A piece about the Supreme Court that opens referencing Patrick Batemen means it has to be a good read!
As Patrick Bateman reflects on being a serial killer hiding among lawyers, he says, “There is an idea of Patrick Bateman; some kind of abstraction. But there is no real me. I simply am not there.” Under all of the Republican justices’ hand-waving about legal theories and interpretation, there is similarly no “there” there—there’s no attempt to say what government should look like or why it should be that way. It’s a vacuous, nihilistic black hole, and the “law” that accompanies it isn’t much better.
Over time, Republican judges and justices have pushed a few different jurisprudential theories, which again are just theories about how to interpret the law. When courts say they are using a “jurisprudential theory” or “interpretive methodology,” that suggests they are doing something other than politics. But just as jurisprudential theories about the Constitution can overlap with political philosophies, so, too, can jurisprudential theories about statutes.
Legal decision-making inevitably involves consulting background principles about the nature of government, and these legal-ish sources overlap with political philosophy. Sometimes jurisprudential theories will draw upon legal principles that are both legal principles and political philosophies—such as the idea of limited government. Other times, the connections will be more subtle. Take two jurisprudential theories that picked up steam during the Reagan years, the so-called Chevron doctrine and textualism. Both theories concern how to interpret statutes—textualism is about statutes in general, and Chevron was about the statutes concerning administrative agencies.
Over time, Republican judges and justices have pushed a few different jurisprudential theories, which again are just theories about how to interpret the law.
The Chevron doctrine told courts to defer to administrative agencies’ reasonable interpretations of statutes when they are unclear. The Chevron case concerned the Clean Air Act, which requires certain states to issue permits for new or modified “major stationary sources” of air pollution. The question in Chevron was what constitutes a “stationary source.” Does that mean the individual pollution-emitting devices within a power plant, or the whole entire power plant? If “stationary source” meant the whole power plant, then existing power plants could construct new pollution-emitting devices without obtaining a permit.
Naturally, Reagan’s EPA, led by Anne Gorsuch Burford, selected that interpretation, which imposed fewer constraints on polluters. In Chevron, the Supreme Court said that the EPA’s interpretation of the statute was fine, not because the justices thought it was correct, but because they concluded the statute wasn’t totally clear. Therefore, the Court reasoned, the expert agency that was more accountable to the people should resolve the issue rather than the federal courts. In the Chevron case, the Chevron doctrine inured to the benefit of Republicans’ preference for less regulation, but the doctrine could theoretically cut both ways: both Democratic- and Republican-led agencies should receive deference when they interpret ambiguous statutes.
Something similar could be said of another jurisprudential theory embraced by Republican appointees in the Reagan years, textualism. Textualism refers to the idea that federal statutes should be interpreted according to their text, i.e., their words. Textualism is supposed to prevent courts from focusing on the purpose of a statute, meaning what Congress sought to accomplish—the statute’s goals. In theory, textualism should not favor one political project over another, but textualism became an insurgent theory in the midst of Republicans’ booming hostility to industry regulation, which has shaped how textualism is understood and practiced to this day.
It’s kind of like originalism in that respect: originalism is supposed to be a neutral methodology that directs courts to focus on the ideas held by the people who ratified the Constitution. But that is not especially neutral because of the values and worldviews of our forebears, and because originalism took shape as Republicans sought to advance their views on certain social policies through the courts, which has shaped how originalism works to this day.
Some conservative scholars and judges have linked textualism to a theory that is hostile to the very existence of the administrative state—nondelegation. Bear with me for a second because this is going to sound technical, but it’s important. It could lead to the murder of the administrative state. Nondelegation is an idea, not a doctrine, because it’s not actually the law. Yet. (It’s more of a vibe.) The nondelegation vibe says that Congress generally cannot delegate certain authority (the authority to tell private parties what to do) to other entities, including administrative agencies. Some people (lawyers) have cobbled together a little cherry-picked history, a few selective quotations, and a side of political philosophy (of limited government) to insist that nondelegation is, or should be, the law.
Taken seriously, nondelegation would mean there would be no regulation, period, at least outside of some pretty narrow exceptions. It would mean that most everything would have to be done via statutes passed by Congress, the body of people who can’t even describe how the internet works. Yikes. Nondelegation is so extreme the Supreme Court has never really attempted to use it to prevent Congress from delegating authority to administrative agencies except in 1935, when the Court was insisting the federal government couldn’t address the Great Depression.
That year, the Court struck down two New Deal programs by relying, in part, on non-delegation principles. In one case, the Court declared that Congress had exceeded “limitations of the authority to delegate.” That was the last time the Court ever attempted to enforce a nondelegation constraint against Congress. Since then, the Court has upheld delegation after delegation, though a growing number of Republican justices would apparently like to take us back to the good old days of 1935 (which, to be clear, was during the Great Depression).
Textualism supposedly furthers nondelegation principles because it ensures that private citizens and corporations have to do only what is required of them by Congress. In the words of Judge Frank Easterbrook, one of Ronald Reagan’s most well-known and influential judicial nominees outside of the Supreme Court, textualism is about “Congress. Let it make the rules.” That idea echoes a sentiment behind the push to revive nondelegation, a desire to have Congress do everything by statute (which would probably mean a lot less industry regulation). One influential scholar (and later dean of Harvard Law School), John Manning, wrote an article in 1997 entitled “Textualism as a Nondelegation Doctrine.” The article has been cited in judicial decisions, including a 2022 case authored by one of Donald Trump’s judicial nominees.
Justices and judges could adhere to both textualism and Chevron since textualism is about statutes in general and Chevron was about a subset of statutes—those concerning administrative agencies. Having multiple theories and exceptions or addenda to those theories isn’t a bad thing; it’s inevitable in a complex world where a one-size-fits-all approach to judging won’t fly. But deciding when one theory applies rather than another, or developing different caveats or addenda to those theories, is part of why the ordinary business of law involves some discretion. That there are multiple jurisprudential theories, as well as limits to any jurisprudential theory, is one reason why law leaves some room for vibes.
Simply applying a single jurisprudential theory leaves some room for vibes. This is true for originalism, a method about how to interpret the Constitution. It is also true for methods of interpreting statutes, the bread and butter of what courts do. Jurisprudential theories such as textualism offer courts a bunch of fancy-sounding rules that seemingly add to the mystery of the judicial enterprise while in reality adding to judges’ discretion. Take the canons of construction, a set of rules about how to do textualism. Noscitur a sociis and ejusdem generis sound complicated and mysterious, but despite the fancy Latin terminology, they just refer to the idea that the meaning of words is informed by the words surrounding them. Imagine that someone says, “Get the pot.” Does the person mean the pot as in the pan, or the pot as in the marijuana? If the person had said, “Get the pot and the pan,” it’s probably the former; if the person had said, “Get the pot and the edible,” it’s probably the latter.
The Republican justices used this idea to nuke the CDC’s moratorium on evictions during the COVID-19 pandemic, turning the canons of construction into literal canons against the administrative state. The first sentence of a federal law gave the CDC authority to make “regulations” the agency determined were “necessary to prevent the introduction, transmission, or spread of communicable diseases.” The agency decided that an eviction moratorium was necessary to prevent the spread of COVID-19. So the Republican justices declared that “the second sentence” of the law “informs the grant of authority” in the first—and limits the agency’s authority. The second sentence said the CDC “may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles… and other measures, as in his judgment may be necessary”; that list of examples, the Court insisted, restricted the CDC to adopting measures for “identifying, isolating, and destroying the disease itself,” a phrase that is nowhere in the statute.
Maybe that’s right; maybe that’s wrong—sometimes accompanying sentences will limit nearby sentences, but sometimes they will not. The point is the Court made a choice about whether to read the list of possible regulations as illustrative additions to the general grant of authority or as a constraint on it. And what a surprise—the Republican justices made the choice that allowed the agency to adopt fewer regulations.
Some of their discretion arises because judges will decide how a theory applies to different kinds of facts. In applying both textualism and Chevron, the Republican-controlled Court began to consider the “significance” of agencies’ rules or regulations. How the Court defined significance wasn’t clear, but the Court suggested that, if a rule or regulation was economically significant in that it would cost a lot of money (to industry), courts might consider that as some evidence about what a statute meant—alongside the statute’s text, structure, design, and whatnot. That’s not especially textualist, but it’s an example of how theories such as textualism have exceptions and can be stretched and applied in ways that give discretion to judges.
While the Court embraced theories such as textualism and Chevron, the justices balked at more outlandish efforts to constrain administrative agencies. Such as nondelegation—the idea that most regulations are unconstitutional, and most everything has to be done by statute. Even the Republican appointees at the time couldn’t stomach that one. In 2001, the Supreme Court rejected an effort to make nondelegation the law of the land in a challenge to the Clean Air Act (CAA). The CAA authorized the EPA to make regulations setting national air quality standards for air pollutants. An industry group, together with states including West Virginia, challenged the law as unconstitutional. The challenge was so extreme, Justice Antonin Scalia rejected it. His opinion explained why the Court frequently allows Congress to delegate authority to agencies in extremely general terms such as allowing officials to regulate where “necessary to the public safety” or in the “public interest.”
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