//  6/21/19  //  Uncategorized

“On Thursday, the conservative wing of the Supreme Court called into question the whole project of modern American governance.” So opens an op-ed of mine at the New York Times.

Because Justice Kavanaugh was recused from the case, the conservative wing was deprived of a potential fifth vote. But that vote may come: Judging from his record, Justice Kavanaugh is also no friend of agency power.

So the writing may be on the wall for the hands-off doctrine that has enabled the federal government to be a functional government. If that fifth vote comes, the court would generate enormous uncertainty about every aspect of government action. Lawsuits against federal agencies would proliferate, and their targets would include entities that we’ve come to rely on for cleaner air, effective drugs, safer roads and much else.

Nothing in the Constitution requires that result. The Constitution broadly empowers Congress “to make all Laws which shall be necessary and proper for carrying into Execution” its authorities. Congress does not surrender its legislative power by delegating. It exercises that power.

That argument, however, may not carry the day. And make no mistake: If the law in Gundy is unconstitutional, then as Justice Kagan wrote, “most of government is unconstitutional.” Alarmingly, a majority of justices on the Supreme Court may not have a problem with that.

I’m worried about Gundy. One word more about why. Adrian Vermeule argued yesterday “that as the stakes increase in future cases, as the consequences of casting the fifth vote to destabilize the administrative state focus the judicial mind (especially the mind of the Chief Justice), the likelihood of invalidation will fall correspondingly. Or so the safe bet seems to me.”

Vermeule might be right about that.  But I see two concerns he may be scanting. First, there’s a tail risk that the Supreme Court does something quite dramatic. Given how destabilizing that would be, the tail risk alone is a serious concern. Second, the nondelegation doctrine need not be fully reinvigorated (reincarnated?) to have pernicious consequences. The lower courts in particular will be tempted to construe statutes to avoid newly perceived constitutional difficulties, and the narrowing itself would be harmful. Think the Benzene case, but on steroids.

@nicholas_bagley


Versus Trump: States vs. Conscience Rule

11/14/19  //  Uncategorized

On this week’s Versus Trump, Jason, Charlie, and Easha discuss a court's opinion vacating the Trump Administration's so-called "conscience rule." This rule would have broadly permitted many employees in the healthcare sector from in any way participating in procedures with which they have religious or moral disagreements—even in emergencies. Listen now!

Charlie Gerstein

Civil Rights Corps

Easha Anand

San Francisco

Versus Trump: Sanctions Versus DeVos!

11/8/19  //  Uncategorized

On this week’s special edition of Uncle Charlie's Sanctions Corner–wait, we mean Versus Trump—Jason, Charlie, and Easha bring on Eileen Connor of the Project on Predatory Student to discuss a major opinion issuing sanctions against the Department of Education. Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Civil Rights Corps

The DACA Trap

11/6/19  //  Commentary

The Supreme Court will hear arguments next week in a case about whether the Trump Administration can revoke DACA. But progressives ought to be wary of the long-term effects of prevailing. A win here could very well make it very hard to undo the lax enforcement policies of the current Administration.

Zachary Price

U.C. Hastings College of the Law