As a snowstorm hit Washington, DC, the justices convened to hear oral arguments in four cases. For background on the cases, check out my preview.
Tuesday
On Tuesday, the Court heard Macquarie Infrastructure Corp. v. Moab Partners, LP. Check out this 20-minute podcast from the Federalist Society if you’re interested.
The second case of the day was DeVillier v. Texas, which asks whether the Fifth Amendment’s Takings Clause provides a judicially enforceable right to just compensation in the absence of a statute creating a cause of action. Here are the highlights from the oral argument.
A few justices wrestled with the historical record and the fact that there was, essentially, no recourse for a taking in federal court until the late 19th Century. Justice Amy Coney Barrett pointed to the “mountain of historical evidence” cutting against the argument that the Fifth Amendment itself provides a cause of action for a taking. As Justice Barrett put it:
Robert McNamara, an attorney with the Institute for Justice representing DeVillier and other property owners, replied, “I don't think that mountain does quite the work that Texas needs it to, Your Honor.” The “modern conception of cause of action” would have been foreign at the time the Fifth Amendment was ratified in 1791. . . .
Several justices expressed concerns about the fact that Texas appears to be playing procedural games. (In brief, the challengers filed inverse condemnation actions in state court; Texas removed the cases to federal court and promptly moved to dismiss, saying the challengers couldn’t sue the state in federal court.) Check out this exchange between Justice Sonia Sotomayor and Aaron Nielson, the new Solicitor General of Texas:
Heaven forbid an aggrieved party seek review in the highest Court in the land!
Chief Justice John Roberts also had questions about this (and gave a nod to Knick v. Township of Scott, Pennsylvania, which my Pacific Legal Foundation colleagues litigated and won!).
Chief Justice Roberts concluded, "Well, isn't that a Catch-22 . . . I mean, you say they have to proceed in state court. They can't proceed in federal court. And as soon as they do, you remove it to federal court under 1983, where you say they can't proceed?"
Justice Barrett posed a hypothetical question to Nielson: What if the state took property, refused to pay just compensation, and said there’s neither a cause of action to sue in state court nor a way to obtain a private bill by the legislature. What is the property owner supposed to do then, in the absence of access to federal courts?
Nielsen explained that the property owner could seek recourse from Congress pursuant to Section 5 of the Fourteenth Amendment. The Takings Clause was incorporated against the states via the Fourteenth Amendment’s Due Process Clause, and if you don’t have a pocket Constitution handy, Section 5 authorizes Congress “to enforce, by appropriate legislation, the provisions of [the Fourteenth Amendment].”
When McNamara returned for his rebuttal, he pulled on this Catch-22 thread:
Wednesday
On Wednesday, the justices heard back to back oral arguments in Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo. In these cases, commercial fishermen have challenged a National Marine Fisheries Service rule that would require them to pay the salary of a federal observer riding on their boats to ensure they comply with federal law. Lower courts held the Service was entitled to deference concerning its interpretation of a federal law it claims gives it the authority to mandate industry-funded monitors. The fishermen have asked the Court to overturn the Chevron deference doctrine, which requires judges to defer to an agency’s interpretation of the law it is charged with carrying out if the law is ambiguous.
Anastasia texted me to say, “FOUR HOURS IS TOO MUCH CHEVRON.” But I respectfully dissent. Nevertheless, I’ve saved you the time of reading through nearly four hours’ worth of transcripts. Here are the highlights.
Relentless was argued first, presumably so that Justice Ketanji Brown Jackson could participate and then leave the bench before the rest of her colleagues heard arguments in Loper Bright (from which she recused herself). Representing the Relentless fishermen was Roman Martinez, a partner at Latham & Watkins who served as a law clerk to then-Judge Brett Kavanaugh and Chief Justice Roberts earlier in his career.
There were a lot of questions about whether courts could simply use Skidmore deference instead of Chevron deference. Skidmore predated Chevron by several decades, and instead of mandating judges side with the government when certain conditions are met, it essentially instructs judges to give due weight to an agency’s expertise.
The “power to persuade, not the power to control,” as Justice Kavanaugh observed.
Justice Kagan came armed with hypotheticals. Should courts or agencies decide if a new product is a dietary supplement or a drug? What about (citing the actual dispute in Chevron v. NRDC) whether a “stationary source” in the Clean Air Act refers to whole plants or each pollution-emitting device within the plant? In her view, when Congress has given an agency discretion to define terms, fill gaps, and the like, courts have no business getting involved in such policy decisions. She also posed a hypothetical about artificial intelligence legislation:
Justice Gorsuch hammered home the point that agencies can (and often do!) change their interpretations, which cuts against the purported stability provided by Chevron. He asked, "When a judge says here's the law, it's settled, we're done, right? It can be appealed, but at the end of the day, if the Supreme Court of the United States upholds that interpretation, we're finished. Whereas, under the Chevron approach, are we finished? . . . What happens?"
When it was Solicitor General Elizabeth Prelogar’s turn, Chief Justice Roberts pointed out that the Court hasn’t relied on Chevron to resolve a case in several years. “[H]ave we overruled it in practice even if we've let the -- had to leave the lower courts to continue to grapple with it?”
Justice Gorsuch wanted to know how the government defines “ambiguity.”
“[I]f you think that they are too readily finding ambiguity,” Prelogar replied, the Court could “issue a course correction,” as it did in Kisor v. Wilkie for a related doctrine known as Auer deference. An exasperated Justice Gorsuch replied:
Returning to the point of stability in the law, Justice Kavanaugh said:
Prelogar responded that is “a small sliver of cases or circumstances. And in the mine run case involving agency regulations, agencies themselves build on those regulations as a foundation. There's no evidence that agencies are out there flip-flopping left and right or doing so on a whim.”
During his rebuttal, Martinez made a few points worth mentioning:
First, responding to the Solicitor General’s assertion that “the purpose of Chevron is to set the ground rules on how . . . the different branches of government should operate,” he says “I think the Constitution sets those ground rules. And the Constitution makes clear that the judicial power, the power to say what the law is, the power to interpret the law, rests with courts, not with agencies, and certainly not with Congress either.”
On ambiguity, Martinez argued, “Courts resolve ambiguities all the time. That's core to the interpretive function. And so there's no reason to think that just because Congress has accidentally left an ambiguity in a statute, that what it's really trying to do is have that ambiguity resolved by policy decisions made by an agency.”
Finally, he concluded, with this: “We would respectfully suggest that the solution here is to recognize that the fundamental problem is Chevron itself. Interpretive authority belongs to the courts.”
The oral argument in Loper Bright was much shorter. Perhaps the justices exhausted most of their questions in the first argument or maybe they were just ready for lunch.
Paul Clement, aka the GOAT of SCOTUS advocacy, argued on behalf of the Loper Bright fishermen. Justice Kagan asked about viewing Chevron as giving the tie to the agency, and she pointed out, "Chevron is about what Congress wants."
He replied, "So, Justice Kagan, if we're going to talk about what Congress wants, we probably should at least avert to the fact that we do have an amicus brief in this case from the House in its institutional capacity, and it doesn't want Chevron."
Clement explained that Chevron has not just affected agencies and courts. It also has had a negative impact on how Congress operates:
I’ll close with my favorite moment (well, two) of the week.
Roman Martinez got a little cheeky with the justices! In response to a question from Justice Kagan about the Clean Air Act dispute in Chevron v. NRDC, Martinez added, “We think that the decision in Chevron was -- reflected the best interpretation with much respect to Justice Gorsuch's mother's EPA. We think that that was the best interpretation.”
At another point in the argument, also in response to Justice Kagan, Martinez referenced “a very insightful article … that you wrote 20 years ago.”
And I would be remiss if I didn’t mention that Anastasia and the Cato Institute got a shout out from Paul Clement:
That’s it for this week. The justices will return early from their typical winter break to hear oral arguments on Thursday, February 8 in Trump v. Anderson. President Trump has asked the U.S. Supreme Court to reverse the Colorado Supreme Court’s decision barring him from the state’s ballot. The Colorado court held Trump is ineligible for office under Section 3 of the 14th Amendment and thus disqualified from appearing on the ballot. The Colorado primary will take place on March 5, so expect a decision not long after the argument.