Advisory Opinions - Supreme Court Wraps Up Term with EPA Decision

Episode Date: July 5, 2022

Last week the Supreme Court ruled to limit the Environmental Protection Agency’s power to regulate carbon emissions. David and Sarah are here to discuss the decision’s fallout and what it means for the rest of the administrative state. Plus: What did the Supreme Court say about Migrant Protection Protocols? And, understanding the controversial election-law case that the Supreme Court agreed to hear.   Show Notes: -West Virginia v. EPA -Sarah in Politico: “Why Is Congress Broken? Because the Other Branches Are Doing Its Job” -Biden v. Texas Learn more about your ad choices. Visit megaphone.fm/adchoices

This ad for Fizz is only 25 seconds long, but we had to pay for 30. Those leftover 5 seconds shouldn't just disappear, right? It's kind of like what happens to your unused mobile data at the end of each month. Except at Fizz, your unused data from the end of the month rolls over, so you can use it the next month. Hey, you paid for it, so keep it. Try the other side. Get started at fizz.ca. If you need some time to think it over, here's 5 seconds.

Certain conditions apply. Details at fizz.ca. And if you're just joining us, we're live from Evan's living room. It looks like Evan is about to purchase tickets to today's match. Kate, the real test is, will he use the BMO Toronto FC cashback MasterCard? Well, if he wants to earn cashback on his purchases, he will. Oh, hang on. He's at the computer with his card and he's done it. I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isker. And Sarah, are we technically calling this an emergency pod? I think it is.

Kinda. Because we're recording it on our normal recording time, but it's the 4th of July. Yeah. So, yeah. So this is extraordinary. It's not capital-y emergency pod. It is small-y emergency pod, but important stuff. But we felt like we couldn't leave it for another two days.

No, we especially couldn't leave it because we've got a guest coming at our next podcast, and that's going to be lit. And we did not want to subtract from the lit-ness of that particular guest. That's true. And also, we've got to start doing Supreme Court roundup stuff. I mean, time is ticking. Oh, I know. And we can't round up if we haven't finished the cases. So we've got to finish the cases today. Exactly. Then move on to roundup, which will involve stat pack, revisiting some of the hit parade cases, as my torts professor called them,

with reflections and thoughts and deeper dives on some of these, which we've teased out before, like the militia clause, like substantive due process, deep dive, lots to do in that roundup. And I'm really excited to get to the roundup, so we have to do this emergency pod. Yes, absolutely. And these are important cases. We've got three things we're going to talk about. We're going to do one, two, three, and then we are done.

We're going to talk about the EPA case. We're going to talk about the Migrant Protection Protocols case, the Remain in Mexico policy. And then we're going to talk briefly about a cert grant in what is called the Independent State Legislature Doctrine, which has real ramifications for elections. So, Sarah, let's start with EPA. Do you want to walk us through our friendly little EPA case? And then I've got an album side on why people are freaking out a little too much. Oh, man. All right. There's a lot to do on this case. I'm going to try my best. I would say I'm going to try my best to be brief. I don't know how brief. Let's just,

brief is going to be the eye of the beholder here. Yeah, yeah. Brief is less important than accurate. Oh, I love that. Okay. So, section 111 of the Clean Air Act is what this is all going to be about. And I really liked Justice Kagan's dissent in this case where she said, the question here is whether Section 111 confines the EPA to facility-specific technological measures or whether there is something broader. This case is going to turn around the first time the Supreme Court has ever actually used the term major questions doctrine. What's the major questions doctrine, you say? The idea,

and here I'm going to quote from Justice Gorsuch's concurrence in this case, he says, it's an identifiable body of law that has developed over a series of significant cases, all addressing a particular and recurring problem. Agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted. Scholars and jurists have recognized the common threads between those decisions. So have we. All right. So this is going to turn out to be a 6-3 case with Roberts writing the majority. It's going to follow along ideological lines. Gorsuch and Alito are going to write a concurrence as an ode to major questions doctrine. And then Kagan writing the dissent.

And David, I'll just say at the front end, I said heading into this term that this was going to be the most important case for me, that remains true. And I say importance in the sense that it will have the longest lasting impact on the law. Dobbs may be the one that's capturing the media attention, but in terms of what will affect your day-to-day life moving forward most often, I think it's going to be this case. What I did not anticipate was that each opinion in this case was, I think, the best that the court does. Like, this is the Supreme Court at its very best. The Roberts opinion is clear and persuasive and meant to persuade. The Gorsuch and Alito concurrence, just, it's all legal nerdery and doctrine and history, and it's fascinating.

But then, David, whoo, that Kagan dissent, really Kagan at her finest, and we'll get to it, don't worry. But I mean, she's quoting Scalia and a little bit of trolling, by the way. She quotes Adrian Vermeule at one point, the guy who we've talked about before, who's creating this common good constitutionalism flanking from the right of the Federalist Society of Textualism and Originalism. So citing him, I thought, was cute. This entire case, as I said, turns around Section 111D of the Clean Air Act. And here's what it says. This is about the EPA choosing, quote, the best system of emission reduction that has been adequately demonstrated for existing covered

facilities. It has been used very rarely in the past. Chief Justice, in his majority opinion, notes that, for instance, the agency established emissions limit on acid mist from sulfuric acid production it was noted in 1990 um here's from his majority it was thus only a slight overstatement for one of the architects of the 1990 amendments to the clean air act to refer to section 111d as, quote, an obscure, never-used section of the law. All right, so he says the agency, the EPA, identified three ways in the Clean Power Plan in which a regulated plant operator could implement a shift in generation to cleaner sources.

One, this is for existing power plants. One, an operator could simply reduce the regulated plant's own production of electricity. So as in do less. Two, it could build a new natural gas plant, wind farmed or solar installation, or invest in someone else's existing facility and then increase generation there. Finally, operators could purchase emission allowances or credits as part of a cap and trade regime. So, David, that's what the question is about, which is, is that actually what Section 111 says? Is that the best system of emission reduction for a coal power plant to simply don't be a coal power plant? And in short, power plant. Right. And in short, the majority is going to say, no, we just cannot say that that's what Congress meant to give the EPA the sweeping authority to all but shut down coal power plants.

The concurrence is going to say, ah, welcome to major questions, Dr. Land. Yep. And the dissent is going to say, I thought we were doing textualism this is now something pre-textualism where now you don't even have to look at the text anymore you can just say that um congress didn't ever give this power to begin with and kagan has i don't know david i found parts of kagan's dissent incredibly persuasive in part, I think, because I was so bought in on this idea of major questions, doctrine, and non-delegation, thought this case was pretty easy. Reading her dissent actually did make me step back a little. And I want to get into all those. But first of all, your reactions.

Yeah. So a couple of things off the top of my head. One is, you saw, there are various ways in words, Congress just delegated to administrative agencies something that it doesn't have the power to delegate to them. They just can't do it. They cannot send to an administrative agency the lawmaking or rulemaking authority it sent to them. That's one. That's a big one. It's sort of a, here's an unfixable problem you have, administrative state.

You can't have this power at all. And by the way, Gorsuch is going to have some major beef with a case that they punted on non-delegation doctrine called Gundy. That's going to be mentioned throughout this by both Gorsuch and the dissent. I want to put a pin in that because non-delegation doctrine is flaring up throughout this opinion that Gorsuch believes that they need to revisit that. And he's kind of annoyed that they didn't do it when he wanted to back in 2019. So non-delegation's a big one. Okay. Another one is overturning Chevron. So

Chevron is this case that provides, that requires courts to exercise deference to agency interpretations of their governing statute. So when a statute says to an agency it has power to do X or Y, and there's some ambiguity about what X or Y really means, then the courts are to defer to how the agency interprets its statute. So this is something, both of these doctrines, if either one of them is overturned, it's pretty big. It's pretty big for the ramifications for the administrative state. Now, major questions doctrine is not quite so big. Major questions doctrine does not say the Congress doesn't have the ability to delegate this to an administrative agency.

It just says it didn't. It didn't delegate it. And if it's going to delegate a power that big, it needs to do so pretty quickly. listen to this podcast, listeners here of the pod will remember, Sarah, a rather important case previously that one husband of the pod was involved in involving major questions. And that was the OSHA vaccine mandate case, where if you're going to grant OSHA the ability, a power so sweeping to require private sector workers and OSHA-covered entities to vaccinate their employees or have their employees vaccinated, there's going to have to be something there in the statute that is blinking red, they have this power.

read, they have this power. So I saw a lot of takes after the opinion was issued that seemed to indicate like this is gloom and doom for the administrative state. The administrative state is being stripped of its power. And I was thinking, no major questions. Yes, it's a limitation in that it is not granting an enormous amount of discretion to administrative agencies to sort of read their statutes extremely broadly. But at the same time, it's not nearly as restrictive on the administrative state as saying that this administrative agency can't exercise this power at all, even if Congress wanted it to. exercise this power at all, even if Congress wanted it to. This is saying Congress hasn't specifically said it wants it to, so therefore it can't exercise the power. That's a different thing and a more modest judicial determination. Indeed. So, all right, I want to take some of this piece by piece. First thing, let's revisit non-delegation doctrine. As you said, this is the can Congress delegate.

And the last time the court really discussed this was this case called Gundy out of 2019 that Gorsuch is getting a little hot and bothered by now, I think you can say. And that's the sex offender registry case. And basically what happens is in the sex offender registry case. And basically what happens is in the Sex Offender Registration and Notification Act of 2006, Congress makes all these rules for what happens if you're a convicted sex offender from that point forward. But what happens to the 500,000 people or so who had already been registered sex offenders? Congress couldn't decide. And so instead, they wrote into 35 USC section 20913D, the Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of

this chapter and to prescribe rules for the registration of such sex offenders. As Gorsuch said, yes, that's it. The breadth of the authority Congress granted to the Attorney General in these few words can only be described as vast. And Justice Alito's like, look, he literally says, if a majority of the court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort. But they're not.

And it would be, quote, freakish to single out the provision at issue here for special treatment. And the reason that I bring this up, David, is because both non-delegation, can Congress delegate that, and major questions doctrine, did Congress delegate it, are these pre-statutory questions. Before you get to the statute of the text, you're asking yourself, okay, but are we resolving ambiguity in the text? Are we having to analyze the text? No, because Congress can't give the authority that the agency is claiming, or Congress didn't give the authority. And so fast forward to now, and you can see Gorsuch is annoyed that they didn't deal with that part in Gundy, because now Justice Kagan in the dissent

is like, where is this all coming from? Butt textualism, you guys. And so to get to the chief for a second, he says, we typically greet assertions of extravagant statutory power over the national economy with skepticism. He mentions tobacco, the FDA claiming that it had authority over tobacco products as drugs and devices. That was rejected. The CDC's eviction moratorium, rejected. And he's saying, so look, we've been doing this.

We just haven't called it major questions doctrine in bold quotes. He says, this is still the chief and majority, thus in certain extraordinary cases, both separations of powers principles and a practical understanding of legislative intent make us reluctant to read into ambiguous statutory text the delegation claimed to be lurking there. To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to clear congressional authorization for the power it claims. We find it highly unlikely that Congress would leave to agency discretion,

in this case, the decision of how much coal-based generation there should be over the coming decades. Congress certainly has not conferred a like authority upon EPA anywhere else in the Clean Air Act. The last place one would expect to find it is in the previously little-used backwater section of 111D. And David, again, I came into this very like, yeah, major questions doctrine. This case seems really obvious to me because of the backwater aspects of an agency saying, we want to do this. Oh, and look, here's a sort of vague, broad language that's a catch-all provision. Let's make this catch-all provision now a huge part of what we do.

But there is something a little bit weird about this, David, because what if, and when it comes to climate change, Congress was like, we don't quite know what it's going to take in the decades to come. And so we are going to have a catch-all provision and it's going to be pretty ambiguous. And that way the EPA can figure out down the road whether, you know, what to do about this. And they did say systems. I don't know. I ended up, again, I still think major questions doctrine makes a lot of sense. Can Congress, did Congress give that power? of sense. Can Congress, did Congress give that power? But you get to Kagan's dissent, and let me actually just skip to the end of the dissent. Some years ago, I remarked that we're all textualists now, citing her 2015 lecture at Harvard Law School, although she had said it long

before then, I will note. It seems I was wrong. The current court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the major questions doctrine magically appear as get out of text free cards. I mean, if that's not Keegan at her best, I don't know what is. She is right. The court had never used the term major questions doctrine before. She is right. The court had never used the term major questions doctrine before. She's quoting Scalia. Congress knows to speak in plain terms and wishes to circumscribe and in capacious terms when it wishes to enlarge agency discretion. Her point being, so look to the text. Was Congress looking to circumscribe or was it looking to enlarge agency discretion?

She says in section 111, Congress spoke in capacious terms. It knew that without regulatory flexibility, changing circumstances and scientific developments would soon render the Clear Air Act obsolete. So hence, Section 11, it enabled the EPA to base emission limits for existing statutory sources on, quote, the best system. That's the statutory textual flexibility in this, she says. And by creating major questions doctrine, you create this pre-textual analysis rather than just having to grapple with the text itself. I don't know, David. I thought that's exactly why you should want Justice Kagan on this court if you are an ideological liberal, because she is keeping the conservatives, and especially Gorsuch,

you can tell the dissent really bothered him, keeping him on his toes. Yeah, you know, it's funny that you, I completely agree this is Kagan absolutely rubbing the majority's face in textualism. There's no question about it. But what was interesting to me is a part of her dissent actually, to me, didn't have the effect that I think she intended it to have. And this is if you, on page four of her dissent, she says, the limits the majority now puts on EPA's authority fly in the face of the statute Congress wrote. And she convinced me of that, Sarah. She says, when it broadly authorized EPA in Section 111 to select the best system of emission reduction for power plants. The best system, full stop, no ifs, ands, or buts of any kind relevant here.

The parties do not dispute that generation shifting is indeed the best system. Now, if I'm putting on my separation of powers hat here, I'm looking at that phrase, the best system, as one of the most sweeping, in many ways, sort of this idea that says, wait a minute, we're going to say, and this actually goes, I don't know if this is sort of in a never never land between major questions and non-delegation,

because it's like saying, we don't know. Y'all do what's best legislatively because that's what the rulemaking is. Rulemaking is legislative action. And Article 1 vests the legislative power in Congress. Now, that raises a question. How much of the legislative power that Congress has vested in it can it legislatively delegate to the executive? But this is, wow. Just do the best system, Sarah.

Just do the best thing. It's pretty remarkably. So that's fascinating because you're making the argument that, in fact, this maybe could have just been done under the non-delegation doctrine, that Gorsuch could have had his Gundy moment in the sun. Forget major questions doctrine because that is maybe the atextualist problem. But non-delegation doctrine is a pure separation of powers doctrine. Congress can't just tell a legislative agency, do our job for us. And so let me get a little bit to my Gundy beef here and why I mentioned Gundy throughout this case, because it's only mentioned three times throughout all 89 pages here. So here's Kagan. So in discussing the major questions doctrine and what qualifies,

Gorsuch tried to lay out some of how you know when to apply major questions doctrine, and one of them was, it's really an important question, an important subject for the economy or something. So Kagan, doubtless what qualifies as an important subject and what constitutes a detail may be debated. C.E.G. Gundy, the plurality opinion, and Gorsuch dissenting. Now remember, Alito said basically this is not important enough to revisit non-delegation doctrine here, and Gorsuch disagreed. So Kagan revisiting that wound. Now, Gorsuch, of course, has answers for this to Kagan. In his concurrence, he says, but recently our dissenting colleagues acknowledged that the Constitution assigns

all legislative powers to Congress and bars their further delegation. See, Kagan in Gundy. To be sure, in that case, we disagreed about the exact nature of the non-delegation inquiry courts must employ to vindicate the Constitution. But like Chief Justice Marshall, we all recognize the Constitution does impose some limits on the delegation of legislative power. David, though, I think you're exactly right what Kagan is saying is sure there are some limits to Congress giving power for instance the Attorney General she didn't think they had met that non-delegation problem in Gundy Gorsuch did okay but that is quite different than uh major questions doctrine where you don't get to the text because you're saying Congress didn't mean to do something that

important through broad language, it's a lot harder than non-delegation doctrine. Just saying you can't let an administrative agency legislate, that seems easier to discern, again, but see Gundy, where everyone seemed to disagree on that, versus, again, Gorsuch's, you know, he lays out first when you apply major question doctrine, or, yeah, major question doctrine first. The doctrine applies when an agency claims the power to resolve a matter of great, quote, political significance. Second, an agency must point to clear congressional authorization when it seeks to regulate, quote, a significant portion of the American economy. And third, it applies when an agency

seeks to, quote, intrude into an area that is the particular domain of state law. Okay, that third one maybe, but the first two are just, if it's a big deal, we expect Congress to say, we are giving the EPA extremely broad authority to regulate for the purposes of climate change. And here it is, like almost a throat-clearing exercise. But that's where I think Justice Kagan is persuasive. Why not just look at the text and decide whether this fits within what Congress delegated? Yeah, no, I think Hagan was quite persuasive

on the major questions piece of this. I think less persuasive on the non-delegation piece of this, but the case wasn't decided on a non-delegation basis. So I think she did a really good job of sort of saying, wait, whoa, whoa, whoa, hold on a second. Your major questions analysis here is flawed by the terms of the statute itself because the terms of the statute itself seem to give the EPA the ability to resolve this particular major question.

Best system, right? Best system means best system. You don't have the factual basis to draw any other conclusion other than what the EPA did was the best system. You don't have the factual basis to draw any other conclusion other than what the EPA did was the best system. And so, wait a minute, that's what, what are you talking about? Here's a textual analysis and isn't major questions ultimately rooted in a textual analysis? If you're going to say that, wait, the statute has to designate that the authority has been delegated. So I think she does a really effective job of poking holes in the major questions analysis here. Now, the interesting question are inherently, seemingly, really touchy-feely, malleable concepts, Sarah. Which I also hadn't fully thought before Kagan's

dissent. I was like, ooh, she's got a point. What is of economic importance, political importance? How is that not an eye of the beholder? Some people would say that, of course, the sex offender registry is of huge political importance. This is 500 million people. Sorry, obviously not 500 million, 500,000 people. That was going to be a lot of sex offenders. It's a lot of sex offenders in the United States. And just look at NBC. They have an entire long-running TV show dedicated to sex offenders, basically, that's very popular. So maybe that's of national importance. I totally agree. And again, just to revisit the statutory language, the best system

of emissions reduction that has been adequately demonstrated for existing covered facilities. David, you are exactly right. Non-delegation isn't mentioned once in any of these opinions. And yet, I mean, Gundy is, but not the term non-delegation doctrine. And yet, that to me looks like pretty broad sweeping legislative power. What, a single agency can now just pick the best system of emissions reduction, including shutting down coal plants, uh, that looks very legislative in its power. And it would be very interesting to see a version of this opinion, all of it as a non-delegation question. Okay. So the EPA says that they're relying on this to have the power to potentially shut down coal-powered power plants.

Okay, well, in that case, Congress can't delegate that level of legislative authority. That, to me, is a better solution to this than, I think, major questions doctrine, which felt very, as you said, David, in the Gorsuch concurrence as he's trying to lay out when we apply that. All of a sudden, I was like, wait a second. This is very hard to pin down. Yes. Side note, by the way,

he does quote Judge Sutton, guest of the pod, friend of the pod, and his book that we recommended, for instance. Yeah, yeah. No, it was the kind of thing that I'm reading the concurrence and getting less convinced. That's right.

It was one of those concurrences. And I thought he made a really good, like what he thought he was defending in major questions doctrine, I thought he was really making a case for non-delegation doctrine. He says, lawmaking under our constitution can be

difficult, but that is nothing particular to our time or any accident. The framers believe that the power to make new laws regulating private conduct was a grave one that could, if not properly checked, pose a serious threat to individual liberty. By effectively requiring a broad consensus to pass legislation, the constitution sought to ensure that any new laws would enjoy wide social acceptance, profit from input from an array of different perspectives during their consideration, and thanks to all this, prove stable over time. Yes, that's a great argument for non-delegation doctrine. Yes, exactly. But I don't think it's one for major questions doctrine, actually. Yes, especially considering how obviously broad the statute is and how obviously broadly the statute has been interpreted for a really long time.

I mean, the EPA is a powerful administrative agency. It is a powerful administrative scheme and has been for a very long time because it was designed to be really, really powerful. And this is the kind of thing that if you are worried about the administrative state, you're actually less angry at the EPA for exercising the power that it has been delegated. And you're more angry at Congress for sort of basically saying all the way back in the Nixon administration, oh, this whole clean power, I mean, clean air and everything, all of this, we're going to fix it now and forever by delegating the continued ability to legislate in this area to the executive branch now and forever, amen. And now we don't have to touch it or deal with any of the political fallout of our own decision-making because we can blame it all on the EPA, which again is exactly what Gorsuch is talking about in his concurrence on the sort of

general side where he says, permitting Congress to divest its legislative power to the executive branch would dash the whole scheme. He quotes Justice Breyer's book, Making Our Democracy Work from 2010, by the way. Legislation would risk becoming nothing more than the will of the current president, or worse yet, the will of unelected officials barely responsive to him. In a world like that, agencies could churn out new laws more or less at whim. Yes, non-delegation doctrine. Don't let Congress just stop doing their jobs, which is why, David, and I wrote this whole piece for Politico that we can put in the show notes,

I thought a loss for the EPA would be a huge win for climate change activists or really anyone who wants long-term, wants a problem addressed that requires long-term planning and change. Think immigration policy, climate change. You don't want agencies doing this, and you don't want Congress saying, we don't have to do it anymore. Let's just let agencies do it because you end up with the Clean Air Act, and it's not working very well. Right, right, exactly. And I look at it this way. So I think of it as a kind of a game of chicken, Sarah, between the looming reality. And we can do this in the environment. We can do this in immigration. We can do this in a number of areas.

It's a race between catastrophic real-world consequences and Congress becoming populated with responsible adults. And so... Wishing made it so. I know. So on the one hand, you have incredible tension in the system. And we'll get to this with migrant protection protocols. We've got a system here where, for example, and I don't want to steal too much thunder for migrant protection protocols cases, where Congress just has passed

a statute, but that has not provided the resources to fulfill its intent, plainly, obviously. And so it's put the administration's, successive administrations in a bind. So, and so administrations have done various things to try to do the best they can, and Congress has done jack and squat, okay? So what do you do if the courts say, well, the administration, administrations of whatever party are no longer going to be able to bail out Congress. And so therefore, real world problems are going to be right smack in Congress's face. And I think a lot of people hope that Congress will then go, oh, crap, we actually have to legislate. I fear that Congress will say, wait a minute, I can't really deal with that right now. I've got MSNBC at 630 and or I've got Fox at

650. And so that's the tension here is that if the court says, wait a minute, Congress, you still have to be a legislature and start striking down administrative enactments because Congress has to be a legislature. And Congress says, nah, nah, I don't think so. We prefer punditry, to use, you know, Jonah's Parliament of Pundits. But it kind of sets the system on a collision course with itself. And the administrative state sort of allows Congress to escape its responsibilities and really escalates the importance of presidential elections, which is causing its own problem. But what was the tweet I saw recently? And I think you interacted with it also,

that our AOT shirt should be something like, Congress, do your job. Yeah, yes. I've done. We would not need to do any more of this podcast if congress would do its job here come the carrots making their way up field followed by the whole wheat bread over to the two dozen eggs sir do you do this every time sorry i've been a little excited ever since i got this bmo toronto fc cashcard. Oh, and the broccoli boots it over the line.

What a goal. How would you like to pay, sir? Credit, please. Make every purchase a win with the BMO Toronto FC cashback mastercard with up to 5% cashback on your purchases in your first three months. Terms and conditions apply. Perfect segue to Biden v. Texas. Yes. So this is the Migrant Protection Protocols case. All right, let's start from the beginning a little bit here. Congress has said that the executive branch shall detain everyone they find crossing the border illegally. All right? Shall detain everyone they find crossing the border illegally. All right?

Shall detain. And then it says they've got two options. One, they may return people to a contiguous, if they came over a contiguous border, they can return them to that side of the border. Or they may parole them into the United States if it's in the best interest of the United States. And during the Trump administration, they said, we're going to return people to Mexico. They worked some stuff out with Mexico to do that, a foreign country, I might add. And then the Biden administration came in and was like, we're not going to do that anymore. We're going to parole people into the United States. Texas, among other states, sued and said, uh-uh-uh. In fact, it says, shall detain. And if you're not going to detain

everyone, which everyone agrees is not possible and is not happening and wasn't happening during the Trump administration, it should be noted, that then you must send people to mexico unless you're going to do that case by case analysis to parole people into the united states if it's in the best interest of the united states the biden administration responded with a few arguments um one of which was you can't make us negotiate with a foreign government when the foreign government then knows that we have to come out with a certain resolution, which is that they take people into their country. That's not going to work. And remember, the vast majority of these people we're talking about aren't Mexican citizens.

They're citizens of a third-party country, and we're telling Mexico they have to take these people. We can't do that with people at Gitmo, for instance. This is a whole problem of detainees at Guantanamo Bay, is in order to get them out of Guantanamo Bay, some other country has to be willing to accept them. And a lot of countries are like, no, thank you. I don't want someone who you think is a terrorist involved in 9-11 or similarly terrorist-related plots. Okay, so that was the Biden administration's first answer. Their second answer was, look, we are looking at the best interest of the United States to parole people in because the alternative is to negotiate with this foreign country in a way that wouldn't be in our interest or some other lesser humanitarian option. So therefore, we are fulfilling this statutory

obligation. All right. So the court, in one of the more interesting divides, of course, it's a 5-4 case with the chief and Kavanaugh joining with the three ideological liberals saying the Biden administration can do what they want on this. It is simply their choice. That's what may return means. It's not shall, it's may. And it's not our problem if they're violating the shall language because that's up to Congress. Then you have Barrett actually agreeing with that may versus shall distinction. She has a jurisdictional point that the courts actually can't take this case in the first place, shouldn't have enjoined it at the district court level. And so it shouldn't have, that injunction therefore shouldn't have

gotten to the Supreme Court. So in that sense, it's a 6-3 case. And then of course you have Alito Gorsuch, Thomas in the dissent saying, no, look, I get that it says shall, but then it gives two options and you have to use one of those two options. Therefore, you shall detain everyone. And if you're not detaining them, then you need to return them or do this case by case paroling option that makes the may language shall language. David, I thought this was fascinating of like, nope, we take these three provisions separately. One says shall, one says may, and one says may. Or, no, no, they all work in concert. The shall language makes the two may options alternatives, making each one of them shall if you don't pick the alternative one. I thought both were very well written,

very persuasive in their own right. But really the winner of the day for me was Kavanaugh's concurrence, where, David, to our point, on our t-shirts that people seem to want to make out there, here's Kavanaugh writing. I write separately to briefly elaborate on my understanding of the relevant statutory provision. Option one, DHS may grant non-citizens parole into the United States if parole provides a, quote, significant public benefit. Option two, DHS may choose to return non-citizens to Mexico.

In general, when there is insufficient detention capacity, both the parole option and the return to Mexico option are legally permissible options under the immigration statute. And then he says, one final note, the larger policy story behind this case is the multi-decade inability of the political branches to provide DHS with sufficient facilities to detain non-citizens who seek to enter the United States pending their immigration proceedings. But this court has authority to address only the legal issues before us. We do not have authority to end the legislative stalemate or to resolve the underlying policy problems. In other words, Congress, do your job. Yeah, it's really, really amazing. So you have a statute that says you shall detain,

you shall detain, and then Congress goes ahead and for years does not provide the resources, for years does not provide the resources. Decades. Decades does not provide the resources to detain. So Congress has to appropriate funding. It just doesn't do it. It doesn't do it. And so then you're left with these two may options. You know, you may return them or you may release them. And I think the majority has the better of the argument here. But I thought, you know, Alito, and it was Alito's dissent, he has a very good job of sort of saying, well, wait a minute, if you don't say, if you take the may release, if the administration essentially says may not release instead of may release, that it's just not going to do it, you're just writing out part of the statute that's just essentially gone at that point.

And I get that, but it's also may is a discretionary word. It is an absolutely discretionary word. But again, Sarah, what we're doing, and this is something that I think really goes to a lot of the intensity of the moment, because if there's one thing that is absolutely clear is we are ending the most intense Supreme Court term of my lifetime.

And well, 1973 was Roe was decided as four. So I don't remember the atmosphere after that. was Roe was decided as four. So I don't remember the atmosphere after that. But this is the most intense Supreme Court term, certainly of my adult lifetime. And there is something that's really clear that emerges from almost all of this intensity here and an enormous factor in almost all of this intensity. Because let's just be honest, the Coach Kennedy case would not be as important to people if it wasn't against the background of everything else. Neither would Carson v. Macon, the main voucher case. It's a very small case, very incremental change in the law. But what you're looking at, though, is with the background of Dobbs and then now EPA, and

then the controversy around here is you really are seeing the absolute seismic political slash cultural consequences of when the branch of government, which is supposed to be the most powerful, which the whole system is designed around the idea that Congress is the most powerful, which is closest to the people, it's the most democratic branch of government, becomes voluntarily the least powerful, becomes fundamentally inactive across a whole spectrum of things. And there's sort of a conservative response to this. It says, well, good. I like gridlock. Hmm. Okay. I get it in the sense of gridlock stopping bad policy from becoming law, but what about Congress passes a law that puts in place a legal obligation and then deprives the system of the

ability to meet the obligation that Congress has opposed on it? You know, like that's, meet the obligation that Congress has opposed on it. You know, like that's that kind of stuff gets it to just does government work kind of territory. Right. And so what ends up happening is we're constantly punting to the courts now, just sending volleys of footballs, punting into, you know, into the Supreme Court. And this is what you end up with. And even Dobbs applies there. There was a time when Obama, remember in 08, he's saying, okay, well, we're going to pass a law that's sort of a fail-safe if Roe is ever reversed.

Doesn't happen. Doesn't happen. He had a filibuster-proof majority. Didn't happen. Doesn't happen. He had a filibuster-proof majority. Didn't happen. And so, you know, a lot of people are furious right now who are pro-choice, who are furious at the Supreme Court. There are multiple opportunities between 1973 and 2022 where Democratic supermajorities could have protected abortion rights to some degree and chose not to do it. It was left entirely to the judiciary at the federal level. And so again and again, we're putting these strains on the judiciary. Now, to be clear, I didn't want Congress to do it, but Congress certainly had the

opportunity to do it and didn't. And so this is just happening time and time and time again so that's in end rant what's also fascinating in both of these cases you know the biden administration loses in the apa they win in migrant protection protocols and it's worth noting for people listening that in neither case does it matter at all because the clean power Plan set out these standards back in the Obama administration that have been met and exceeded, as it turns out. So all of the hand-wringing of like, oh my God, this is going to shut down coal-powered plants didn't happen, isn't going to happen. The question was whether the EPA had the power to do it.

But in practical reality, the Clean Power Plan lacked ambition, I guess, in a lot of ways, you could say. As Justice Kagan noted, it anticipated market forces. It didn't cause them because it was enjoined right away before it ever took effect. And in this case, David, on the Remain in Mexico policy, I think people have this impression that, you know, 100,000 people who were caught on our side of the border last month, you know, who came over the southern border could simply be returned over to Mexico and they were told to like sit there and wait there patiently. That's not true.

We're talking about at the peak of remain in Mexico, a few thousand people, a drop in the bucket compared to the number who were crossing the border. Now, the dissent makes the case that actually the policy itself created a disincentive for people to cross the border in the first place. Maybe yes, maybe no. There's good arguments on both sides of this. The numbers certainly went down during the Trump administration. I don't think that's because of the remain in Mexico policy. I think that was a the economy was doing better in some of these countries and also be. Yeah, they thought that Trump had this ability to secure the border that he actually didn't have, but it created a deterrent effect regardless. to the remain in Mexico policy itself, it has never been this cure-all mechanism by which everyone simply waits on that side of the border to come over under any administration. Right, right. And one thing that was interesting to me was, as you as you indicated Sarah that this remain in Mexico program plan

if you if all you knew about it was what you saw sort of like covered in um in both in both right-wing media and much of mainstream media you would think that Trump was sending everybody back to Mexico until you read the opinion you don't realize how small a number, and this is reiterated a number of times, that's a small number of people sent back into Mexico. And so, yeah, both of these cases didn't really change a whole lot of facts on the ground, but they sort of had a lot to say about, you know, theoretically, who can, who can change the facts on the ground. And that's where, that's where the impact lies. And how great, by the way, that one is on climate change and one is on immigration. Again,

two things that really only Congress can do. The administrative agencies are simply not equipped to tackle something long-term where you can't simply switch policies every four years. Haven't we proved that doesn't work? So yeah, everyone agrees that every administration has been in violation of the shall detain language in the INA, but no one wants to do anything about it. And by no one, I mean Congress. By no one, I mean those dudes over there in Congress. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited

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Shall we do a little independent legislature doctrine? Yes. Yes. This is going to be interesting. So this is a new case, Moore v. Harper, that is coming out of North Carolina. The Supreme Court has taken it up. And this comes from a dispute over congressional maps. And this is coming from Amy Howe's really great analysis and really great summary in SCOTUS blog. Amy Howe, former guest of the pod, says, after the Republican-controlled North Carolina legislature adopted a new congressional map in early November 2021, a group of Democratic voters and nonprofits went to state court to challenge the map. They contended, among other things, because the state is roughly divided between Democrats, Republicans, and unaffiliated voters. The new map, which likely would have allowed Republicans to pick up two more seats in Congress, giving them as many as 10 of the state's 14 seats, was a partisan gerrymander that violated the state's constitution. And so essentially, to just boil down all of the procedural rigmarole here, the real question is, and it's simple as possible, who has the authority to govern federal unchecked by any other branch of state government,

or does when the Constitution talks about granting legislatures the power to regulate elections, that it's sort of a shorthand for saying, well, the the states regulate not specifically the state legislature and only the state legislature but the idea that it is only the state legislature unchecked by the state by the governor unchecked by the um the state judiciary that's called the independent state legislature doctrine or theory. And this got became prominent in the 2020 election because this was an argument advanced by the Trump team to say that a lot of pandemic era election reforms, for example, more drop boxes or extending absentee ballot time, you name it, mailing out a bunch more absentee ballots, that because those came through state legislative and they came through, I'm sorry, state administrative organs, usually secretary of state's office or something like that, or came through state courts, that they were presumptively invalid, that the only legislative changes and reforms can come

through the state legislature and only the state legislature. And so that's the heart of it. That's why a lot of people are really alarmed about this case, because in theory, the next effort to steal an election will rely on state legislatures acting on their own, not subject to an executive veto or a gubernatorial veto, not subject to state court oversight, just state legislatures acting on their own to reform or perhaps even change election results. So that's why this is going to be very interesting. Yes. But let's talk about what this case is actually about and what it's not about.

Okay. Article 1, Section 4. The times, places, and manners of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof. Now, as you can look throughout the Constitution, they know how to use the word states. Each state at that point could decide its own form of government. They could have two legislative bodies, a governor, the attorney general could be appointed or elected. That wasn't yet decided by the Constitution. And so this language is up for a lot of interpretation of by the legislature thereof. Did that mean simply by the government

created by the state? Or did it mean only the legislature? Okay, so that's one very interesting, but somewhat esoteric question, frankly. But David, as you said, everyone thinks there's a lot at stake here. Even in the cert petition for the North Carolina legislature, let me just read a paragraph. The question presented in this case at root is who is vested with the power to decide the when, what, where, and how of the American people's exercise of self-government, state legislatures or state judges? American people's exercise of self-government, state legislatures or state judges? Indeed, the answer will carry implications for every aspect of what happens every two years on election day. At stake is the allocation of the authority to provide a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting,

protection of voters, prevention of fraud and corruption practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns. And of course, points back to the last two years. For instance, who gets to decide the deadline for the receipt of mail-in ballots, witness requirements for absentee voting, and the determination of the shape of congressional districts in the first place. But David, set all of that aside for a second, because the court doesn't need to reach any of it to decide this case. Because this case is the state legislature passed a congressional map, redistricting map. The court threw it out based on, I mean, the most catch-all provision one could imagine, that, you know, they need a Republican form of government, basically. And then the state legislature passed a new map. The court threw that out again, drew their own map, and said this is the map that we're holding congressional elections under. That, to me, seems like a very clear violation of Article 1, Section 4, because certainly, even if it means the elected government instead of the legislature,

or it means the legislature, either way, the judiciary branch doesn't win that fight of the state. And so I do think there's a way for the court to decide this quite narrowly. If they don't want to, and if we're going to decide what legislature means in Article 1, Section 4, I still think it's important for people to realize that we're not talking about the legislature being able to decide after an election some change in the law. We're talking about the time, place, and manner before the election, which again will include do absentee ballots need a signature and a date, that case we talked about in Pennsylvania. I think the outcome of a case like that, where the courts simply say that having to date your signature is not required because the date would be stamped on it when it was mailed, well, if the legislature says that

you personally need to date it, maybe the outcome of a case like this could affect that. But it will not affect the election has happened. We don't like who won. And therefore, we're now going to pass a law or something else to decide to throw out these ballots or change who's counting the ballots. Changes after the election aren't going to be implicated in this. That's not to say that, again, it's not really important, as we learned after 2020, of who gets to decide. But that was going to be important no matter what, David, because states passing these laws through their legislatures are always going to be important to the outcome of elections. Right, right.

And it's not quite, so again, when we're talking about the, as you read, the times, places, and manners holding elections for senators or representatives shall be prescribed in each state by the legislature thereof. But the Congress may at any time by law make or alter such regulations. Huh, interesting. So there's Congress, if it does its job, can do something about all of this. And we're then saying that, well, the Supreme Court's going to decide this all, but hovering right there, Congress made any time by law make or alter such regulations. Fascinating how central Congress is to our scheme, Sarah.

But I digress. This is actually a different clause than what really came into the fore during the effort to steal the election, which was Article 2, Clause 2, Article 2, Section 1, Clause 2, each state shall appoint in such a manner as the legislature thereof may direct a number of electors equal to the whole number of senators and representatives. And the argument there was, does this mean that when the legislature decides the manner, it's deciding the big picture manner, the governor appoints the electors or the legislature appoints the electors or the legislature decides it's going to be popular vote that appoints the electors and not the granular detail that you see in Article 1, Section 4, Clause 1, where times,

places, and manners. And so the question was in the elector's context of choosing a president, did the word manner mean essentially all of the granular ways, such as when absentee ballots are mailed out, where the absentee ballot drop boxes, like everything to do with selecting a president, or just the general way in which the president is selected. And this was actually adjudicated during the Steele effort, not by the Supreme Court. But circuit court said, no, manner just means popular vote. It doesn't mean all of the various ways in which the popular vote is conducted. So I just didn't want to confuse these two clauses, one implicating the election for

senators and representatives and the other one implicating the election of electors or the selection of electors for president. Is that clear as mud? Because I don't want to lose people on this. No, I think it's great. And again, this will be argued in the fall most likely. Definitely one of the top cases. And it'll be like Dobbs in the sense that I think it will be the top case next term in a lot of ways, despite Harvard, despite the Voting Rights Act case. But it doesn't mean that it's the most important legally,

if that makes sense. Right. No, completely agree. All right. Is that it for this small e-emergency pod? I think we got through OT21. And don't worry, that doesn't mean there's not still a lot to get. Yes.

We've got other stuff. We've got some cleanup to do. We got cleanup. For sure. We've got a backlog. But've got some cleanup to do. We've got cleanup. For sure. We've got a backlog. But I'm calling it, David. OT 21. Yes.

We did it. Wow. And what a term it has been. And hey, look, it's not over. I'm really looking forward to our conversation with Hiram Sasser later this week. That's going to be really good on the Coach Kennedy case. He was co-counsel for Coach Kennedy. So Hiram's a good dude.

And I think you'll really enjoy that conversation. And Sarah, you're ready for it, aren't you? I'm ready. And we've got next week, Cannon Shanmigan, who argued the Oklahoma, the McGirt Part 2 case. Basically, any time that we came out against our friends, we're going to have them on the podcast to defend themselves. Nice. I like it. I like it.

All right. Well, thank you guys for listening. This is coming out on July 5th, but I'm still going to say happy 4th and I hope you had a great July 4th holiday. And thank you, as always, for listening. Please rate us, please subscribe, and please check out thedispatch.com. That's the sound of fried chicken with a spicy history.

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