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The New Major Questions Doctrine

This Article critically analyzes significant recent developments in the major questions doctrine. It highlights important shifts in what role the “majorness” of an agency policy plays in statutory interpretation, as well as changes in how the Court determines whether an agency policy is major. After the Supreme Court’s October term 2021, the “new” major questions doctrine operates as a clear statement rule that directs courts not to discern the plain meaning of a statute using the normal tools of statutory interpretation, but to require explicit and specific congressional authorization for certain agency policies. Even broadly worded, otherwise unambiguous statutes may not be good enough when it comes to policies the Court deems “major.”

At the same time, the Court has increasingly relied on three new indicia of majorness to determine whether an agency policy is major: the political significance of or political controversy surrounding the policy; the novelty of the policy; and the possibility that other, supposedly even more controversial agency policies might be supported by the agency’s broader statutory rationale.

Understanding how the major questions doctrine operates today is important not only to bring a modicum of clarity to a doctrine often described as radically indeterminate. Unpacking the new major questions doctrine also provides a way to interrogate and evaluate the doctrine and to assess how it relates to, and enforces, previously understood institutional and political pathologies. In particular, this Article argues that the new major questions doctrine allows the presence of present-day political controversy surrounding a policy to alter otherwise broad regulatory statutes outside of the formal legislative process. It supplies an additional means for minority rule in a constitutional system that already skews toward minority rule. What’s more, it invites politically infused judgments by the federal courts, further eroding democratic control of policy. And it operates as a powerful de-regulatory tool that limits or substantially nullifies congressional delegations to agencies in the circumstances where delegations are more likely to be used—and more likely to be effective—even as the Court claims it is simply doing statutory interpretation.

Introduction

Stymieing agency efforts to address issues from climate change to the COVID-19 pandemic,1 1.See West Virginia v. EPA, 142 S. Ct. 2587 (2022) (invoking major questions doctrine to invalidate EPA regulation designed to curb emissions from greenhouse gasses); Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor, Occupational Safety & Health Admin., 142 S. Ct. 661 (2022) [hereinafter NFIB v. OSHA] (invoking major questions doctrine to invalidate Occupational Safety and Health Administration (“OSHA”) regulation designed to address COVID-19).Show More the major questions doctrine has emerged as a powerful weapon wielded against the administrative state.2 2.See, e.g., Alison Gocke, Chevron’s Next Chapter: A Fig Leaf for the Nondelegation Doctrine, 55 U.C. Davis L. Rev. 955, 994 (2022) (“The legal fictions underlying the major questions doctrine (specifically, the ‘major questions doctrine as Chevron step zero test’) and Chief Justice Roberts’ jurisdictional exception are poised to become the Court’s new nondelegation tests.”); Lisa Heinzerling, The Power Canons, 58 Wm. & Mary L. Rev. 1933, 1937–38 (2017) (arguing that the Court’s earlier major questions cases diverted power to courts and away from administrative agencies).Show More The doctrine’s roots extend as far back as 2000 and arguably before.3 3.See Michael Coenen & Seth Davis, Minor Courts, Major Questions, 70 Vand. L. Rev. 777, 787 (2017) (“Though it had precursors, the majorness inquiry first crystallized in FDA v. Brown & Williamson Tobacco Corp.”).Show More But its shape has morphed significantly over time.4 4.See Cass R. Sunstein, There Are Two “Major Questions” Doctrines, 73 Admin. L. Rev. 475, 481–83 (2021) [hereinafter Sunstein, Two “Major Questions” Doctrines] (arguing that the Court has deployed two different formulations of the doctrine).Show More Most recently, the Supreme Court’s October term 2021 saw the doctrine become stronger, more powerful. At the same time, the Court more fully articulated its vision of when the doctrine applies. And at least one thing has become crystal clear: the major questions doctrine has become an important—perhaps the most important—constraint on agency power, particularly when it comes to some of the most pressing problems of our time.

This Article critically analyzes significant recent developments in the major questions doctrine. It highlights important shifts in what role the “majorness” of an agency policy plays in statutory interpretation, as well as changes in how the Court determines whether an agency policy is major. The major questions doctrine originally operated within the familiar Chevron framework.5 5.See Coenen & Davis, supra note 3, at 788–91 (describing doctrinal origins and operation). On Chevron, see infra notes 45–67 and accompanying text.Show More When an agency promulgated a policy that was dramatic or unexpected, the broader context of the statute, consulted in conjunction with common sense, might indicate that the statute unambiguously foreclosed that policy.6 6.See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 137, 160 (2000) (rejecting the FDA’s attempt to regulate cigarettes in part because of the vast economic impacts of the tobacco industry and the “cryptic” statutory provision at issue). In a slightly different form, the doctrine operated to inform the courts’ analysis of whether the agency’s interpretation was a reasonable one. See Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 321 (2014).Show More In such form, the major questions doctrine (a phrase the Court did not use until last term) was simply one tool of statutory interpretation, sitting alongside others in the tool kit such as ordinary meaning and the semantic canons.

But it has become something quite different. First, in King v. Burwell, the Court used the doctrine as a reason why courts should determine the meaning of statutory language without any deference to the agency’s views.7 7.576 U.S. 473, 485–86 (2015).Show More And now, after the October term 2021, the “new” major questions doctrine operates as a clear statement rule.8 8.See West Virginia v. EPA, 142 S. Ct. 2587, 2616 (2022) (Gorsuch, J., concurring) (describing the Court’s articulation of the major questions doctrine as a clear statement rule); id. at 2641 (Kagan, J., dissenting) (describing the major questions doctrine as a “get-out-of-text-free card[]”).Show More It directs courts not to discern the plain meaning of a statute using the normal tools of statutory interpretation, but instead to require explicit and specific congressional authorization for certain agency policies.9 9.See id. at 2633–34, 2641 (Kagan, J., dissenting).Show More Even broadly worded, otherwise unambiguous statutes may not be good enough when it comes to policies the Court deems “major.”

At the same time, the Court has increasingly relied on three indicia of majorness, in addition to the costs imposed by the agency policy, to determine whether an agency rule is major. First, the Court has indicated that politically significant or controversial policies are more likely to be major and thus require clear authorization.10 10.See NFIB v. OSHA, 142 S. Ct. 661, 665 (2022) (quoting Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2489 (2021)); West Virginia v. EPA, 142 S. Ct. at 2620 (Gorsuch, J., concurring) (explaining that an issue may be major where “certain States were considering” the issue or “when Congress and state legislatures were engaged in robust debates”); id. at 2614 (majority opinion).Show More Second, the Court has signaled that the novelty of a policy—i.e., the fact that the agency had never promulgated a similar policy before—is a reason to think that the policy is a major one.11 11.See West Virginia v. EPA, 142 S. Ct. at 2595–96 (invoking novelty of the regulation as an indicium of majorness); NFIB v. OSHA, 142 S. Ct. at 666 (“This ‘lack of historical precedent,’ coupled with the breadth of authority that the Secretary now claims, is a ‘telling indication’ that the mandate extends beyond the agency’s legitimate reach.” (internal quotation marks omitted) (quoting Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 505 (2010))).Show More Finally, the Court has considered the majorness of other, theoretically possible agency policies not actually before the Court but that might be supported by the agency’s broader rationale in determining whether the agency’s current claim of interpretive authority is major.12 12.See Ala. Ass’n of Realtors, 141 S. Ct. at 2489 (using implications of agency’s theory of authority as indicia of majorness).Show More (Although we describe these developments in the doctrine at the Court, it is the Republican appointees on the Court who are in the majority in the relevant cases.)

This new major questions doctrine was most clearly on display in the Supreme Court’s end-of-term blockbuster decision in West Virginia v. EPA.13 13.142 S. Ct. at 2595.Show More There, the Court invoked the major questions doctrine to invalidate an EPA regulation requiring coal-fired power plants to adopt so-called “generation shifting” methods in order to shift production to cleaner sources of electricity.14 14.See id.; see also Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64662, 64728 (Oct. 23, 2015).Show More The case was the first time the Court actually used the phrase “major questions doctrine,” and it represents the full emergence of the doctrine as a clear-statement rule.15 15.West Virginia v. EPA, 142 S. Ct. at 2634 (Kagan, J., dissenting). Justice Gorsuch labeled the doctrine as a clear statement rule in his concurrence. See id. at 2622 (Gorsuch, J., concurring).Show More The consequence is that “major” agency policies now require “clear congressional authorization”—even broadly worded, otherwise unambiguous statutes may not do.16 16.See id. at 2609 (majority opinion) (quoting Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)).Show More

West Virginia v. EPA also displayed the Court’s new indicia of majorness—the criteria used to assess whether the doctrine applies. The Court made clear that the “political significance” of a rule is evidence of majorness,17 17.Id. at 2595 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159–60 (2000)).Show More pointing to political disagreement over whether to adopt generation shifting programs.18 18.Id. at 2614 (“‘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.’” (quoting Gonzales v. Oregon, 546 U.S. 243, 267–68 (2006))).Show More The concurrence, which agreed with the Court’s application of the major questions doctrine, underscored that the agency’s rule was major because “certain States were considering” the issue and “Congress and state legislatures were engaged in robust debates.”19 19.Id. at 2620 (Gorsuch, J., concurring).Show More The Court also invoked the novelty of the agency’s regulatory approach in finding it to be a major one,20 20.See id. at 2596 (majority opinion).Show More and it considered the possible future implications of the agency’s theory of its statutory authority.21 21.See id. at 2612 (“[T]his argument does not so much limit the breadth of the Government’s claimed authority as reveal it.” (emphasis omitted)).Show More These trends continued in the October term 2022.22 22.See Biden v. Nebraska, 143 S. Ct. 2355 (2023).Show More

Understanding how the major questions doctrine operates today is important not only to bring a modicum of clarity to a doctrine often described as radically indeterminate.23 23.See, e.g., Heinzerling, supra note 2, at 1938–90 (describing uncertainty in the major questions doctrine); Gocke, supra note 2, at 1002 (describing the major questions doctrine as “illusory”); Coenen & Davis, supra note 3, at 809–10 (describing lack of clarity in the major questions doctrine); Jonas J. Monast, Major Questions About the Major Questions Doctrine, 68 Admin. L. Rev. 445, 448 (2016) (“More is unclear than clear about the bounds of the major questions doctrine at this stage.”); Jacob Loshin & Aaron Nielson, Hiding Nondelegation in Mouseholes, 62 Admin. L. Rev. 19, 45 (2010) (describing a related interpretive principle as applied “haphazardly”); Natasha Brunstein & Richard L. Revesz, Mangling the Major Questions Doctrine, 74 Admin. L. Rev. 217, 218 (2022) (“What constitutes a major question is as unclear today as it was when Justice Breyer wrote those words in 1986.”); Nathan Richardson, Antideference: COVID, Climate, and the Rise of the Major Questions Canon, 108 Va. L. Rev. Online 174, 195 (2022) (“The most prominent critique of the major questions doctrine has been that its boundaries are unclear, unpredictable, and arbitrary.”).Show More Unpacking the new major questions doctrine also allows us to normatively evaluate the doctrine on its own terms and to assess how it relates to, and enforces, previously understood institutional and political pathologies. And we will suggest that, judged in this manner, the doctrine does quite poorly.

This Article makes three principal contributions. The first is descriptive and synthetic: the Article offers the first account of how the new major questions doctrine operates in light of the Supreme Court’s decisions from October term 2021, showing how it has emerged as a clear-statement rule and cataloguing the new indicia of majorness.

The Article’s second contribution is analytic: identifying how the Court assesses majorness makes it easier to evaluate the new major questions doctrine and to critically assess its potential consequences. Specifically, we suggest that the Court’s new approach may allow present-day political controversy surrounding a policy to restrict authority that agencies would otherwise have under broadly worded statutes. This permits political parties and political movements more broadly—and whether as part of a conscious strategy or not—to effectively amend otherwise broad regulatory statutes by generating controversy surrounding an agency policy. This dynamic undermines the purported purpose of the doctrine, which is to channel policy disputes into legislatures.

The third contribution is more straightforwardly normative: unpacking the new major questions doctrine identifies how the doctrine reinforces previously identified pathologies of the American constitutional system and undermines public policy by hobbling delegations when they are most likely to be effective. We argue that the doctrine supplies an additional means for minority rule in a constitutional system that already skews toward minority rule. It provides an additional mechanism for courts to exercise what is essentially political oversight of statutes—inviting judges to opine on what policies are sufficiently controversial and thus require special authorization, an inquiry that may often depend on the judges’ own deeply held politics.24 24.Cf. Coenen & Davis, supra note 3, at 831 (arguing that lower courts’ application of the version of the major questions doctrine articulated in King v. Burwell raised “concerns about major political dysfunction and institutional breakdowns”).Show More And it operates to kneecap delegations to agencies in precisely the circumstances in which Congress may have had particular reason to delegate broad authority to agencies, all while supposedly simply doing statutory interpretation.

Now is an especially important time to unpack and assess the major questions doctrine. In the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overruling Roe v. Wade,25 25.Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022) (overruling Roe v. Wade, 410 U.S. 113 (1973)).Show More the federal government is reportedly considering and undertaking some administrative responses to secure access to abortion, particularly medication abortion.26 26.See Shira Stein, Fiona Rutherford & Celine Castronuovo, White House Touts Abortion Pill as Answer to Roe Reversal but FDA Rules Limit Use, Bloomberg (June 30, 2022, 11:57 AM), https://www.bloomberg.com/news/articles/2022-06-30/white-house-touts-abortion-pill‌-as-answer-to-roe-reversal-but-fda-rules-limit-use [https://perma.cc/DWZ3-K25Z]; Dan Diamond & Rachel Roubein, Biden Official Vows Action on Abortion Following ‘Despicable’ Ruling, Wash. Post (June 28, 2022, 1:28 PM), https://www.washingtonpost.com/‌health/2022/06/28/abortion-access-becerra/ [https://perma.cc/4UKJ-GXJ9].Show More Possible responses include regulatory action by the FDA27 27.See U.S. Food & Drug Admin., Information About Mifepristone for Medical Termination of Pregnancy Through Ten Weeks Gestation, https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/mifeprex-mifepristone-information [https://perma.‌cc/G7Q4-VNU7] (last visited Jan. 24, 2023); U.S. Food & Drug Admin., Risk Evaluation and Mitigation Strategy (REMS) Single Shared System for Mifepristone 200MG (2019), https://www.accessdata.fda.gov/drugsatfda_docs/rems/Mifepristone_2021_05_14_REMS_Full.pdf [https://perma.cc/ULJ3-ZUET].Show More and declarations of public health emergencies under the Public Readiness and Emergency Preparedness Act.28 28.42 U.S.C. §§ 247d, 247d-6d(b)(1).Show More Both responses rely on statutory delegations to agencies.29 29.U.S. Gov’t Accountability Off., GAO-08-751, Approval and Oversight of the Drug Mifeprex 2 (2008), https://www.gao.gov/assets/ 280/279424.pdf [https://perma.cc/J63V-C6CY]; Memorandum from Ctr. for Drug Evaluation & Rsch. to Sandra P. Arnold, Vice President, Corp. Affs., Population Council, 1 (Sept. 28, 2000), https://www.accessdata.‌fda.gov/drugsatfda_docs/appletter/2000/20687appltr.pdf [https://perma.cc/36XJ-FFZA]; 21 U.S.C. § 355-1(a)(1), (f)(2); id. § 355(b)(1), (d); 42 U.S.C. § 247d-6d(b).Show More These agency responses may be evaluated under the major questions doctrine, making it important to understand what the doctrine is and how it might be applied.30 30.Original Complaint at 12, Texas v. Becerra, No. 22-cv-00185, 2022 WL 18034483 (N.D. Tex. Nov. 15, 2022), ECF No. 1 (challenging Department of Health and Human Services Secretary Becerra’s post-Dobbs guidance on major questions grounds).Show More

The Article proceeds in four Parts. Part I provides a brief overview of different judicial constraints on administrative agencies’ authority to interpret and implement federal statutes. Part II provides a synthesis of the new major questions doctrine, focusing on three recent cases, two from the Supreme Court’s most recent term and the third from August 2021. Part III then critically evaluates the new major questions doctrine. We conclude by arguing the new major questions doctrine erodes the bases for several recently offered justifications for the exercise of agency power—and, perhaps from the standpoint of the doctrine’s defenders, maybe that’s the whole point.

  1.  See West Virginia v. EPA, 142 S. Ct. 2587 (2022) (invoking major questions doctrine to invalidate EPA regulation designed to curb emissions from greenhouse gasses); Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor, Occupational Safety & Health Admin., 142 S. Ct. 661 (2022) [hereinafter NFIB v. OSHA] (invoking major questions doctrine to invalidate Occupational Safety and Health Administration (“OSHA”) regulation designed to address COVID-19). ↑
  2.  See, e.g., Alison Gocke, Chevron’s Next Chapter: A Fig Leaf for the Nondelegation Doctrine, 55 U.C. Davis L. Rev. 955, 994 (2022) (“The legal fictions underlying the major questions doctrine (specifically, the ‘major questions doctrine as Chevron step zero test’) and Chief Justice Roberts’ jurisdictional exception are poised to become the Court’s new nondelegation tests.”); Lisa Heinzerling, The Power Canons, 58 Wm. & Mary L. Rev. 1933, 1937–38 (2017) (arguing that the Court’s earlier major questions cases diverted power to courts and away from administrative agencies). ↑
  3.  See Michael Coenen & Seth Davis, Minor Courts, Major Questions, 70 Vand. L. Rev. 777, 787 (2017) (“Though it had precursors, the majorness inquiry first crystallized in FDA v. Brown & Williamson Tobacco Corp.”). ↑
  4.  See Cass R. Sunstein, There Are Two “Major Questions” Doctrines, 73 Admin. L. Rev. 475, 481–83 (2021) [hereinafter Sunstein, Two “Major Questions” Doctrines] (arguing that the Court has deployed two different formulations of the doctrine). ↑
  5.  See Coenen & Davis, supra note 3, at 788–91 (describing doctrinal origins and operation). On Chevron, see infra notes 45–67 and accompanying text. ↑
  6.  See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 137, 160 (2000) (rejecting the FDA’s attempt to regulate cigarettes in part because of the vast economic impacts of the tobacco industry and the “cryptic” statutory provision at issue). In a slightly different form, the doctrine operated to inform the courts’ analysis of whether the agency’s interpretation was a reasonable one. See Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 321 (2014). ↑
  7.  576 U.S. 473, 485–86 (2015). ↑
  8.  See West Virginia v. EPA, 142 S. Ct. 2587, 2616 (2022) (Gorsuch, J., concurring) (describing the Court’s articulation of the major questions doctrine as a clear statement rule); id. at 2641 (Kagan, J., dissenting) (describing the major questions doctrine as a “get-out-of-text-free card[]”). ↑
  9.  See id. at 2633–34, 2641 (Kagan, J., dissenting). ↑
  10.  See NFIB v. OSHA, 142 S. Ct. 661, 665 (2022) (quoting Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2489 (2021)); West Virginia v. EPA, 142 S. Ct. at 2620 (Gorsuch, J., concurring) (explaining that an issue may be major where “certain States were considering” the issue or “when Congress and state legislatures were engaged in robust debates”); id. at 2614 (majority opinion). ↑
  11.  See West Virginia v. EPA, 142 S. Ct. at 2595–96 (invoking novelty of the regulation as an indicium of majorness); NFIB v. OSHA, 142 S. Ct. at 666 (“This ‘lack of historical precedent,’ coupled with the breadth of authority that the Secretary now claims, is a ‘telling indication’ that the mandate extends beyond the agency’s legitimate reach.” (internal quotation marks omitted) (quoting Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 505 (2010))). ↑
  12.  See Ala. Ass’n of Realtors, 141 S. Ct. at 2489 (using implications of agency’s theory of authority as indicia of majorness). ↑
  13.  142 S. Ct. at 2595. ↑
  14.  See id.; see also Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64662, 64728 (Oct. 23, 2015). ↑
  15.  West Virginia v. EPA, 142 S. Ct. at 2634 (Kagan, J., dissenting). Justice Gorsuch labeled the doctrine as a clear statement rule in his concurrence. See id. at 2622 (Gorsuch, J., concurring). ↑
  16.  See id. at 2609 (majority opinion) (quoting Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)). ↑
  17.  Id. at 2595 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159–60 (2000)). ↑
  18.  Id. at 2614 (“‘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.’” (quoting Gonzales v. Oregon, 546 U.S. 243, 267–68 (2006))). ↑
  19.  Id. at 2620 (Gorsuch, J., concurring). ↑
  20.  See id. at 2596 (majority opinion). ↑
  21.  See id. at 2612 (“[T]his argument does not so much limit the breadth of the Government’s claimed authority as reveal it.” (emphasis omitted)). ↑
  22.  See Biden v. Nebraska, 143 S. Ct. 2355 (2023). ↑
  23.  See, e.g., Heinzerling, supra note 2, at 1938–90 (describing uncertainty in the major questions doctrine); Gocke, supra note 2, at 1002 (describing the major questions doctrine as “illusory”); Coenen & Davis, supra note 3, at 809–10 (describing lack of clarity in the major questions doctrine); Jonas J. Monast, Major Questions About the Major Questions Doctrine, 68 Admin. L. Rev. 445, 448 (2016) (“More is unclear than clear about the bounds of the major questions doctrine at this stage.”); Jacob Loshin & Aaron Nielson, Hiding Nondelegation in Mouseholes, 62 Admin. L. Rev. 19, 45 (2010) (describing a related interpretive principle as applied “haphazardly”); Natasha Brunstein & Richard L. Revesz, Mangling the Major Questions Doctrine, 74 Admin. L. Rev. 217, 218 (2022) (“What constitutes a major question is as unclear today as it was when Justice Breyer wrote those words in 1986.”); Nathan Richardson, Antideference: COVID, Climate, and the Rise of the Major Questions Canon, 108 Va. L. Rev. Online 174, 195 (2022) (“The most prominent critique of the major questions doctrine has been that its boundaries are unclear, unpredictable, and arbitrary.”). ↑
  24.  Cf. Coenen & Davis, supra note 3, at 831 (arguing that lower courts’ application of the version of the major questions doctrine articulated in King v. Burwell raised “concerns about major political dysfunction and institutional breakdowns”). ↑
  25.  Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022) (overruling Roe v. Wade, 410 U.S. 113 (1973)). ↑
  26.  See Shira Stein, Fiona Rutherford & Celine Castronuovo, White House Touts Abortion Pill as Answer to Roe Reversal but FDA Rules Limit Use, Bloomberg (June 30, 2022, 11:57 AM), https://www.bloomberg.com/news/articles/2022-06-30/white-house-touts-abortion-pill‌-as-answer-to-roe-reversal-but-fda-rules-limit-use [https://perma.cc/DWZ3-K25Z]; Dan Diamond & Rachel Roubein, Biden Official Vows Action on Abortion Following ‘Despicable’ Ruling, Wash. Post (June 28, 2022, 1:28 PM), https://www.washingtonpost.com/‌health/2022/06/28/abortion-access-becerra/ [https://perma.cc/4UKJ-GXJ9]. ↑
  27.  See U.S. Food & Drug Admin., Information About Mifepristone for Medical Termination of Pregnancy Through Ten Weeks Gestation, https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/mifeprex-mifepristone-information [https://perma.‌cc/G7Q4-VNU7] (last visited Jan. 24, 2023); U.S. Food & Drug Admin., Risk Evaluation and Mitigation Strategy (REMS) Single Shared System for Mifepristone 200MG (2019), https://www.accessdata.fda.gov/drugsatfda_docs/rems/Mifepristone_2021_05_14_REMS_Full.pdf [https://perma.cc/ULJ3-ZUET]. ↑
  28.  42 U.S.C. §§ 247d, 247d-6d(b)(1). ↑
  29.  U.S. Gov’t Accountability Off., GAO-08-751, Approval and Oversight of the Drug Mifeprex 2 (2008), https://www.gao.gov/assets/ 280/279424.pdf [https://perma.cc/J63V-C6CY]; Memorandum from Ctr. for Drug Evaluation & Rsch. to Sandra P. Arnold, Vice President, Corp. Affs., Population Council, 1 (Sept. 28, 2000), https://www.accessdata.‌fda.gov/drugsatfda_docs/appletter/2000/20687appltr.pdf [https://perma.cc/36XJ-FFZA]; 21 U.S.C. § 355-1(a)(1), (f)(2); id. § 355(b)(1), (d); 42 U.S.C. § 247d-6d(b). ↑

  30.  Original Complaint at 12, Texas v. Becerra, No. 22-cv-00185, 2022 WL 18034483 (N.D. Tex. Nov. 15, 2022), ECF No. 1 (challenging Department of Health and Human Services Secretary Becerra’s post-Dobbs guidance on major questions grounds). ↑

Catalyzing Judicial Federalism

Introduction

In response to a U.S. Supreme Court that is retrenching many important civil rights, some advocates are turning to state courts and constitutions as alternative means of protection.1 1.See, e.g., Riley Brennan, ACLU Staffs Up for New Initiative: ‘State Supreme Courts Are More Important Now Than Ever,’ ALM Law.com (May 2, 2023, 11:29 AM), https://www.law.com/2023/05/02/aclu-staffs-up-for-new-initiative-state-supreme-courts-are-more-important-now-than-ever [https://perma.cc/MN9H-9YRP]; Amy Myrick & Tamar Eisen, Building Protections for Reproductive Autonomy in State Constitutions, Ms. Mag. (May 24, 2022), https://msmagazine.com/2022/05/24/state-constitution-courts-abortion-rights/ [https://perma.cc/CJ8A-A5Q9] (“A more expansive vision for reproductive autonomy is necessary—and state courts can lead the way.”).Show More The Court’s regression follows a recent ideological change, a jurisprudential turn towards originalism and a long-standing normalization of judicial supremacy.2 2.See, e.g., David Cole, Egregiously Wrong: The Supreme Court’s Unprecedented Turn, N.Y. Rev. Books (Aug. 18, 2022), https://www.nybooks.com/articles/2022/08/18/egregious‌ly-wrong-the-supreme-courts-unprecedented-turn-david-cole/ [https://perma.cc/2CMZ-KV‌4F]; Mark A. Lemley, The Imperial Supreme Court, 136 Harv. L. Rev. F. 97, 110–11 (2022); Noah Feldman, Opinion, Supreme Court ‘Originalists’ Are Flying a False Flag, Bloomberg (July 17, 2022, 7:00 AM), https://www.bloomberg.com/opinion/articles/2022-07-17/supre‌me-court-s-conservative-originalists-are-flying-a-false-flag#xj4y7vzkg [https://perma.cc/FZM8-G2FG] (arguing that the Court relies on selective originalism to “rationalize its activism”).Show More For some, transplanting legal strategies from federal to state courts risks bringing this old soil with it.3 3.See, e.g., Christopher Jon Sprigman, Congress’s Article III Power and The Process of Constitutional Change, 95 N.Y.U. L. Rev. 1778, 1833 (2020) (observing that arguments in favor of placing “a lot of faith in state courts” as an alternative to federal courts “are especially weak” and recreate judicial supremacy); Joseph Fishkin, Courts and Constitutional Political Economy, LPE Project (July 24, 2021), https://lpeproject.org/blog/courts-and-constitutional-political-economy/ [https://perma.cc/M6AN-8VZF] (arguing that “[w]e need the courts, but we also need to understand that the courts are not our friends—and are unlikely ever to be,” and cautioning against placing our hopes in them); Zachary Clopton, Commentary, Judges Will Not Save Us. Pushing for Truly Democratic Solutions Will, Chi. Trib. (Aug. 24, 2022, 1:37 PM), https://www.chicagotribune.com/opinion/commentary/ct-opinion-state-courts-constitution-rights-judicial-supremacy-20220824-ig2eravofbb5rgh3k4ckzdw52a-story.html [https://perma.cc/ZKD9-EFJR] (suggesting excessive reliance on state courts “feeds into the notion of judicial supremacy that created these problems in the first place”).Show More That is, a pivot to the states risks perpetuating these pathologies and recreating at the state level the same regressive norms and jurisprudence that precipitated the turn in federal courts in the first place.

In this brief Essay, I explore two aspects of this view. First, there are good reasons to believe originalism will not achieve the traction among state supreme courts that it currently enjoys at the U.S. Supreme Court. Briefly stated, several of the theory’s bugs and features likely disincentivize its adoption by most state supreme courts. Second, the renewed interest in state courts provides advocates with an opportunity to protect their clients and advance their causes in ways that do not necessarily require the aggressive forms of judicial review that seem characteristic of federal constitutional culture. State-level institutions offer means to protect important rights and liberties that widen the lens beyond a myopic focus on constitutional litigation. In this Essay, I briefly highlight three of these pathways: direct democracy, state courts’ non-adjudicative powers, and the common law. To be sure, expansive constitutional protection via judicial interpretation may be necessary for certain rights in certain contexts. But for advocates turning to state-level institutions, that should not necessarily be the default rule. Rather, a meaningful turn to the states should draw on the broader constellation of tools for protecting rights available at the state level that may be more effective and flexible than the predominant federal approach.

  1.  See, e.g., Riley Brennan, ACLU Staffs Up for New Initiative: ‘State Supreme Courts Are More Important Now Than Ever,’ ALM Law.com (May 2, 2023, 11:29 AM), https://www.law.com/2023/05/02/aclu-staffs-up-for-new-initiative-state-supreme-courts-are-more-important-now-than-ever [https://perma.cc/MN9H-9YRP]; Amy Myrick & Tamar Eisen, Building Protections for Reproductive Autonomy in State Constitutions, Ms. Mag
    .

    (May 24, 2022), https://msmagazine.com/2022/05/24/state-constitution-courts-abortion-rights/ [https://perma.cc/CJ8A-A5Q9] (“A more expansive vision for reproductive autonomy is necessary—and state courts can lead the way.”). ↑

  2.  See, e.g., David Cole, Egregiously Wrong: The Supreme Court’s Unprecedented Turn, N.Y. Rev. Books (Aug. 18, 2022), https://www.nybooks.com/articles/2022/08/18/egregious‌ly-wrong-the-supreme-courts-unprecedented-turn-david-cole/ [https://perma.cc/2CMZ-KV‌4F]; Mark A. Lemley, The Imperial Supreme Court, 136 Harv. L. Rev. F
    .

    97, 110–11 (2022); Noah Feldman, Opinion, Supreme Court ‘Originalists’ Are Flying a False Flag, Bloomberg (July 17, 2022, 7:00 AM), https://www.bloomberg.com/opinion/articles/2022-07-17/supre‌me-court-s-conservative-originalists-are-flying-a-false-flag#xj4y7vzkg [https://perma.cc/FZM8-G2FG] (arguing that the Court relies on selective originalism to “rationalize its activism”). ↑

  3.  See, e.g., Christopher Jon Sprigman, Congress’s Article III Power and The Process of Constitutional Change, 95 N.Y.U. L. Rev. 1778, 1833 (2020) (observing that arguments in favor of placing “a lot of faith in state courts” as an alternative to federal courts “are especially weak” and recreate judicial supremacy); Joseph Fishkin, Courts and Constitutional Political Economy, LPE Project (July 24, 2021), https://lpeproject.org/blog/courts-and-constitutional-political-economy/ [https://perma.cc/M6AN-8VZF] (arguing that “[w]e need the courts, but we also need to understand that the courts are not our friends—and are unlikely ever to be,” and cautioning against placing our hopes in them); Zachary Clopton, Commentary, Judges Will Not Save Us. Pushing for Truly Democratic Solutions Will, Chi. Trib. (Aug. 24, 2022, 1:37 PM), https://www.chicagotribune.com/opinion/commentary/ct-opinion-state-courts-constitution-rights-judicial-supremacy-20220824-ig2eravofbb5rgh3k4ckzdw52a-story.html [https://perma.cc/ZKD9-EFJR] (suggesting excessive reliance on state courts “feeds into the notion of judicial supremacy that created these problems in the first place”). ↑

Chronic Nuisance Ordinances, Impossible Choices, and State Constitutions

Introduction

When Lakisha Briggs’s partner attacked her in April 2012, her daughter called the police.1 1.Lakisha Briggs, I Was a Domestic Violence Victim. My Town Wanted Me Evicted for Calling 911, Guardian (Sept. 11, 2015, 6:45 PM), https://www.theguardian.com/‌commentisfree/2015/sep/11/domestic-violence-victim-town-wanted-me-evicted-calling-911 [https://perma.cc/7NR4-Z269]; Verified First Amended Complaint at 10, Briggs v. Borough of Norristown, No. 2:13-cv-02191 (E.D. Pa. Apr. 29, 2013). Because Ms. Briggs’s story was well-publicized compared to most evictions resulting from chronic nuisance ordinance (“CNO”) enforcement, other scholarly pieces about chronic nuisance ordinances have also highlighted her endeavor. See, e.g., Salim Katach, Note, A Tenant’s Procedural Due Process Right in Chronic Nuisance Ordinance Jurisdictions, 43 Hofstra L. Rev. 875, 875–78 (2015).Show More Their response ensured that neither Ms. Briggs nor her daughter would ever take that risk again. Once officers arrived at Ms. Briggs’s home, they told her that, even as a victim of domestic violence, she was “on three strikes,” and they were “gonna have [her] landlord evict [her].”2 2.Briggs, supra note 1 (internal quotation marks omitted).Show More Unfortunately, Ms. Briggs lived in Norristown, Pennsylvania, one of hundreds of municipalities across the country with a chronic nuisance ordinance (“CNO”) in effect.3 3.Norristown, Pa., Mun. Code § 245-3 (2012). Norristown repealed this law as part of Briggs’s settlement, but its text remains available in Briggs’s complaint. Verified First Amended Complaint, supra note 1, at 1–2.Show More

Under a CNO, a local government can deem a property a “nuisance” when a certain number of police visits—responding to everything from marijuana use to domestic violence calls—occur at the property.4 4.SeeScout Katovich, NYCLU & ACLU, More Thana Nuisance: The Outsized Consequences of New York’s Nuisance Ordinances 6 (2018) [hereinafter More Than a Nuisance], https://www.nyclu.org/sites/default/files/field_documents/nyclu_nuisancereport_‌20180809.pdf [https://perma.cc/QPG3-L6P2] (explaining how CNOs operate in New York); see also Emily Werth, Sargent Shriver Nat’l Ctr. on Poverty L., The Cost of Being “Crime Free”: Legal and Practical Consequences of Crime Free Rental Housing and Nuisance Property Ordinances 2, 4, 8 (2013) (examining CNOs and other similar crime-free housing provisions in Illinois).Show More If the landlord fails to “abate the nuisance,” often an implicit command to evict the tenant, the locality retains broad discretion to impose heavy fines upon the landlord, revoke their rental license, close the property temporarily, or even seize it.5 5.More Than a Nuisance, supra note 4, at 6, 8; Matthew Desmond & Nicol Valdez, Unpolicing the Urban Poor: Consequences of Third-Party Policing for Inner-City Women, 78 Am. Socio. Rev. 117, 118–20 (2012) (identifying potential punishments).Show More With the threat of eviction looming over her and her children, Ms. Briggs was forced to suffer in silence.

Ms. Briggs’s troubles reached a new height two months later, when that same ex-partner stabbed her in the neck.6 6.Verified First Amended Complaint, supra note 1, at 15.Show More Despite her pleas not to call 9-1-1, concerned neighbors did so, and she was airlifted to the hospital.7 7.Erik Eckholm, Victims’ Dilemma: 911 Calls Can Bring Eviction, N.Y. Times (Aug. 16, 2013), https://www.nytimes.com/2013/08/17/us/victims-dilemma-911-calls-can-bring-evict‌ion.html [https://perma.cc/QUX7-ZWYG].Show More Her fears were well-founded. When she returned home, her landlord informed her that she had to leave within 14 days: the town’s restrictive nuisance ordinance “gave him no choice but to file a case against [her].”8 8.Briggs, supra note 1.Show More The town had revoked his license three days after Ms. Briggs was hospitalized.9 9.Verified First Amended Complaint, supra note 1, at 16.Show More Even though she subsequently succeeded in eviction court, the city insisted that Ms. Briggs leave.10 10.Briggs, supra note 1.Show More The Norristown ordinance “gave the city the power to condemn the property if [the landlord] did not remove me,” she explained.11 11.Id.Show More

Fortunately, the American Civil Liberties Union (“ACLU”) soon took up Ms. Briggs’s case.12 12.Verified First Amended Complaint, supra note 1, at 38.Show More She reached a settlement with the city that included repealing the CNO.13 13.Briggs, supra note 1; see also Press Release, ACLU, Norristown Will Pay $495,000 to Settle Case on Behalf of Woman Threatened with Eviction for Calling Police (Sept. 8, 2014), https://www.aclu.org/press-releases/pennsylvania-city-agrees-repeal-law-jeopardizes-safety-domestic-violence-survivors [https://perma.cc/GB3P-EV7Y] (stating that Norristown voted to repeal the ordinance as part of the Briggs settlement).Show More Pennsylvania then passed a law prohibiting municipalities from punishing victims for calling emergency services.14 14.53 Pa. Cons. Stat. § 304 (2014).Show More

Although Ms. Briggs and the ACLU succeeded in repealing this CNO, hundreds like it remain in effect throughout the United States—from its largest cities to its smallest towns.15 15.See, e.g., Cincinnati, Ohio, Mun. Code § 761-1-C–N (2013); Sumner, Wash., Mun. Code ch. 9.50 (2022). Over one hundred municipalities in Illinois have enacted CNOs and other harmful types of crime-free ordinances. Werth, supra note 4, at 26–28 app. A. A non-exhaustive study of Ohio CNOs and other crime-free ordinances revealed that at least forty municipalities have enacted them. Joseph Mead et al., Cleveland State Univ., Who Is a Nuisance? Criminal Activity Nuisance Ordinances in Ohio 19–20 app. A (2017). An investigation into New York CNOs revealed that twenty-five of the forty most populated municipalities outside of New York City have enacted them. More Than a Nuisance, supra note 4, at 10.Show More This Essay explores how CNOs harm marginalized groups and how local communities can stop that harm. Part I explains how CNOs typically operate and where they come from. Part II illustrates how CNOs can detrimentally impact communities of color, domestic violence victims, and people with physical and mental disabilities or illnesses. Finally, Part III examines how legal challenges and state-level reform can mitigate the harms of CNOs. This Essay intervenes in the scholarly discussion by arguing that state constitutional amendments—an undervalued instrument of reform—can limit harmful exercises of local power, invalidate CNOs, and strengthen individual rights. To that end, the Essay proposes model language for these amendments.

  1.  Lakisha Briggs, I Was a Domestic Violence Victim. My Town Wanted Me Evicted for Calling 911, Guardian (Sept. 11, 2015, 6:45 PM), https://www.theguardian.com/‌commentisfree/2015/sep/11/domestic-violence-victim-town-wanted-me-evicted-calling-911 [https://perma.cc/7NR4-Z269]; Verified First Amended Complaint at 10, Briggs v. Borough of Norristown, No. 2:13-cv-02191 (E.D. Pa. Apr. 29, 2013). Because Ms. Briggs’s story was well-publicized compared to most evictions resulting from chronic nuisance ordinance (“CNO”) enforcement, other scholarly pieces about chronic nuisance ordinances have also highlighted her endeavor. See, e.g., Salim Katach, Note, A Tenant’s Procedural Due Process Right in Chronic Nuisance Ordinance Jurisdictions,
    43 H

    ofstra

    L. R

    ev

    .

    875, 875–78 (2015). ↑

  2.  Briggs, supra note 1 (internal quotation marks omitted). ↑
  3. N

    orristown

    , P

    a

    ., M

    un

    . C

    ode § 245-3 (2012). Norristown repealed this law as part of Briggs’s settlement, but its text remains available in Briggs’s complaint. Verified First Amended Complaint, supra note 1, at 1–2. ↑

  4.  See Scout Katovich,
    NYCLU & ACLU, M

    ore

    T

    han

    a Nuisance: The Outsized Consequences of New York’s Nuisance Ordinances 6 (2018) [hereinafter More Than a Nuisance], https://www.nyclu.org/sites/default/files/field_documents/nyclu_nuisancereport_‌20180809.pdf [https://perma.cc/QPG3-L6P2] (explaining how CNOs operate in New York); see also Emily Werth, Sargent Shriver Nat’l Ctr. on Poverty L., The Cost of Being “Crime Free”: Legal and Practical Consequences of Crime Free Rental Housing and Nuisance Property Ordinances 2, 4, 8 (2013) (examining CNOs and other similar crime-free housing provisions in Illinois). ↑

  5.  More Than a Nuisance, supra note 4, at 6, 8; Matthew Desmond & Nicol Valdez, Unpolicing the Urban Poor: Consequences of Third-Party Policing for Inner-City Women, 78 Am. Socio. Rev. 117, 118–20 (2012) (identifying potential punishments). ↑
  6.  Verified First Amended Complaint, supra note 1, at 15. ↑
  7.  Erik Eckholm, Victims’ Dilemma: 911 Calls Can Bring Eviction, N.Y. Times (Aug. 16, 2013), https://www.nytimes.com/2013/08/17/us/victims-dilemma-911-calls-can-bring-evict‌ion.html [https://perma.cc/QUX7-ZWYG]. ↑
  8.  Briggs, supra note 1. ↑
  9.  Verified First Amended Complaint, supra note 1, at 16. ↑
  10.  Briggs, supra note 1. ↑
  11.  Id. ↑
  12.  Verified First Amended Complaint, supra note 1, at 38. ↑
  13.  Briggs, supra note 1; see also Press Release, ACLU, Norristown Will Pay $495,000 to Settle Case on Behalf of Woman Threatened with Eviction for Calling Police (Sept. 8, 2014), https://www.aclu.org/press-releases/pennsylvania-city-agrees-repeal-law-jeopardizes-safety-domestic-violence-survivors [https://perma.cc/GB3P-EV7Y] (stating that Norristown voted to repeal the ordinance as part of the Briggs settlement). ↑
  14.  53 Pa. Cons. Stat.
    § 304 (2014).

    ↑

  15.  See, e.g., Cincinnati, Ohio, Mun. Code § 761-1-C–N (2013); Sumner, Wash., Mun. Code ch. 9.50 (2022). Over one hundred municipalities in Illinois have enacted CNOs and other harmful types of crime-free ordinances. Werth, supra note 4, at 26–28 app. A. A non-exhaustive study of Ohio CNOs and other crime-free ordinances revealed that at least forty municipalities have enacted them. Joseph Mead et al., Cleveland State Univ., Who Is a Nuisance? Criminal Activity Nuisance Ordinances in Ohio 19–20 app. A (2017). An investigation into New York CNOs revealed that twenty-five of the forty most populated municipalities outside of New York City have enacted them. More Than a Nuisance, supra note 4, at 10. ↑

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