Issue 5

A Clash of Constitutional Covenants: Reconciling State Sovereign Immunity and Just Compensation

When two bedrock constitutional guarantees come in conflict, which one prevails? This Note explores the clash between state sovereign immunity and the right to just compensation in inverse condemnation actions. When a state physically invades private property without providing remuneration, plaintiffs rightly take to federal court, asserting their entitlement to just compensation. Yet, state sovereign immunity shields the state from liability—permitting a work-around of the Fifth Amendment. Recognizing this conflict, the federal circuit courts have devised a clever, albeit faulty, solution. Relying on a law review article and dicta, the circuit courts have held that state sovereign immunity can bar inverse condemnation suits in federal courts so long as the state courts theoretically remain open to adjudicate the claims. Yet, as this Note will demonstrate, such an approach is unmoored from precedent and practicability. A proper solution is called for. This Note will discuss alternate ways out of the clash and will ultimately recommend a novel approach: private officer suits with a relaxed qualified immunity bar. As real-world people continue to face permanent damage to their property at the hands of the state, while being deprived of a constitutional guarantee to just compensation, this Note seeks to solve a timely and pressing dilemma.

Introduction: The Clash

Two concepts abound in Anglo-American jurisprudence that shape the contours of sovereign power: state sovereign immunity and the right to just compensation. The first recognizes a supreme authority; the other imposes a limitation on authority. Both are deeply entrenched in the common law.1 1.Alden v. Maine, 527 U.S. 706, 715 (1999) (“When the Constitution was ratified, it was well established . . . that the Crown could not be sued without consent in its own courts.”); Sinnickson v. Johnson, 17 N.J.L. 129, 145 (N.J. 1839) (“[I]t seems to have been considered a settled principle of universal law, that the right to compensation, is an incident to the exercise of [the eminent domain] power: that the one is so inseparably connected with the other, that they may be said to exist not as separate and distinct principles, but as parts of one and the same principle.”).Show More Yet, while other seemingly contradictory constitutional provisions leave room for “play in the joints”2 2.Locke v. Davey, 540 U.S. 712, 712 (2004).Show More between them, ensuring both principles are upheld, in many situations state sovereign immunity and the right to just compensation present a zero-sum game. Either the state must consent (or be forced to consent) to liability, or the person whose property has been taken must forego a constitutionally guaranteed remedy of just compensation.3 3.U.S. Const. amend. V; Chi., Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S. 226, 241 (1897) (incorporating the Amendment against the states).Show More

This circumstance is limited to when a taking is disputed—that is, when the state acts in such a way that deprives the plaintiff of her property or destroys her property, but that is not a formal exercise of the eminent domain power.4 4.Eric Berger, The Collision of the Takings and State Sovereign Immunity Doctrines, 63 Wash. & Lee L. Rev. 493, 501 (2006).Show More Even though the plaintiff can try to enjoin the government to stop the activity, she at least will suffer a temporary taking for which she is entitled to compensation.5 5.First Eng. Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 306–08 (1987).Show More And often, the government activity will result in permanent damage. Yet, state sovereign immunity will likely bar any action for damages in federal court, and the plaintiff will be deprived of just compensation.6 6.Berger, supranote 4, at 502.Show More She will find herself completely without a federal remedy.

An illustration will ground the point. Recently, confronting a history of heavy rainfall that impeded evacuation efforts during severe weather events, the Texas Department of Transportation installed an impenetrable concrete median in the middle of Interstate 10.7 7.Devillier v. Texas, No. 20-cv-00223, 2021 WL 1200893, at *1 (S.D. Tex. Feb. 22, 2021).Show More The barrier “effectively created a dam” by “barricading all rainfall on the northside” of the Interstate, so as to allow future travelers to use the southernmost lanes for evacuation.8 8.Id.Show More When heavy rainfall occurred again, the State’s plan was successful: a significant quantity of water accumulated against the northernmost side of the dam.9 9.Id.Show More But, then, with nowhere to drain, the water flooded and destroyed private property to the north of the Interstate.10 10.Id.Show More When the owners brought suit, acknowledging the public benefit of the dam but asserting their constitutional guarantee to just compensation, the State of Texas raised its hands, claiming sovereign immunity.11 11.Id.at *6. Although the magistrate judge found Texas waived its immunity by removing the suit to federal court, this issue is disputed and will not always arise in a proceeding where a state is more careful.Show More The matter is on appeal, but, under current understandings of state sovereign immunity, whether or not the plaintiffs will be able to recover is far from clear.12 12.The U.S Court of Appeals for the Fifth Circuit’s subsequent denial of rehearing en banc inspired a fascinating dissent by Judge Oldham highlighting many of the dangers discussed in this Note, as well as tangential dangers beyond the scope of this Note. See Devillier v. State, 63 F.4th 416, 426–41 (5th Cir. 2023) (Oldham, J., dissenting from the denial of rehearing en banc).Show More

This Note will focus on similar plights—claims of a right to just compensation after an “inverse condemnation” by the state.13 13.SeeUnited States v. Clarke, 445 U.S. 253, 255 (1980) (explaining the difference between inverse condemnation and formal eminent domain).Show More This Note limits its understanding of “inverse condemnation” to situations where private property is physically harmed or physically invaded. This Note will not focus on “regulatory takings,” where a government ordinance so diminishes the value of property that it can be called a “taking.”14 14.See, e.g., Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992).Show More

The Supreme Court has yet to issue a holding on which age-old provision must yield in these cases: state sovereign immunity or the right to just compensation.15 15.But seeFirst Eng.Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 316 n.9 (1987) (acknowledging the clash between sovereign immunity and just compensation and noting that “the Constitution . . . dictates the remedy for interference with property rights amounting to a taking”); infraSection III.A.Show More In fact, the Court has expressly ducked resolving the clash.16 16.The Court in Palazzolo v. RhodeIsland, 533 U.S. 606 (2001), neglected to address an argument presented in an amicus brief that sovereign immunity always trumps the just compensation guarantee. See Amicus Brief of the Board of County Commissioners of the County of La Plata, Colorado in Support of the Respondents State of Rhode Island, et al., Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (No. 99-2047), 2001 WL 15620, at *20–21.Show More In the Court’s October 2020 Term, it did hold that states surrendered their sovereign immunity in the “plan of the Convention” when the federal eminent domain power is being used against a state.17 17.PennEast Pipeline Co. v. New Jersey, 141 S. Ct. 2244, 2263 (2021).Show More But the Supreme Court has not decided whether state sovereign immunity gives way in a case where a private plaintiff brings suit against a state. In addressing this conflict, the federal circuit courts have adopted a Solomonic approach. Relying on a due process analogy18 18.Reich v. Collins, 513 U.S. 106 (1994).Show More and a law review article,19 19.Richard H. Seamon, The Asymmetry of State Sovereign Immunity, 76 Wash. L. Rev. 1067 (2001).Show More these courts have held that state sovereign immunity bars a claim for inverse condemnation in federal court, so long as the state courts theoretically remain open to adjudicate federal takings claims.20 20.DLX, Inc. v. Kentucky, 381 F.3d 511, 527 (6th Cir. 2004) (citing Reich, 513 U.S. at 110); Jachetta v. United States, 653 F.3d 898, 909 (9th Cir. 2011); Seven Up Pete Venture v. Schweitzer, 523 F.3d 948, 956 (9th Cir. 2008); Hutto v. S.C. Ret. Sys., 773 F.3d 536, 552 (4th Cir. 2014); Williams v. Utah Dep’t of Corr., 928 F.3d 1209, 1213 (10th Cir. 2019); Frein v. Pa. State Police, 47 F.4th 247, 257 (3d Cir. 2022).Show More Yet, for reasons outlined below, this approach is unmoored from reason, history, and Supreme Court precedent. This Note will offer potential ways out of the thicket that are superior to the current approach of the lower federal courts. In so doing, this Note makes a few novel contributions. It is the first to point out the fallibilities with the circuit courts’ approach to just compensation suits against states. It is also the first to examine a range of new potential solutions to a clash that continues to evolve. Finally, it is the first to recommend a relaxation of qualified immunity’s “clearly established” bar in order to allow inverse condemnation plaintiffs to recover from public officials.

This Note proceeds as follows. Part I will discuss the histories of state sovereign immunity and just compensation provisions. Part II will discuss the recent approach of the circuit courts in inverse condemnation suits against states and point out why this approach is in error. Part III will offer novel potential answers. Part IV will conclude.

  1.  Alden v. Maine, 527 U.S. 706, 715 (1999) (“When the Constitution was ratified, it was well established . . . that the Crown could not be sued without consent in its own courts.”); Sinnickson v. Johnson, 17 N.J.L. 129, 145 (N.J. 1839) (“[I]t seems to have been considered a settled principle of universal law, that the right to compensation, is an incident to the exercise of [the eminent domain] power: that the one is so inseparably connected with the other, that they may be said to exist not as separate and distinct principles, but as parts of one and the same principle.”). ↑
  2.  Locke v. Davey, 540 U.S. 712, 712 (2004). ↑
  3.  U.S. Const. amend. V; Chi., Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S. 226, 241 (1897) (incorporating the Amendment against the states). ↑
  4.  Eric Berger, The Collision of the Takings and State Sovereign Immunity Doctrines, 63 Wash. & Lee L. Rev. 493, 501 (2006). ↑
  5.  First Eng. Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 306–08 (1987). ↑
  6.  Berger, supra note 4, at 502. ↑
  7.  Devillier v. Texas, No. 20-cv-00223, 2021 WL 1200893, at *1 (S.D. Tex. Feb. 22, 2021). ↑
  8.  Id. ↑
  9.  Id. ↑
  10.  Id. ↑
  11.  Id. at *6. Although the magistrate judge found Texas waived its immunity by removing the suit to federal court, this issue is disputed and will not always arise in a proceeding where a state is more careful. ↑
  12.  The U.S Court of Appeals for the Fifth Circuit’s subsequent denial of rehearing en banc inspired a fascinating dissent by Judge Oldham highlighting many of the dangers discussed in this Note, as well as tangential dangers beyond the scope of this Note. See Devillier v. State, 63 F.4th 416, 426–41 (5th Cir. 2023) (Oldham, J., dissenting from the denial of rehearing en banc). ↑
  13.  See United States v. Clarke, 445 U.S. 253, 255 (1980) (explaining the difference between inverse condemnation and formal eminent domain). ↑
  14.  See, e.g., Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992). ↑
  15.  But see First Eng. Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 316 n.9 (1987) (acknowledging the clash between sovereign immunity and just compensation and noting that “the Constitution . . . dictates the remedy for interference with property rights amounting to a taking”); infra Section III.A. ↑
  16.  The Court in Palazzolo v. Rhode Island, 533 U.S. 606 (2001), neglected to address an argument presented in an amicus brief that sovereign immunity always trumps the just compensation guarantee. See Amicus Brief of the Board of County Commissioners of the County of La Plata, Colorado in Support of the Respondents State of Rhode Island, et al., Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (No. 99-2047), 2001 WL 15620, at *20–21. ↑
  17.  PennEast Pipeline Co. v. New Jersey, 141 S. Ct. 2244, 2263 (2021). ↑
  18.  Reich v. Collins, 513 U.S. 106 (1994). ↑
  19.  Richard H. Seamon, The Asymmetry of State Sovereign Immunity, 76 Wash. L. Rev. 1067 (2001). ↑

  20.  DLX, Inc. v. Kentucky, 381 F.3d 511, 527 (6th Cir. 2004) (citing Reich, 513 U.S. at 110); Jachetta v. United States, 653 F.3d 898, 909 (9th Cir. 2011); Seven Up Pete Venture v. Schweitzer, 523 F.3d 948, 956 (9th Cir. 2008); Hutto v. S.C. Ret. Sys., 773 F.3d 536, 552 (4th Cir. 2014); Williams v. Utah Dep’t of Corr., 928 F.3d 1209, 1213 (10th Cir. 2019); Frein v. Pa. State Police, 47 F.4th 247, 257 (3d Cir. 2022). ↑

Second-Order Decisions in Rights Conflicts

Introduction

How should judges decide hard cases involving rights conflicts? Standard debates about how to answer this question are usually framed in jurisprudential terms. Legal positivists claim that the law is sufficiently “open textured” that it will not provide judges with guidance in some range of cases.1 1.See H.L.A. Hart, The Concept of Law 127–29 (2d ed. 1994).Show More The law is said to “run out” or to be incomplete.2 2.Id. at 272 (“[I]n any legal system there will always be certain legally unregulated cases in which on some point no decision either way is dictated by the law and the law is accordingly partly indeterminate or incomplete.”).Show More In such cases, legal sources—constitutions, statutes, executive orders, agency regulations, and so on—do not provide reasons that determine the legal question at issue. When the law runs out in this way, judges have no choice but to exercise discretion. They cannot reason within the limits of the law. They must reach beyond it by relying on policy considerations or judgments drawn from political morality. How often this happens is a matter of dispute among legal positivists and theorists who take a more critical stance toward the law.3 3.See Brian Leiter, Legal Indeterminacy, 1 Legal Theory 481, 487–88 (1995) (distinguishing “global” from “local” indeterminacy and rejecting the former); Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. Chi. L. Rev. 462, 470 (1987) (criticizing the “strong” indeterminacy thesis that all cases are “hard” cases).Show More But whether the law runs out only in some cases, or, more radically, in all of them, judges will face the question of how to adjudicate conflicts when they lack sufficient legal reasons.

The traditional competitor to both positivist and critical legal theories has been an anti-positivist view that rejects the possibility of judicial discretion in hard cases. Most famously, Ronald Dworkin defended a single-right-answer thesis, according to which every conflict of rights has a unique or determinate outcome.4 4.See Ronald Dworkin, Taking Rights Seriously 81–130, 279–90 (1977) [hereinafter Dworkin, Taking Rights Seriously]; Ronald Dworkin, No Right Answer?, 53 N.Y.U. L. Rev. 1, 32 (1978).Show More That is because, on his view, the law never (or almost never) runs out. At least in complex and well-developed legal systems, there are always legal sources, as well as moral values and principles embedded within the law, that provide judges with reasons to favor one outcome over another.5 5.See Dworkin, Taking Rights Seriously, supra note 4, at 286.Show More Judges never have to reach beyond the law to adjudicate rights conflicts. The law, in this view, is a complete system. It will contain sufficient reasons for making legal decisions, and the job of judges, however difficult, is to discern them.

Attempting to sidestep this long-standing debate over whether—or to what extent—there are hard cases, some legal scholars have recently taken up the question of how to decide such cases if, or when, they do indeed exist. In a leading account offered by Charles Barzun and Michael Gilbert, when ordinary considerations of law and justice leave judges uncertain about how to adjudicate rights disputes, those judges should adopt a second-order decision-making procedure to determine the outcome.6 6.On the distinction between first- and second-order decisions, see Cass R. Sunstein & Edna Ullmann-Margalit, Second-Order Decisions, 110 Ethics 5, 6–7 (1999) [hereinafter Sunstein & Ullmann-Margalit, Second-Order Decisions]; Edna Ullmann-Margalit, Difficult Choices: To Agonize or Not to Agonize?, 74 Soc. Rsch. 51, 70–71 (2007) [hereinafter Ullmann-Margalit, Difficult Choices]; Edna Ullmann-Margalit & Sidney Morgenbesser, Picking and Choosing, 44 Soc. Rsch. 757, 775 (1977) [hereinafter Ullmann-Margalit & Morgenbesser, Picking and Choosing].Show More More specifically, and by analogy to the idea of “least cost avoidance” familiar from the economic analysis of private law,7 7.See Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis 140 (1970) (discussing the “cheapest cost avoider”).Show More they argue for a conflict-avoidance principle, which holds that “courts should decide hard cases against the party who could have more easily avoided the constitutional conflict in the first place.”8 8.Charles L. Barzun & Michael D. Gilbert, Conflict Avoidance in Constitutional Law, 107 Va. L. Rev. 1, 3 (2021) (emphasis omitted).Show More The promise of this principle is that, by following it, judges would resolve hard cases in a way that encourages the parties to avoid rights conflicts. If successful, this decision-making strategy would, in turn, reduce the incidence of hard cases. Judges would face fewer conflicts in which they are uncertain about how to apply the relevant first-order considerations of law and political morality.

The conflict-avoidance approach to adjudicating hard cases is both novel and ingenious. To our knowledge, and perhaps surprisingly, no one has previously proposed resolving legal indeterminacies by aiming to reduce cases that produce such indeterminacies. Of course, others have argued that their theories of adjudication would ameliorate trenchant political, social, and cultural controversies, including those involving constitutional rights.9 9.See generally, e.g., Jamal Greene, How Rights Went Wrong (2021) (arguing that rights balancing can reduce social and political conflict); Robert L. Tsai, Practical Equality: Forging Justice in a Divided Nation (2019) (defending a pragmatic approach to achieving equality).Show More But Barzun and Gilbert’s proposal is distinctive in that it only applies in hard cases. Theirs is a “meta-principle”10 10.Barzun & Gilbert, supra note 8, at 7 n.18.Show More of adjudication, rather than a general approach applicable to all cases involving rights conflicts. In conflict avoidance, hard cases are resolved recursively for the purpose of preventing more hard cases.11 11.In recent work, Aaron Tang has proposed a “harm avoider” approach to constitutional adjudication. See Aaron Tang, Harm-Avoider Constitutionalism, 109 Calif. L. Rev. 1847, 1849 (2021). His theory bears some resemblance to Barzun and Gilbert’s, but, for our purposes, there is a crucial difference. Barzun and Gilbert’s theory of conflict avoidance adopts an ex ante perspective, which is focused on what parties to a conflict could have done in advance to avoid it. See Barzun & Gilbert, supra note 8, at 10, 28. Tang’s theory considers both what measures parties could have taken “retrospectively” and what measures they might take “prospectively” to avoid the adverse consequences of a court decision. See Tang, supra, at 1885 n.265. But as Barzun and Gilbert point out, Tang’s approach foregrounds the least cost bearer rather than the least cost avoider. See Barzun & Gilbert, supra note 8, at 16 n.46. His theory also raises the question of how courts should make decisions when the least cost avoider and the least cost bearer are different parties. The party that is best positioned to avoid harms ex ante might not be the party that is best positioned to bear those costs ex post. Here we focus mainly on the pure ex ante theory offered by Barzun and Gilbert to justify their conflict-avoidance principle, although we return briefly to Tang’s view infra Subsection II.D.2 at note 135 to mark its possible distinctiveness from other proportionality or interest-balancing views.Show More

Despite its originality and prima facie appeal, we argue that there are several reasons to avoid adoption of the conflict-avoidance principle. The argument for that principle draws on an analogy to accidents in tort law. Both accidents and hard cases involve significant costs. Just as car accidents lead to physical injuries—as well as to the administrative costs of insurance, adjudication, and compensation—hard cases produce costs for the parties to litigation and for the courts that decide them. But this analogy is one-sided and potentially misleading. Whereas accidents only produce costs, hard cases may generate important epistemic and moral benefits by serving as vehicles for deliberation, social contestation, and political or legal reform. Thinking of hard cases as if they were accidents also contributes to a pessimistic conception of rights adjudication, one with a neoliberal or libertarian tilt that favors private ordering over public and democratic decision-making.

The case for conflict avoidance is also incomplete. Courts faced with hard cases have available to them a variety of second-order decision procedures, including deference to other (or future) decision-makers, defaults favoring political values of liberty or equality, interest balancing (including theories of proportionality review and harm avoidance), and the use of lotteries or other chance devices. Selecting among these second-order strategies requires justification. If judges adopt conflict avoidance, they must have reasons to reject the others. Surveying alternatives can help clarify the values that support cost-avoidance as well as those that recommend against it.

Second-order decision-making strategies may have an important place in deciding hard cases. But in adopting them, we urge caution. The use of hypothetical examples as toy cases—to demonstrate how a theory works, rather than to recommend a particular application—may suggest that hard cases are far more prevalent in the legal system than in fact they are. Many cases that are described as “hard” may turn out to involve reasonable disagreements, rather than more intractable forms of legal incompleteness, such as indeterminacy or radical uncertainty about what the law or justice requires. And in those cases, judges may be able to proceed based on first-order reasons, without having to ascend to second-order theories of adjudication. Indeed, facing the prospect of applying second-order procedures may lead judges to conclude that law and morality do, after all, provide the right answers.

  1.  See H.L.A. Hart, The Concept of Law 127–29 (2d ed. 1994). ↑
  2.  Id. at 272 (“[I]n any legal system there will always be certain legally unregulated cases in which on some point no decision either way is dictated by the law and the law is accordingly partly indeterminate or incomplete.”). ↑
  3.  See Brian Leiter, Legal Indeterminacy, 1 Legal Theory 481, 487–88 (1995) (distinguishing “global” from “local” indeterminacy and rejecting the former); Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. Chi. L. Rev. 462, 470 (1987) (criticizing the “strong” indeterminacy thesis that all cases are “hard” cases). ↑
  4.  See Ronald Dworkin, Taking Rights Seriously 81–130, 279–90 (1977) [hereinafter Dworkin, Taking Rights Seriously]; Ronald Dworkin, No Right Answer?, 53 N.Y.U. L. Rev. 1, 32 (1978). ↑
  5.  See Dworkin, Taking Rights Seriously, supra note 4, at 286. ↑
  6.  On the distinction between first- and second-order decisions, see Cass R. Sunstein & Edna Ullmann-Margalit, Second-Order Decisions, 110 Ethics 5, 6–7 (1999) [hereinafter Sunstein & Ullmann-Margalit, Second-Order Decisions]; Edna Ullmann-Margalit, Difficult Choices: To Agonize or Not to Agonize?, 74 Soc. Rsch. 51, 70–71 (2007) [hereinafter Ullmann-Margalit, Difficult Choices]; Edna Ullmann-Margalit & Sidney Morgenbesser, Picking and Choosing, 44 Soc. Rsch. 757, 775 (1977) [hereinafter Ullmann-Margalit & Morgenbesser, Picking and Choosing]. ↑
  7.  See Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis 140 (1970) (discussing the “cheapest cost avoider”). ↑
  8.  Charles L. Barzun & Michael D. Gilbert, Conflict Avoidance in Constitutional Law, 107 Va. L. Rev. 1, 3 (2021) (emphasis omitted). ↑
  9.  See generally, e.g., Jamal Greene, How Rights Went Wrong (2021) (arguing that rights balancing can reduce social and political conflict); Robert L. Tsai, Practical Equality: Forging Justice in a Divided Nation (2019) (defending a pragmatic approach to achieving equality). ↑
  10.  Barzun & Gilbert, supra note 8, at 7 n.18. ↑

  11.  In recent work, Aaron Tang has proposed a “harm avoider” approach to constitutional adjudication. See Aaron Tang, Harm-Avoider Constitutionalism, 109 Calif. L. Rev. 1847, 1849 (2021). His theory bears some resemblance to Barzun and Gilbert’s, but, for our purposes, there is a crucial difference. Barzun and Gilbert’s theory of conflict avoidance adopts an ex ante perspective, which is focused on what parties to a conflict could have done in advance to avoid it. See Barzun & Gilbert, supra note 8, at 10, 28. Tang’s theory considers both what measures parties could have taken “retrospectively” and what measures they might take “prospectively” to avoid the adverse consequences of a court decision. See Tang, supra, at 1885 n.265. But as Barzun and Gilbert point out, Tang’s approach foregrounds the least cost bearer rather than the least cost avoider. See Barzun & Gilbert, supra note 8, at 16 n.46. His theory also raises the question of how courts should make decisions when the least cost avoider and the least cost bearer are different parties. The party that is best positioned to avoid harms ex ante might not be the party that is best positioned to bear those costs ex post. Here we focus mainly on the pure ex ante theory offered by Barzun and Gilbert to justify their conflict-avoidance principle, although we return briefly to Tang’s view infra Subsection II.D.2 at note 135 to mark its possible distinctiveness from other proportionality or interest-balancing views. ↑

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). ↑

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