Remembering President Lovell’s Leadership on Water Issues

Marquette President Michael R. Lovell

On September 19, 2014, Dr. Michael R. Lovell delivered his inaugural address upon taking office as Marquette University’s 24th president. That day Dr. Lovell announced that Marquette would expand its role in the water sector, encouraging Marquette faculty, staff, and students to develop water solutions “that will change the world.” This was not an isolated commitment; it extended Dr. Lovell’s history of strong support for water initiatives and continued during the decade he spent at Marquette’s helm.

With the news of his untimely passing last week, my purpose here is to reflect on the significant legacy Dr. Lovell leaves behind in the water sphere, as most recently embodied in Marquette’s evolution as a center for work aimed at helping to solve the world’s water problems.

Today, the growth in Marquette’s interdisciplinary water research team evidences the university’s unwavering commitment to the subject. The group includes faculty members from a variety of disciplines including biology, economics, education, engineering, law, and political science. Its members have expertise in water and wastewater treatment technologies, stormwater management, materials and sensors, sustainable and resilient communities, water law and policy, hydrology, and many other areas.

Dr. Lovell was always proud to mention the interdisciplinary projects the team was pursuing, often making it a point to note how many different academic units were involved from across campus under the guiding hand of Dr. Jeanne Hossenlopp, Vice President for Research and Innovation. Most recently, the water group secured Marquette’s largest ever federal award for water research, a large-scale interdisciplinary research partnership with the United States Army Corps of Engineers to promote healthier environments for both military personnel and civilians. 

Of course, these research efforts are only one aspect of Marquette’s commitment to water innovation. The university also has become a leader in water education, sustainability, and community engagement and partnerships. It is training future generations of water leaders in a variety of academic disciplines.

Some of this work had been ongoing prior to Dr. Lovell’s arrival at Marquette, such as the formation of the Water Quality Center in the College of Engineering and the Law School’s active engagement in the Milwaukee regional water initiative since its creation in the early 2000s. But with Dr. Lovell’s call—and challenge—to all units of the university for greater engagement with matters involving water, these efforts flourished. For example, the Law School announced an expanded Water Law and Policy Initiative that now offers students a wider suite of courses and fieldwork opportunities, regularly hosts public events and conferences, and pursues independent and funded research opportunities.

A discussion of Dr. Lovell’s water legacy would be incomplete without mentioning his work prior to his arrival at Marquette. As chancellor of the University of Wisconsin-Milwaukee, he was a driving force behind the establishment of The Water Council, a key Milwaukee-based organization dedicated to establishing the region as a global hub dedicated to solving critical water challenges. Also under Dr. Lovell’s leadership, UWM announced a plan to create the nation’s first School of Freshwater Sciences.

In closing, it seems appropriate to mention that President Lovell’s focus on water issues was likely rooted in his strong Catholic faith. He often was interested in discussing Pope Francis’s encyclical letter confirming that water is “a fundamental right” that is “indispensable to human life,” and calling for engagement in an “open and respectful dialogue” about water policies, laws, and technologies. Dr. Lovell also signed the St. Francis Pledge, committing Marquette to join many other academic institutions recognizing a duty to care for the environment and protect the poor and vulnerable, among other things. With Dr. Lovell’s passing, it is up to us to steadfastly carry on this important work.

Continue ReadingRemembering President Lovell’s Leadership on Water Issues

Saving the Consumer Financial Protection Bureau (and the Constitution) from the Courts

[This piece is cross-posted and was originally published in the Yale J. on Reg.: Notice & Comment blog] Administrative law is almost certain to undergo monumental change during the Supreme Court’s current Term.  On May 16, 2024, the Court issued its first in a series of blockbuster administrative law decisions: Consumer Financial Protection Bureau v. Community Financial Services Ass’n. The Court’s 7-2 decision declaring the Bureau’s funding structure constitutional brings good news for the administrative state — Justice Thomas’s majority opinion validated the ongoing regulatory activities of not just the Bureau but also similarly funded financial regulators such as the Federal Reserve.  The decision also brings good news for originalism. Justice Thomas’s analysis centered on original public meaning and drew a strong majority of Justices, albeit in a case that may have been relatively easy once the Justices had the benefit of additional briefing on historical issues.  His opinion focused on the “narrow question whether” the Bureau’s standing and self-directed “funding mechanism complies with the Appropriations Clause.” Slip op. at 1. At the same time, concurring opinions by Justices Kagan and Jackson and a dissenting opinion by Justice Alito suggested that the Justices might adopt differing analyses of text and history when faced with more challenging issues in the future.

In the decision on appeal, the United States Court of Appeals for the Fifth Circuit found that the Bureau’s funding structure was an unconstitutional “abomination” of which the “Framers warned.” Its decision was a classic case of originalism gone awry — selective law office history which did not withstand the comprehensive historical record presented in further briefing to the Supreme Court and scholarship such as my forthcoming Virginia Law Review Article, The Founders’ Purse.  Had the Fifth Circuit invited further historical briefing on Appropriations Clause challenges (issues that the parties likely regarded as throwaway arguments for much of the litigation), one wonders if the Court of Appeals would have corrected its own mistakes without a trip to the Supreme Court. Even well-intentioned judges can go very far astray if they pluck select evidence from the historical record and forego a more comprehensive analysis. The time-intensive historical inquiries demanded by originalism pose challenges for district and court of appeals judges with many cases to decide.  It seems, however, that lawyers and historians could step up to offer enhanced historical analyses in these cases. In Community Financial Services, such enhanced historical analysis did not occur until the case reached the Supreme Court.

At the Supreme Court, additional historical briefing and a brilliant oral argument by Solicitor General Elizabeth Prelogar clarified the inherent constitutionality of the Bureau’s funding structure. Seven Justices found that the text and history of the Appropriations Clause favored the Bureau. Justice Thomas’s majority opinion focused on the original public meaning of the Appropriations Clause. Concurring opinions by Justices Kagan and Jackson aligned with this result while offering important qualifications on the use of text and history. Justice Alito’s dissent (which was joined by Justice Gorsuch) reached the exact opposite result and would have affirmed the Fifth Circuit’s decision. His conclusion rested on an exceptionally narrow analysis of history and tradition.

Text. The language of Article I, Section 9, clause 7 is simple: “No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”  Justice Thomas’s majority opinion focused on the original public meaning of the term “appropriation” and drew from Founding-era dictionary definitions of this term. Slip op. at 7.  He concluded that, in “ordinary usage,” an appropriation imposed fairly simple requirements: it demanded only “a law authorizing the expenditure of particular funds for specified ends.” Id. Justice Thomas’s approach emphasized public meaning and did not incorporate additional, corroborating evidence such as Alexander Hamilton’s observation that appropriations laws must ascertain the “purpose” and the “fund” for an expenditure. See The Founders’ Purse at 18.

In his dissent, Justice Alito also focused on the term “appropriation.”  He chided the majority for “consulting a few old dictionaries” to determine the meaning of “a term of art” whose meaning ought to be “interpreted in light of legal tradition and . . . centuries of practice.” Slip op. at 6-7 (Alito, J. dissenting) (cleaned up). According to Justice Alito, collapsing text into a legal and traditional understanding of appropriations “demand[ed]” heightened “legislative control over the source and disposition of the money used to finance” the Bureau’s operations.  Id. at 17.  As the majority noted, however, Justice Alito did not translate this understanding into a competing definition of the word “appropriation.”  Slip op. at 19.

Further, both Justice Thomas’s and Justice Alito’s initial focus on the meaning of the term “appropriation” detracted from other significant textual evidence of temporal limits on spending.  When the Framers wanted to impose a time limit on spending they did so expressly, such as the two-year time limit for army appropriations in Article I, Section 8, clause 12. The lack of similar language in Article I, Section 9, Clause 7’s Appropriations Clause strongly suggests that there was no time limit for general appropriations.  Justice Thomas emphasized this point only in rebuttal, and Justice Alito did not address it.

Perhaps because of these divergent analyses of a relatively simple clause, Justice Jackson’s concurrence emphasized the proper role of judges in constitutional interpretation. As she noted, “[w]hen the Constitution’s text does not provide a limit to a coordinate branch’s power, we should not lightly assume that Article III implicitly directs the Judiciary to find one.” Slip op. at 1 (Jackson, J., concurring).  While Justice Jackson’s concerns about courts finding “unstated limits in the Constitution’s text” and “undercut[ing] considered judgements of a coordinate branch” (id. at 3) were easy for the majority to avoid here, they will be important in future cases.  In the Court’s upcoming decisions in SEC v. Jarkesy and Trump v. United States, litigants have also asked the Court to find presidential removal powers and immunities that lack an explicit basis in the Constitution’s text.  Justice Jackson’s concurrence reiterates the importance of judicial modesty when deciding these separation-of-powers issues.  The removal issues in Jarkesy may tee up an additional set of related interpretive concerns – whether judges who emphasize unrepresentative statements from Framers like James Madison have erroneously read removal powers into Article II. See Jed Handelsman Shugerman, The Indecisions of 1789: Inconstant Originalism and Strategic Ambiguity, 171 U. PA. L. REV. 753 (2023); Lorianne Updike Toler, Un-fathering Executive Removal, 57 CONN. L. REV. (forthcoming 2025); Brief Amicus Curiae of Jed H. Shugerman, SEC v. Jarkesy (2023) (No. 22-859). (For additional historical perspectives on Jarkesy see Brief Amicus Curiae of Professor Ilan Wurman, SEC v. Jarkesy (2023) (No. 22-859); Brief Amici Curiae of Constitutional Originalists Edwin Meese III, Steven G. Calabresi, and Gary S. Lawson.)

History. Justice Thomas’s majority opinion set forth a lengthy Founding-era history that the Fifth Circuit missed. He began with pre-constitutional history in England, the colonies, and the states and concluded that “early legislative bodies exercised a wide range of discretion” whether or not to impose temporal limits or specific parameters on spending. Slip op. at 8-12; see generally Josh Chafetz, Congress’s Constitution: Legislative Authority and the Separation of Powers (2017). Another important body of evidence missed by the Fifth Circuit involved post-ratification spending laws that operated outside of annual appropriations.  As I note in The Founders’ Purse (pp. 31-36), one of the most generous early spending laws granted the Sinking Fund Commission indefinite authorization to self-direct spending from an initial sum that in today’s terms would exceed $400 billion.  Many other laws afforded field officers standing, self-directed funding based on fees for their services.  Id. at 36-44. Justice Thomas relied on some of these post-ratification practices including statutes in which early congresses authorized expenditures of “sums not exceeding” capped amounts and extended pre-constitutional practices of funding customs and postal officers through indefinite and independently determined fees. Slip op. at 12-15; see generally Nicholas Parrillo, Against the Profit Motive: The Salary Revolution in American Government 1780–1940 (2013).   He found that “early appropriations displayed significant variety in their structure,” and that the “Bureau’s funding mechanism fits comfortably within the First Congress’s appropriations practice.” Slip op. at 15.

Justice Alito’s dissent relied on largely the same history to reach the opposite conclusion.  He found that key historical funding practices, such as fee-based funding for customs officers, were not sufficiently analogous to the Bureau’s funding structure.  For example, Justice Alito noted that customs officers had to return excess funding while the Bureau could retain unspent funds. Slip op. at 20 (Alito, J., dissenting). But he did not explain why this distinction crossed a constitutional line. His description of more recent precedent suffered from the same flaw.  When describing the Federal Reserve Board as “a unique institution with a unique historical background” (id. at n. 16), Justice Alito never clarified a constitutional sense in which the Bureau’s funding differed from the near-identical funding structure for the Fed.

The majority criticized Justice Alito’s dissent for adopting a selective historical approach.  “The dissent [did] not meaningfully grapple with the many parliamentary appropriations laws that preserved a broad range of fiscal discretion for the King,” including “’sums not exceeding’ appropriations.”  Slip op. at 20 (cleaned up).  While the dissent “engage[d]” with post-ratification history, the majority found it “unclear why” the “differences” Justice Alito identified would “matter under the dissent’s theory.” Id. at 21.  One wonders whether Justice Alito’s objections to the Bureau’s “novel,” “unprecedented,” and “never before seen” funding structure (slip op. at 1, 3, 22 (Alito, J., dissenting)) are so strong that they exceed Bruen’s originalist requirement that the government supply “a well-established and representative historical analogue” but “not a historical twin.”  New York State Rifle & Pistol Ass’n v. Bruen, 142 S.  Ct. 2111, 2133 (2022).

As Professor Leah Litman has aptly explained, anti-novelty arguments of the sort made by Justice Alito can be quite problematic when assessing the constitutionality of legislatively established structures.  “[G]iven the sheer number of policies that [Congress] could conceivably pursue, Congress may not have tried out all forms of constitutionally permissible regulation.” Leah M. Litman, Debunking Antinovelty, 66 DUKE L.J. 1407, 1444 (2017). And yet Justice Alito seemed to expect this type of legislative precedent when he demanded that the Bureau show a precise historical analogue for its funding structure.  While Professor Litman did not offer an originalist analysis, her points align with prominent originalists’ related concerns about reducing constitutional meaning to a narrow and potentially unrepresentative or factual erroneous subset of original applications or “constitutional references.” See Lawrence B. Solum, Original Public Meaning, 2023 MICH. STATE L. REV. 807, 841-43; Christopher R. Green, Originalism and the Sense-Reference Distinction, 50 ST. LOUIS U. L. J. 555, 591 (2006). Justice Alito seemed to offer an even more fraught variant of an original applications problem — he suggested that a funding structure must have a preceding, original identical application (and perhaps one that is grounded in centuries of practice) before it can be considered constitutional.  Justice Alito’s apparent requirement is novel, narrow, and has so little to do with constitutional meaning that it should not be considered originalist.

Justice Kagan’s concurrence offered a far more accommodative approach to history and was joined by Justices Sotomayor, Kavanaugh, and Barrett.  Justice Kagan agreed with the majority that the Bureau’s funding scheme “would have fit right in” during the late-18th century. Slip. Op. at 1 (Kagan, J., concurring).  In addition, she endorsed the consideration of an extended historical timeline and an “unbroken congressional practice” showing significant variety in appropriations practices that continued “for more than  two centuries.”  Id. at 5.   She further emphasized the need to ease up on the level of specificity required of historical evidence. As Justice Kagan pointed out, “[w]hether or not the CFPB’s mechanism has an exact replica, its essentials are nothing new.”  Id.  In contrast to Justice Alito’s strict anti-novelty test, Justice Kagan’s more general approach makes it easier for judges to ground modern regulatory structures in history.  The Justices’ differing approaches to the use of history will likely loom large in upcoming decisions ranging from the Second Amendment issues presented by United States v. Rahimi to separation-of-powers concerns presented by SEC v. Jarkesy.

* * * * *

Once the Court had the benefit of a more complete historical record, Consumer Financial Protection Bureau v. Community Financial Services Ass’n became a relatively easy decision for Justices across the ideological spectrum.  While seven Justices signed on to Justice Thomas’s analysis of original public meaning, a closer examination of the Justices’ opinions reveals methodological pluralism even within the relatively narrow originalist modalities of text and history.  Only time will tell how the Justices will sort out their underlying methodological concerns in future separation-of-powers cases.  Consumer Financial Protection Bureau v. Community Financial Services Ass’n has set the stage for the Court to decide what may well become some of the most important decisions ever in the areas of administrative law and separation of powers.

Continue ReadingSaving the Consumer Financial Protection Bureau (and the Constitution) from the Courts

Will Water Recycling Come to the Midwest?

Existing drinking water sources are under increasing strain due to overuse, climate change and other threats. Water recycling, also known as water reuse, may play a significant role in creating the sustainable cities of the future. Millions of people around the country are already being asked to drink recycled water, either indirectly (through a process in which treated wastewater is discharged to an environmental buffer such as groundwater or surface water and is later taken into the water distribution system) or even directly (when treated wastewater is immediately discharged into the water distribution system without an environmental buffer). At an April 10 conference sponsored by the Law School’s Water Law and Policy Initiative, several experts discussed the history and future of such technologies, and whether they are likely to emerge in Wisconsin or remain limited to the more arid parts of the county.

Noted author and journalist Peter Annin opened the event with a summary of his new book, Purified: How Recycled Sewage is Transforming Our Water. Annin described a significant water crisis facing many parts of the country, leading also to trouble in the production of food and energy, sectors long intertwined with water. Annin cited only two realistic options for “new” water supply­­­­—desalination and water reuse. Reuse is the far more sustainable option, he said.

Annin covered numerous historical case studies involving efforts communities have made to introduce recycled water into their water supply portfolios. Some were successful (Orange County), others less so (San Diego, at least at first). But Annin explained that careful examination of the United States Drought Monitor reveals that water shortages are not only a problem in the arid West. As a result, water reuse projects have been implemented or at least attempted in the more humid parts of the country too—in Norfolk, Virginia and Tampa, Florida, among other places.

In reviewing the lessons learned from all these efforts, Annin identified several keys to successful implementation of water recycling projects, including effective strategies for communicating with the public, rigorous monitoring of the water produced, and reliable technologies to ensure public safety.

In Wisconsin, at least so far, such technologies are more a matter of interest than necessity. “Nobody recycles water because it’s cool,” said Theera Ratarasarn, a panelist reacting to Annin’s presentation who is Chief of the Public Water Engineering Section for the Drinking Water and Groundwater Program at the Wisconsin Department of Natural Resources. Instead, they do it because they have no other choice; it is a last resort.  In Wisconsin, Ratarasarn said, “everywhere you look, you find water.”  Thus, he said, it isn’t necessary to resort to water recycling. In fact, it would run afoul of a Wisconsin legal requirement that the public drinking water supply come from “the best available source practicable.” As a result, Wisconsin regulators are more concerned about other pressing issues like PFAS, lead, and nitrate pollution.

Another panelist, Rachel Havrelock, who is Professor of English and director of The Freshwater Lab at the University of Illinois at Chicago, observed that most people are accustomed to “single-use water,” and this view drives our discomfort with water recycling. In fact, she said, water recycling more closely emulates nature and the multiple-use water cycle. In most places, she said, there is already de facto water reuse, with treated wastewater returned to surface water and soon thereafter reclaimed for drinking water treatment a short distance away. Havrelock’s team has proposed a separate water reuse-driven supply for agricultural and industrial purposes in Chicago and the surrounding areas. “We don’t need to drink recycled water here,” she said, but reuse can still make a big difference by reducing the load on the portion of the water supply that will be used for drinking. She cited a “groundwater emergency” in many parts of the Midwest. “Water reuse is part of climate change adaptation,” she concluded, and the “legal world is absolutely vital at this juncture” to regulate the practice.

Michael Duczynski, a research civil engineer with the United States Army Engineer Research and Development Center, confirmed that from the military perspective there are plenty of avenues for non-potable reuse. The military, he said, has large critical infrastructure needs at many of its installations around the world, including everything from cooling towers to data centers. The resilience of those installations—and of civilian communities— can be increased through water reuse options, he said. Duczynski described a new project through which the military is discerning the regulatory requirements for a spectrum of potential reuse applications spanning different levels of treatment, different end uses, and different jurisdictions. Employing some of these projects could save millions of gallons of water, he predicted.

Video of the full program is available here (click the “watch now” button).

Continue ReadingWill Water Recycling Come to the Midwest?