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Monday, July 01, 2024

Thoughts on NetChoice

I decided to begin the day with NetChoice, the case about which I would have something to write. Then I can read about how the framers, 11 years removed from a revolution against a king, created a monarch (more powerful than the one it replaced) who is selected and serves for a few years at a time but otherwise can do no wrong.

Anyway, NetChoice. The argument somewhat previewed the result, but the internal dynamics may have been messy.

• The Court is unanimous on the disposition of this appeals--vacate both lower courts and tell them to do the analysis over, because this is a facial challenge. Justice Kagan writes for six (the Chief, Sotomayor, Kavanaugh, Barrett, Jackson) to explain a proper approach to facial challenges and to trace the Court's editorial-judgment jurisprudence (Tornillo, PG&E, Turner, Hurley, Pruneyard, and FAIR). She writes for five (loses Jackson) to explain how that jurisprudence applies to render the core provisions of the laws constitutionally invalid and to highlight how badly the Fifth Circuit messed up. Justice Barrett concurs to complain about the complexities of facial challenges and to suggest plaintiffs would have an easier time with a narrower as-applied challenge. Justice Jackson does not join the parts of Kagan's opinon (III-B and C) that explain how that jurisprudence ought to apply to these laws, deeming it premature. Justice Thomas concurs in the judgment to explain why facial challenges should not be allowed. Justice Alito concurs in the judgment for three (Thomas and Gorsuch) to explain why the Court should not have opined on the First Amendment questions and then to offer a contrary First Amendment analysis.

• This will be lost in the procedural mud and the news of the day, but: Five-and-a-half Justices offered a strong vision of First Amendment protection for curators of all kinds and of the limits of government trying to balance the market in ways it deems proper or in ways that will help the speakers and speech it likes.

• Justice Jackson's choice is odd. She joins Kagan's summary of the jurisprudence (III-A) but not its application (III-B and C). But Kagan completes that summary with three general points--1) the First Amendment protects curation of third-party speech; 2) that does not change when the compiler allows most speech or only excludes a small amount of speech; and 3) the government does not have an interest in balancing the expressive marketplace. Those three principles imply the resolution as to the core provisions--the sites have a First Amendment right to do this and Florida and Texas cannot rely on the only interest either has offered for these provisions. So if Jackson believes the statement of legal principles (with their obvious implications) is proper, I am not sure why she departed from the actual application.

• Justice Thomas explains everything that is wrong with facial challenges, including that they enable universal injunctions. But this is wrong, as Dick Fallon has argued. A declaration of facial invalidity is a statement about the law that has preclusive effect on the parties and precedential effect on future parties. It does not disappear the law, it does not adjudicate the rights of non-parties, and it does not stop future enforcement against non-parties. Although facial resolution from SCOTUS dictates the outcome of that future enforcement as a matter of precedent, that is how precedent is supposed to work. Perhaps apprehensiveness about facial challenges is of a piece with the idea (observed more in the breach) that the Court should decide no more than necessary to decide the case. But that is a prudential rule, not grounded in Article III or separation of powers. Of course, the Court could get to the same place if it did not insist on judicial supremacy, on it having the final word on the constitutional question that binds all other actors.

• The Court limits (majority view) or rejects (Thomas view) facial challenges as a way to keep the Court from wielding too much power at the expense of the other branches, where those branches would be stymied by the Court's pronouncements on the Constitution to make or enforce the laws against non-parties in the future. But the Court would not need that limit if it did not assume that a declaration of facial validity binds the executive in the future.

Murthy v. Missouri held that states and users lack standing to challenge the Biden Administration's jawboning of social-media sites, reflecting the Court's distaste for "massive kitchen-sink, lots-of-plaintiffs/lots-of-defendants/lots-of-bad-conduct constitutional claims." Something similar might be at work here. These laws have core provisions raising constitutional problems (limits on curation and notice requirements) for specific actors (Facebook and YouTube) for specific conduct (their home pages or news feeds). Litigation by a trade association challenging all provisions of the law goes too far. Again, that limit might have cross-ideological effects.

• It will be interesting to see what happens going forward. Might it be worth it for NetChoice (or just Facebook and YouTube) to rework this as an as-applied challenge to the moderation and notice provisions (which a majority of the Court said violate the First Amendment) and leave the rest for another day? There is an argument (Ilya makes it) that the invalidity of these core provisions is sufficient to create the necessary overbreadth compared with any legitimate sweep of the law (such as Gmail or Uber reviews).

• Florida AG Ashley Moody took to Twitter to announce that the Court unanimously sided with it--"We are pleased that SCOTUS agreed with Florida and rejected the lower court’s flawed reasoning—invalidating our social media law. While there are aspects of the decision we disagree with, we look forward to continuing to defend state law." This is impressive in its understatedness and in its cynicism that my fellow Floridians will not read the opinion or get their news from an accurate source. "Aspects of the decision we disagree with"--the Court rejected the entire First Amendment edifice on which Florida relied. Kagan's opinion sees "the First Amendment issues much as" the Eleventh Circuit did in Judge Newsom's excellent opinion. Moreover, in emphasizing the Fifth Circuit's wrongness, the Court impliedly announced the Eleventh Circuit's correctness as to the constitutional invalidity of the core provisions.

Posted by Howard Wasserman on July 1, 2024 at 02:46 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

The EPA and the Terrible, Horrible, No Good, Very Bad Day(s)

Before we SCOTUSe wreaks new havoc at 10 a.m., we can review last week's old havoc. This post is by my FIU colleague Alex Erwin, who teaches and writes in environmental law.

Thursday was a terrible day for EPA (and frankly any American that had the misfortune of watching the presidential debate or the US v. Panama game at Copa America …).  To start things off, using its shadow docket magic, the Supreme Court stayed EPA’s Good Neighbor Rule in Ohio v. EPA.  Mr. Rogers would not be pleased.

Under the Clean Air Act, Congress tasked EPA with setting standards for common air pollutants.  Once a standard has been set, the states are charged with implementing those standards by developing a State Implementation Plan (SIP).  While the states have great latitude in how they meet the federal standard, the CAA requires states to be good neighbors.  Air pollution obviously travels, and this provision prevents states from developing a SIP that would dump air pollution onto its downwind neighbors in order to meet the standard in-state.  If EPA, however, believes a SIP is insufficient, it can promulgate its own plan, known as a Federal Implementation Plan (FIP).  In this case, Ohio and at least 18 other states messed around and got FIPped.  EPA proposed a single FIP that would cover 23 states.  The rule had already been temporarily stayed in over half of these states by the district courts, and Justice Gorsuch (joined by the other men on the Court) obliged Ohio granting emergency relief.

It’s been a long time since EPA won a case in front of the Supreme Court – the current conservative majority has routinely found that EPA has overstepped its authority.  This time around there is no need for the “major questions doctrine” of West Virginia or the “clear statement rule” of Sackett – instead, it is just a particularly nitpicky application of arbitrariness review.  What Ohio does have in common with those previous cases is, in my view at least, an over emphasis on the role of states in environmental protection.  The majority opinion is happy to harp on the fact that SIPs are the “primary responsibility” of the states, while significantly downplaying EPA’s mandatory role in ensuring compliance with air quality standards.

The majority holds EPA to task for failing to adequately explain its final rule, especially in response to submitted comments.  It is all a bit technical, but basically Ohio argued that the models the rule is based upon relied on the rule applying to all 23 states and, thus, if that base assumption is incorrect, then the estimates generated could be wrong when applied only to states that remain covered under the rule.  Gorsuch says the rule was “not reasonably explained” because it did not address this issue directly.  I agree with what Dan Deacon wrote on the Yale JREG Notice and Comment blog – the majority basically buys everything Ohio was selling hook, line, and sinker, while holding the agency to a much higher standard.  As Justice Barrett discusses in her dissent, EPA claims that it did address this issue (when it included a severability clause in the rule), that the issue was never directly raised during notice and comment, and that the models are not dependent on the number of states included.  The majority is happy to give the states leniency here, but not EPA.  Ohio’s arguments were good if they were close enough, but EPA’s needed to be perfect.  I don’t know how precedential this case will be, but it certainly seems wrong to me. 

Not done with ruining Administrator Regan’s day, the Court also handed down SEC v. Jarkesy.  Here Chief Justice Roberts, joined by the other 5 conservatives, stripped the SEC of its ability to seek civil penalties in an administrative proceeding, holding that the 7th Amendment entitles the defendant to a jury trial.  While EPA was not directly involved, Jarkesy could cause EPA serious problems.  Right now, the agency hands out hundreds of civil penalties a year via in-house administrative proceedings.  As currently structured, DOJ ENRD handles enforcement cases in federal court.  If Jarksey is applied to block EPA from seeking civil penalties in-house, the increased caseload will certainly stretch DOJ’s capacity to the brink.  This all just means fewer polluters pay.

And Friday was even worse!  The Supreme Court killed Chevron once and for all in Loper Bright Enterprises v. Raimondo.  As far as I can tell, it replaced it with even more judicial aggrandizement!  Looking narrowly at the two cases themselves, it seems fitting to me that the decision in Loper Bright directly benefits an extractive industry just like the original decision in Chevron did.  Business interests once again trump the environment at the Supreme Court.  While the case was ostensibly about who has to pay for monitors on fishing vessels, Loper Bright ended up just a vessel for the court to do away with Chevron deference.

Hot takes are raining in on all sides as to whether the death of Chevron is the most consequential thing to happen or if it will be a big nothingburger.  They didn’t offer divination where I went to law school, so I will refrain from much prognostication.  All I’ll say is that I was struck (maybe bludgeoned is a better word …) by the idea that there is one singular “best” meaning of a statute, and that meaning can only be divined by reviewing courts.  What inevitably happens when lower court judges, unmoored by Chevron, come to different conclusions about what is best?  The Supreme Court takes so few cases a year, it will never be able to clear up every circuit split that inevitably pops up because the 5th Circuit and 9th Circuit are living in two separate realities.  In that case, which is “best”?

While I can buy that the judiciary is the better body to do purely legal statutory interpretation work, so much of what Chevron dealt with were questions where facts and specialized expertise do in fact matter.  Justice Kagan gives us a laundry list of these kinds of cases in her excellent dissent.  EPA and the other environmental agencies constantly deal with these kinds of interpretations and will be the agencies that suffer the most at the hands of activist judges without Chevron deference. 

To bring it back to Ohio, Justice Gorsuch gives us a great reason to doubt that judges always know best when it comes to science.  Despite explicitly reminding the reader that the court “reviewed over 400 pages of briefing and a voluminous record, held over an hour of oral argument on the applications, and engaged in months of postargument deliberations”, Justice Gorsuch repeatedly mixes up laughing gas (nitrous oxide or N2O) with nitrogen oxides (such as NO or NO2).  The opinion had to be corrected after the press caught wind of it!

As a final note – shout to Justice Kagan for adding more relevancy to my current research project!  She uses Fish and Wildlife Service’s interpretation of “distinct population segment” as it relates to populations of western gray squirrels as her lead example for the problems created by overruling Chevron.  I'm currently working on an article about intraspecific genetic variation and the Endangered Species Act – contrasting the Service’s decision to define the term “distinct population segment” via regulation with its decision to leave the also unclear “subspecies” undefined and thus determined on a case-by-case basis.  Stay tuned!

Posted by Howard Wasserman on July 1, 2024 at 09:01 AM in Judicial Process, Law and Politics | Permalink | Comments (0)

Happy Canada Day

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Posted by Steve Lubet on July 1, 2024 at 04:48 AM | Permalink | Comments (0)