State Supreme Courts and the “Major Questions” Doctrine

When a legislative body delegates authority to an administrative agency, it cannot envision every future scenario, and often uses language that is regrettably—but necessarily—imprecise. Take, for example, the power given the Wisconsin Department of Natural Resources to exercise “general supervision and control over the waters of the state.”[1] Or consider the United States Environmental Protection Agency’s authority to select the “best system of emission reduction” for certain entities emitting air pollution. (The United States Supreme Court analyzed the scope of the latter provision earlier this summer in West Virginia v. EPA). Operationalizing such vaguely worded authority has proven difficult for agencies. Disputes about the true extent of the delegation arise when the agency takes action near the limit of the delegation.

In the legal skirmishes that result, courts sometimes find the agency has gone too far. The most recent, high-profile example of this is the West Virginia case, in which the Court endorsed the “major questions” doctrine. The Court examined EPA’s authority to enact a plan to cut emissions of carbon dioxide from power plants. To some extent, the plan required a “generation shifting” approach mandating a transition from fossil fuels to renewable energy sources such as solar and wind. The Court took a skeptical view of the plan. It held that in certain “extraordinary cases” raising a “major question” of “economic and political significance,” there is good reason to restrain the scope of an administrative agency’s power, especially if Congress had not clearly delegated authority for the agency to take the questioned action. The Court further explained that the doctrine flows from traditional separation of powers principles inherent in the federal constitution. The holding seems likely to restrict the reach of just about any federal agency’s authority.

In light of West Virginia, will state courts adopt state-level equivalents of the “major questions” doctrine, based on the parallel separation of powers principles in state constitutions? In Wisconsin, the answer is not as clear as you might think, particularly in light of two recent Wisconsin Supreme Court opinions rejecting constraints on agency power, even when based on murky conferrals of legislative authority.

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Feingold on a Possible US Constitutional Convention: “You’d Better Worry About It”

A national constitutional convention? An overhaul of American government that would bar the federal government from involvement in many issues, such as civil rights and environment? Might seem far-fetched.

“It’s not far-fetched,” Russ Feingold, a former Democratic US senator from Wisconsin, said Tuesday, August 30, 2022, during an “On the Issues with Mike Gousha” program in the Lubar Center at Eckstein Hall. There are groups working hard to make such a convention come to pass and to gut the federal government as we know it, Feingold said.

Feingold, now president of the American Constitution Society, and Peter Prindiville, a non-resident fellow at the Stanford Constitutional Law Center and an attorney in Washington, D.C., have co-authored a book, officially released the day of the program, titled, The Constitution in Jeopardy:  An Unprecedented Effort to Rewrite our Fundamental Law and What We Can Do About It.

“We’re here to say it’s happening and you’d better worry about it,” Feingold said. “This isn’t January 6. This is legal.”

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Texas Deputies and S.B. 8

If you’re like the rest of the United States, then you are aware of the recent attempts to restrict the right to abortion pre-viability — a right affirmed by the Supreme Court in Planned Parenthood v Casey., 505 U.S. 833. Despite the holding in Planned Parenthood, States continue to pass legislation restricting abortion. In some States, these attempts are no more than a brazen attempt to ban nontherapeutic pre-viability abortions.

By the end of 2021, some fifteen States had passed legislation that banned non-therapeutic pre-viability abortions, commonly referred to as “Heartbeat bills.” (As of this writing, the states are Alabama, Arkansas, Georgia, Idaho, Iowa, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Ohio, Oklahoma, South Carolina, Tennessee, and Texas.) Though neither the progenitor nor the ultimate occurrence, S.B. 8, passed by Texas’s legislature and signed into law by Governor Abbott, has created rather significant waves in the legal landscape. Perhaps predictably, other States have emulated Texas’s approach, an approach that some commentators call the most restrictive abortion legislation to be passed post-Roe v. Wade (410 U.S. 113). A quick perusal of one’s favorite internet search engine will reveal the myriad commentary discussing the ways in which Texas and other States have been ingeniously skirting the dictates of the Supreme Court.

So, what is it that makes Texas’s legislation so newsworthy? Truly, it is not the restrictions that Texas has imposed that makes this law exceptional. After all, States have been passing restrictions on abortion long before the right was recognized by the Supreme Court. It is, also, not the fact that Texas is attempting to make it impossible for women, other than victims of rape and incest, to obtain an abortion once a heartbeat is detected; Texas is hardly novel in its endeavors in this area. What makes Senate Bill 8 so exceptional is its novel enforcement scheme.

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