Note

Waiving the Ministerial Exception

The ministerial exception provides that discrimination law does not apply to claims arising out of the employment relationship between religious institutions and their ministerial employees. While the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC suggested that this exception could be waived, others have argued otherwise. The pushback flows from a structural understanding of the Establishment Clause, which holds that the First Amendment creates a structural barrier between the separate sovereigns of church and state. On this understanding, the ministerial exception is simply a recognition of the fact that there are some areas in which the state has no power. But this is an incomplete analysis of waiver.

A complete analysis of waiver has both doctrinal and theoretical consequences. Doctrinally, a viable concept of waiver can change the litigation behavior of parties. Theoretically, waiver exposes a flaw in conceptions of church sovereignty. The commentary fails to fully define what it means to be a sovereign, ignoring the fact that some sovereigns, such as states, can waive their immunity.

This Note seeks to present a comprehensive theory for the waivability of the ministerial exception. This theory confronts the exception on all three of its theoretical footings: as part of the structural restraint imposed by the Establishment Clause, as part of the right to church autonomy extended by the Establishment Clause, and as part of a church’s right to shape its own faith protected by the Free Exercise Clause.

A Cost-Benefit Analysis–Based Interpretation of Reciprocity Under Clean Air Act Section 115(c)

Section 115 of the Clean Air Act provides for the regulation of international pollutants, and has been considered as a potential source of authority for regulating greenhouse gas emissions. In order to trigger the authority of the Environmental Protection Agency (“EPA”) to regulate under Section 115, EPA’s Administrator must determine that the relevant foreign countries have given the United States “essentially the same rights” as Section 115 gives those countries. This Note proposes a novel interpretation of this reciprocity requirement based on cost-benefit analysis (“CBA”). On this CBA-based interpretation, the reciprocity requirement is satisfied where the benefits that the United States receives from all countries’ emission reductions outweigh the costs of reducing its own emissions.

The CBA-based interpretation is consistent with trends in administrative law toward requiring agencies to consider the costs and benefits of regulation, and with a plausible reading of Section 115 as giving foreign countries the right to mutually beneficial emission reductions. The CBA-based interpretation also has legal and policy advantages: it may help avert challenges to regulation of greenhouse gas emissions under Section 115 based on the major questions doctrine, it may show that climate regulation is cost justified based on domestic climate benefits even if ancillary benefits and foreign benefits are not considered, and it may represent a rational strategy for approaching international environmental negotiations that could lead to an efficient outcome in the case of climate change if adopted by all parties.

This Note illustrates the CBA-based interpretation of reciprocity by applying it to the United States’ pledge under the Paris Climate Agreement.

Constitutional Avoidance: The Single Subject Rule as an Interpretive Principle

The single subject rule, which prohibits bills from containing more than one “subject,” is in place in forty-three state constitutions and has existed since the nineteenth century. It is frequently litigated and has led to many high-profile laws being invalidated or severed. Although the policy rationales behind the rule are well known and largely agreed upon, applying the rule has proven challenging. Courts have struggled to formulate coherent doctrine for what constitutes a distinct “subject,” as demonstrated by the myriad of vague, malleable tests developed by state courts. As a result, single subject rule jurisprudence suffers from fundamental flaws, including unpredictable, arbitrary decision making and high enforcement costs.

This Note posits that the single subject rule’s enforcement problems stem from courts’ perception of it exclusively as a substantive rule to prevent logrolling and to further other policy goals. This Note proposes an alternative conception of the single subject rule: as an interpretive principle based on the canon of avoidance of constitutional doubt. Approaching single subject rule adjudication in this way would allow courts to enforce the principles of the single subject rule without having to precisely define the contours of a statute’s “subjects,” thus averting many of the difficulties in applying the rule. Employing the rule as an interpretive tool would also allow courts to uphold a law while still enforcing the single subject rule by narrowly construing the law’s various ambiguous provisions. In this way, it would help courts skirt the negative consequences that may result from severing or invalidating popularly enacted statutes and initiatives.

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