global temperate increases, the EPA denied the rulemaking petition.[9] In its denial, the EPA explained that regulating carbon dioxide and other greenhouse gases was unwise considering the charged political nature of the decision.[10] The petitioners brought suit against the EPA, arguing it failed to give a statutorily required reasoned basis for its decision to decline rulemaking.[11]

The EPA challenged the standing of the individual plaintiffs to bring suit.[12] The EPA argued that under the modern Constitutional standing rule, a plaintiff must show that they suffered “a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.”[13] Under the doctrine of Constitutional standing, the harm must be individualized.[14] Individuals who are merely vindicating the public’s general interest in the proper administration of the law do not have standing to sue.[15]

The EPA argued that, because the harm of global warming and its failure to act “inflicted widespread harm” and not individual harm, the plaintiffs could not have standing.[16] The Supreme Court disagreed. The Supreme Court pointed out that the Administrative Procedures Act (APA) authorized lawsuits against agencies without the need to meet the “normal standards for redressability and immediacy.”[17] Instead, Congress authorized statutory standing to those that bring a “challenge the rejection of its rulemaking petition as arbitrary and capricious.”[18] The Supreme Court held that because the APA authorized a lawsuit for the EPA’s failure give a reasoned basis for its refusal to promulgate a rule on carbon dioxide, the plaintiffs had standing to sue.[19]

The result of the Massachusetts decision was a remand to the EPA for further proceedings.[20] If the agency wanted to decline the petition for rulemaking, it would need to provide a reasoned basis as required by the APA. However, by the time the Supreme Court issued its decision, Obama won the presidency and took office. Compared to the previous administration’s hostility towards climate change,[21] this new administration was willing to embrace scientific evidence of human activity in temperature increase and regulate relevant gases.[22] On remand, the Obama-era EPA began procedures to promulgate a rule regulating carbon dioxide emissions.[23]

When President Trump took office in 2017, the United States again re-entrenched itself in climate change denial.[24] The Sabin Center for Climate Change Law tracks Trump administration actions on climate change in a Climate Deregulation Tracker.[25] To date, the current administration has taken over 130 actions de-regulating greenhouse gases.[26]

In this climate era, twenty-one students filed a lawsuit against the President, his cabinet, and the EPA, asking for action on climate change.[27] The high schoolers charged the federal government with intentionally encouraging the consumption of fossil fuels and the production of greenhouse gases, despite knowing of the risks of global warming.[28] The appellate court described the scientific record submitted by plaintiffs as “extensive” and leaving “little basis for denying that climate change is occurring at an increasingly rapid pace” as a result of human activity.[29] The teenagers claimed that the federal government’s contribution to climate change violated their due process rights, the right to equal protection under the law, rights under the Ninth Amendment, and the public trust doctrine.[30] The high schoolers sought for declaratory and injunctive relief, asking the court to order to government to implement a plan phasing out all fossil fuel emissions and drawing down excess atmospheric greenhouse gases.[31]

The Ninth Circuit reluctantly concluded that injunctive relief was beyond its constitutional power to grant because the plaintiffs lacked standing to sue.[32] Unlike the plaintiffs in Massachusetts, the students in Juliana did not bring a challenge under the APA. Thus, in order to obtain injunctive relief, the students needed to meet the more rigorous standards of injury and redressability under Constitutional standing.[33] The court found that plaintiffs met the injury requirement of standing by pleading personal and particularized injuries.[34] One plaintiff had to leave her home in the Navajo reservation because of water scarcity, another had to leave her home because of persistent coastal flooding.[35] However, plaintiffs’ claim failed as to court redressability.[36] For the sake of standing analysis, the court assumed that there was a substantive right to “a climate system capable of sustaining life.”[37] Because enjoining the government would prevent it “from exercising [its] discretionary authority granted by congress,” court intervention would pose a substantial interreference with the co-equal political branches of the government.[38] In the end, affirmative action to address climate change presented a political question, and was not within the authority of the judicial branch to resolve.[39]

Massachusetts and Juliana teach a valuable lesson on the role of courts in in the climate change fight. Massachusetts is proof that courts may be a vehicle to propel federal action. However, even if a healthy climate is a substantive right, the method for achieving it is a political question. Thus, as Juliana teaches, any successful lawsuit must not rest on the violation of a substantive right, but procedural one. In the future, activists should watch federal agencies closely, stay involved in the development and repeal of regulation, and bring suit under the provisions of the APA.

[1] Charlotte Alter, Suyin Haynes, & Justin Worland, Time 2019 Person of the Year: Greta Thunberg, Time, https://time.com/person-of-the-year-2019-greta-thunberg/.

[2] Id.

[3] Id.

[4] Id.

[5] Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020).

[6] Id. 549 U.S. 497 (2007).

[7] Id. at 510.

[8] Id. at 511.

[9] Id. (citing 68 Fed. Reg. 52922 (Sept. 8, 2003)).

[10] 68 Fed. Reg. at 52929–31. Note, the EPA also argued that, despite its previous stance on the interpretation of the Clean Air Act, the act did not actually included carbon dioxide and other greenhouse gases. Massachusetts, 549 U.S. at 511. The court ultimately found against EPA on this matter, and held that the statute did authorize to EPA to regulate greenhouse gases. Id. at 528.

[11] Id.at 514.

[12] Id. at 517.

[13] Id.

[14] Id. at 516.

[15] Id. at 516–17.

[16] Id. at 517.

[17] Id. at 517–18 (citing U.S.C. § 7607(b)).

[18] Id. at 520 (citing U.S.C. § 7607(b)(1)).

[19] Id. at 518.

[20] Id. at 535.

[21] Andrew Grice, Bush to G8: ‘Goodbye from the Worlds Biggest Polluter’, Independent (July 10, 2008), https://www.independent.co.uk/news/world/politics/bush-to-g8-goodbye-from-the-worlds-biggest-polluter-863911.html.

[22] The Record, Climate, The White House, President Barack Obama (last visited Feb.18, 2020), https://obamawhitehouse.archives.gov/the-record/climate.

[23] 74 Fed. Reg. 66496 (Dec. 15, 2009).

[24] See, e.g., Helier Cheung, What Does Trump Actually Believe About Climate Change?, BBC News (Jan. 23, 2020), https://www.bbc.com/news/world-us-canada-51213003.

[25] Climate Deregulation Tracker, Columbia Law School (last updated Jan. 16, 2020), https://climate.law.columbia.edu/climate-deregulation-tracker.

[26] Id.

[27] Juliana, 947 F.3d at 1165.

[28] Id. at 1166–67.

[29] Id. at 1166.

[30] Id. at 1165.

[31] Id.

[32] Id.

[33] Id. at 1168.

[34] Id.

[35] Id.

[36] Id. at 1169.

[37] Id.

[38] Id. at 1170–72.

[39] Id. at 1173.

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14Feb

Now Checking Emotional Support Animals: DOT Regulation Redefines Service Animals

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By Corinne Spencer

After recent news stories covering the emotional support peacock stopped by airport security and the attack by an emotional support dog that left a Delta passenger with 28 stitches, the Department of Transportation (DOT) is giving airlines the regulatory means to crack down on any and all pets boarding planes unchecked under the label “emotional support” animals (ESAs).

The Americans with Disabilities Act (ADA) protects owners and their animals from discrimination in public places by requiring most restaurants, hotels, and public services to accommodate the presence of service animals.[1] For purposes of the ADA, service animals are narrowly defined as “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”[2]  It does not cover ESAs which can be “certified” by various entities without any formalized training required in order to gain designation entitled to some other protections.[3]

The Air Craft Access Act (ACAA) extends similar rules to air transportation allowing passengers with service animals to fly with their animal in the cabin.[4]  However, the ACAA currently provides a broader definition of service animal than the ADA by including more species of animals and includes ESAs.[5]  This overbroad coverage without distinction between types of aid created a loophole many people take advantage of to designate their pets as ESAs and bring them onto planes under ACAA protection, even if they were not the anticipated beneficiary.

The ACAA guidelines for service animals and ESAs  on planes diverge from the general rules for pets on planes which place limitations on size, species, and breed of pet allowed in the cabins.[6]  General airline pet policies require most pets to be held in a cargo space on planes, which is pressurized for their safety and often considered more comfortable for pets because they are not cramped in small spaces with human travelers.[7]  These policies are intended to promote safety, ease of mobility, and accessibility for others in the plane cabin.  However, many pet owners view it as an inconvenience to travel separately. Under the ACAA, service animals are exempt from the policies affecting pet travel and are instead allowed to travel with their owners in the airplane cabin.[8]  The protections provided to service animals under the ACAA were created under the expectation that service animals are highly and specially trained and thus would not raise some of the same concerns as normal pets, such as attacking passengers or defecating in the aisle.  However, since ESAs receive the same ACAA protection to travel in plane cabins without the same level of training and behavioral obedience required of and demonstrated by service animals, this category of pets has caused major disturbance in terminals and in the air.[9]

Many pet owners began registering their average pets through the National Service Animal Registry or similar registries as ESAs and received certification without meeting any requirements or qualifications.[10] This registry’s site explains that any animal can be an emotional support animal, and they “do not need any specific training because their very presence mitigates the symptoms associated with a person’s psychological/emotional disability.”[11] This certification gets pets access to most flights in cabin under a pseudo-service animal identity. However, when these untrained pets defecate in public spaces, attack bystanders, or cause a scene in the way trained service animals would never do, their legitimacy is questioned.[12] Unfortunately, this has impacted the reputation of service animals as well, making some businesses unwilling to accommodate both types of animals, and sometimes explicitly discriminating against legitimate disabled individuals with service animals.[13]

Through the FAA Reauthorization Act of 2018, Congress specifically asked the DOT to implement new definitions and minimum standards for “service animals” in an effort to clear up the currently broad ACAA. [14]  The DOT has responded with a notice of proposed rulemaking (NPRM) to amend the ACAA guidelines to clarify what qualifies as a service animal and allowing airlines to more readily distinguish between true service animals, ESAs, and regular pets. This would ensure those intended to be protected by the ACAA are protected and also close the loophole that caused this problem to begin with. The DOT proposed regulation, titled, “Traveling by Air with Service Animals” redefines the category of protected animals and offers airlines the ability to set restrictions and ask more questions regarding ESAs.[15] The regulation hopes to respond to requests for clarity in policy, consistency between the ADA and ACAA as well as consistency across the airline industry.

First, the DOT seeks to redefine service animal similar to the ADA as “a dog that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”[16] Additionally, it specifies Service Animal Handlers as qualified individuals with a disability or their safety assistant, to further limit the use of service animals to passengers with disabilities. [17]  In turn, airlines could distinguish between service animals and ESAs, placing ESAs in the same category as pets.[18]

Second, the regulation sets a guideline for approved species. The DOT proposes that service animals be limited to dogs. While it considered miniature horses and capuchin monkeys as secondary options, both were rejected qualifying “service animal” status based on airplanes’ practical space limitations and close quarters, and comments highlighting the rarity at which these animals serve as service animals for traveling individuals.[19] It’s worth noting that this only means that airlines need not permit them unconditionally. Any airline may still accept these animals on board if they choose through make broader policies than the ACAA minimum requirements.[20]  Additionally, the DOT decided against breed restrictions in favor of an exception for airlines to always refuse service if any animals pose a health or safety threat.[21]  The DOT is still collecting comments on the need for any more limiting restrictions.

The NPRM proposes other general limitations to allow airlines to prioritize the safety of its passengers and staff. These include a tethering requirement so long as it does not interfere with the animal’s service, limitations protecting only one or two service animals per passenger with a disability, and a short list of reasons for which a passenger with a disability and her service animal can be refused service.[22]

The most burdensome impact of the new regulation is a requirement of government-issued forms to fly with a service animal and provide proof of the animal’s training and qualifications. [23]  While this burden will fall on passengers traveling with service animals, it will likely be outweighed by the freedom and safety those passengers and their service animals will enjoy due to the NPRM’s far reaching restrictions on other animals. By reducing the number of unqualified animals flying freely, service animals will face fewer distractions and dangers, while also being able to reclaim their positive reputation that has been stained by ESAs trying to bend the rules.

[1] 42 U.S.C. § 12182(a) (2018).

[2] 28 CFR § 35.104 (2016).

[3] U.S. Dep’t of Justice, Frequently Asked Questions about Service Animals and the ADA 2 (2015), https://www.ada.gov/regs2010/service_animal_qa.pdf.

[4] 49 U.S.C. § 41705 (2018); 14 CFR § 382.117 (2009).

[5] See 14 CFR § 382.117(f) (requiring miniature horses, pigs and monkeys to be accepted unless specific factors find the airline unable to do so, however, listing snakes, spiders, ferrets, and reptiles as species that never need to be recognized as service animals).

[6] See Pets, American Airlines, https://www.aa.com/i18n/travel-info/special-assistance/pets.jsp (last visited Feb. 1, 2020); Pet Travel on Delta, Delta, https://www.delta.com/apac/en/pet-travel/overview (last visited Feb. 1, 2020).

[7] See Pet Travel Decisions: Questions About Flying Pets in Cargo, Pet Relocation (Dec. 2011), https://www.petrelocation.com/blog/post/pet-travel-decisions-questions-about-flying-pets-in-cargo; Airline Pet Travel in the Cargo Hold, PetTravel.com, https://www.pettravel.com/news_pet_travel_airline_cargo.cfm (last visited Fed. 3, 2020).

[8] For example, airlines with size or weight restrictions on in-cabin pets cannot impose those limits on service animals. See, e.g., Delta, supra note 6 (“If your pet doesn’t fit in a carrier in the seat in front of you, you can ship your pet with our special shipping service Delta Cargo. Remember, special exceptions apply for passengers traveling with service animals”).

[9] See Paulina Firozi, An ‘Emotional-Support Dog’ Attacked Him on a Flight. He’s Suing Delta and the Owner, Wash. Post (May 29, 2019, 4:09 PM), https://www.washingtonpost.com/transportation/2019/05/29/an-emotional-support-dog-attacked-him-flight-hes-suing-delta-owner/; Hugo Martín, Emotional Support Animals Snap, Bark, and Cause Disruption, Most Flight Attendants Say, LA Times (Sept. 15, 2018, 10:00 AM), https://www.latimes.com/business/la-fi-travel-briefcase1-emotional-support-animals-20180915-story.html.

[10] Dawn Gilbertson, American Airlines Flight Attendant Bitten by Emotional Support Dig, Requires Five Stitches, USA Today (July 23, 2019, 6:05 PM) (“Critics have complained passengers are able to get instant certification for an emotional support animal, also called a comfort animal, online, and that many aren’t properly trained.”)

[11] Nat’l Serv. Animal Registry, https://www.nsarco.com/esa-registration-and-your-legal-rights.html (last visited Jan. 24, 2020).

[12] See Firozi, supra note 9; Marina Pitofsky, Flight Delayed After Woman Brings ‘Emotional Support Squirrel’ on Plane, USA Today (Oct. 10, 2018, 7:11 AM).  In 2018, a USA Today reporter noted the urge for DOT to regulate emotional support animals recognizing that https://www.usatoday.com/story/news/nation/2018/10/10/orlando-florida-flight-delayed-after-woman-brings-squirrel-plane/1587164002/.

[13] See, e.g., Katrina Tilbury, Fake Service Dogs, Real Problems, AP News (May 16, 2018), https://apnews.com/1a28f8e528424fdca2040ea8139e3014/Fake-service-dogs,-real-problems.

[14] See Traveling by Air with Service Animals, 84 Fed. Reg. 6448, 6451 (proposed Feb. 5, 2020) (to be codified at 14 C.F.R. Part 382); The FAA Reauthorization Act of 2018, Pub. L. No. 115-254, Sec. 437 (October 5, 2018). 

[15] Traveling by Air with Service Animals, 85 Fed. Reg. at 6448.   

[16] Id. at 6474.

[17] Id.

[18] Id. at 6458.

[19] Id. at 6453–54.

[20] Id. at 6458. (“[w]hile the Department proposes to allow airlines to treat emotional support animals as pets rather than service animals, airlines could choose to continue to recognize emotional support animals and transport them for free pursuant to an airline’s established policy.”)

[21] Id. at 6464–65.

[22] See id. at 6476.

[23] Id. at 6475.

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