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Will Biden and Stacey Abrams Eat Their Words That Georgia’s 2021 Election Law Is Jim Crow 2.0? | National Review

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Brickbat: Surfing U.S.A.

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The Pinellas County, Florida, Sheriff’s Office has fired Deputy Joshua Sacino for violating his duties and responsibilities and committing acts unbecoming of members of the agency. An investigation found Sacino spent four hours one day parked in his patrol vehicle surfing the Internet. When asked to document his activities, Sacino told a supervisor he had stopped one car and given the driver a warning. He later drove to a Walmart, picked a car at random and wrote a report saying the vehicle’s driver was “involved in drug activity.” After reviewing his bodycam video, supervisors confronted Sacino, who confessed his lies. “It’s a serious matter,” said Pinellas County Sheriff Bob Gualtieri. “Deputy Sacino did this for self-serving reasons, to conceal his lack of activity and incompetence, with no regard of the consequences this report could have had for the citizen involved, or for any citizen operating that vehicle in the future.”

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The Precedential Value of Shadow Docket Cases

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Over the past year, the Supreme Court decided three important cases concerning the major questions doctrine. The third decision, West Virginia v. EPA, was decided on the regular docket. But the first two cases, like most COVID cases, were rendered on the shadow docket.

First, Alabama Association of Realtors v. HHS declared unlawful the eviction moratorium. Second, NFIB v. OSHA declared unlawful the vaccine/testing mandate. Both unsigned opinions relied on the major questions doctrine. At the time, I wrote that the Court has treated these shadow docket cases as precedential.

Now, we have West Virginia v. EPA. And the Court cites the Alabama case as part of the major questions canon. Here, the Court invokes Alabama and Brown & Williamson in the same breath:

Such cases have arisen from all corners of the administrative state. In Brown & Williamson, for instance, the Food and Drug Administration claimed that its authority over “drugs” and “devices” included the power to regulate, and even ban, tobacco products. Id., at 126–127. We rejected that “expansive construction of the statute,” concluding that “Congress could not have intended to delegate”such a sweeping and consequential authority “in so cryptic a fashion.” Id., at 160. In Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 3), we concluded that the Centers for Disease Control and Prevention could not, under its authority to adopt measures “necessary to prevent the . . . spread of ” disease, institute a nationwide eviction moratorium in response to the COVID–19 pandemic. We found the statute’s language a “wafer-thin reed” on which to rest such a measure, given “the sheer scope of the CDC’s claimed authority,” its “unprecedented” nature, and the fact that Congress had failed to extend the moratorium afterpreviously having done so. Id., at ___–___ (slip op., at 6–8).

And here, the Court lists Alabama in a string cite with Brown & Williamson and Gonzales v. Oregon:

And the Agency’s discovery allowed it to adopt a regulatory program that Congress had conspicuously and repeatedly declined to enact itself. Brown & Williamson, 529 U. S., at 159–160; Gonzales, 546 U. S., at 267–268; Alabama Assn., 594 U. S., at ___, ___ (slip op., at 2, 8). 

The Court also cites NFIB v. OSHA in the same passage as Gonzales v. Oregon:

Similar considerations informed our recent decision invalidating the Occupational Safety and Health Administration’s mandate that “84 million Americans . . . either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense.” National Federation of Independent Business v. Occupational Safety and Health Administration, 595 U. S. ___, ___ (2022) (per curiam) (slip op., at 5). We found it “telling that OSHA,in its half century of existence,” had never relied on its authority to regulate occupational hazards to impose such aremarkable measure. Id., at ___ (slip op., at 8). 

By contrast, Fulton, quite deliberately did not cite Tandom v. Newsom or Roman Catholic Diocese.

I think the Court is signaling that a published decision with some analysis should be treated as precedential, even if rendered in the absence of full briefing and oral argument. Relatedly, Judge Trevor McFadden and Vetan Kapoor wrote a helpful article summarizing whether an emergency stay order is precedential.

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The Legality of DACA After West Virginia v. EPA

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Last month, DACA turned ten years. Despite its vintage, the Supreme Court has never passed on the legality of the policy. Indeed, DHS v. Regents ducked the issue altogether, finding that the Trump Administration failed to justify the DACA rescission. (That precedent seemed to have expired with Biden v. Texas.) In Regents, I filed an amicus brief on behalf of the Cato Institute. We argued that DACA would trigger the major question doctrine.

As I read through West Virginia v. EPA, my mind kept wandering to DACA. Much of the Chief’s analysis concerning the Clean Air Act would apply to federal immigration law.

DACA involves what I called “presidential discovery” of a transformative power in general provisions of the INA–a transformation that Congress repeatedly declined to enact by statute. The Chief Justice laid out some guardrails in West Virginia:

Under our precedents, this is a major questions case. In arguing that Section 111(d) empowers it to substantially restructure the American energy market, EPA “claim[ed] to discover in a long-extant statute an unheralded power” representing a “transformative expansion in [its] regulatory authority.” Utility Air. It located that newfound power in the vague language of an “ancillary provision[]” of the Act, Whitman, one that was designed to function as a gap filler and had rarely been used in the preceding decades. And the Agency’s discovery allowed it to adopt a regulatory program that Congress had conspicuously and repeatedly declined to enact itself. Brown & Williamson; Gonzales; Alabama Assn. Given these circumstances, there is every reason to “hesitate before concluding that Congress” meant to confer on EPA the authority it claims under Section 111(d). Brown & Williamson.

Finally, we cannot ignore that the regulatory writ EPA newly uncovered conveniently enabled it to enact a program that, long after the dangers posed by greenhouse gas emissions “had become well known, Congress considered and rejected” multiple times. Brown & Williamson; see also Alabama Assn.; Bunte Brothers (lack of authority not previously exercised “reinforced by [agency’s] unsuccessful attempt … to secure from Congress an express grant of [the challenged] authority”). At bottom, the Clean Power Plan essentially adopted a cap-and-trade scheme, or set of state cap-and-trade schemes, for carbon. Congress, however, has consistently rejected proposals to amend the Clean Air Act to create such a program. It has also declined to enact similar measures, such as a carbon tax. “The importance of the issue,” along with the fact that the same basic scheme EPA adopted “has been the subject of an earnest and profound debate across the country, … makes the oblique form of the claimed delegation all the more suspect.” Gonzales.

Virtually every clause in these paragraphs can be applied to DACA.

Admittedly, the “expertise” point cuts differently. The Court found that the EPA lacks expertise to create the generating shifting approach. By contrast, DHS would have the expertise with regard to DACA. Still, the Court does not require a lack of relevant expertise to trigger the major questions doctrine. Justice Gorsuch recognized this point in his concurrence:

The dissent not only agrees that a mismatch between an agency’s expertise and its challenged action is relevant to the major questions doctrine analysis; the dissent suggests that such a mismatch is necessary to the doctrine’s application. But this Court has never taken that view. See, e.g., Brown & Williamson, (drug agency regulating tobacco); King v. Burwell (2015) (tax agency administering tax credits).

Eventually, the DACA litigation will hit the Fifth Circuit. West Virginia v. EPA will play an important role in that case.

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