Eugene Volokh's Blog, page 2580

Texas Wins Clean Air Act Fight with EPA

(Jonathan H. Adler)

The U.S. Court of Appeals for the Fifth Circuit sternly rebuked the U.S. Environmental Protection Agency for overstepping its statutory authority in rejecting three air pollution control regulations adopted by the state of Texas for their alleged non-conformity with applicable Clean Air Act requirements.  In Luminant Generation Company, LLC v. EPA, the Fifth Circuit the EPA had "no legal basis" for its decision and remanded the decision back to the agency.

At issue in the case were three Texas regulations governing permit requirements that were a part of Texas' State Implementation Plan (SIP) under the federal Clean Air Act.  According to the statute, the EPA is to decide whether or not relevant state regulations comply with SIP requirements within 18 months of their submission.  In this case, however, the EPA waited years before claiming the three regulatory provisions were insufficient.  More significantly, the EPA "did not identify any provision of the CAA or its implementing regulations that Texas's program violated."

Before the Fifth Circuit, the EPA confessed error and conceded that it had been arbitrary and capricious with regard to two of the contested regulations, but it still sought to defend its decision with respect to the third. No dice.  The Fifth Circuit found the EPA had filed to identify any basis for rejecting the regulation under federal law.  The Fifth Circuit's decision concludes:

This chapter in regulatory history has lasted almost two decades. Texas submitted its first two standard permits for PCPs to the EPA for approval in 1994. Texas made various amendments to these permits over the years, and promptly submitted each amendment to the EPA. The most recently amended version is the PCP Standard Permit at issue in this case. Despite an eighteen month statutory deadline, the EPA did not take action on any of these submissions until September 15, 2010. At that late date, the EPA disapproved the PCP Standard Permit—submitted four and a half years earlier—based on its purported nonconformity with three extra-statutory standards that the EPA created out of whole cloth. Moreover, the EPA did this in the context of a cooperative federalism regime that affords sweeping discretion to the states to develop implementation plans and assigns to the EPA the narrow task of ensuring that a state plan meets the minimum requirements of the Act. The EPA applied these unauthorized standards to disapprove of a state program for projects that reduce air pollution and that, under the Act's plain terms, is subject to only the most minimal regulation.

Because the EPA waited until more than three years after the statutory deadline to act on Texas's submission, we order the EPA to reconsider it expeditiously. On remand, the EPA must limit its review of Texas's regulations to ensuring that they meet the minimal CAA requirements that govern SIP revisions to minor NSR, as set forth in 42 U.S.C. § 7410(a)(2)(C) and § 7410(l). If Texas's regulations satisfy those basic requirements, the EPA must approve them, as § 7410(k)(3) requires. That is the full extent of the EPA's authority in the SIP-approval process because that is all the authority that the CAA confers. See La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 374 (1986) ("[A]n agency literally has no power to act . . . unless and until Congress confers power upon it.").

The opinion was written by Judge Elrod and joined by Judge Barksdale.  Judge Garza concurredin the judgment only without opinion.

Prof. Rick Sander Guest-Blogging

(Eugene Volokh)

I'm delighted to report that my colleague Rick Sander will be guest-blogging in the coming days, starting tomorrow, about recent developments related to race-based affirmative action. Among other recent work, Rick co-authored a widely discussed amicus brief urging the U.S. Supreme Court to hear Fisher v. University of Texas; the Court has since granted cert, and will revisit the issue of higher education preferences for the first time since Grutter and Gratz.

Rick has also been the lead plaintiff in a lawsuit seeking a database from the State Bar of California; experts on both sides of the affirmative action debate agree that the California Bar data would provide uniquely powerful tests of Rick's "mismatch" hypothesis. He and his co-plaintiffs won before the California Court of Appeals last summer; a petition for review in that case is now pending before the California Supreme Court. I much look forward to Rick's posts.

Texas Ban on Photographing People Without Their Consent "With Intent to Arouse or Gratify the Sexual Desire of Any Person"

(Eugene Volokh)

Texas Penal Code § 21.15(b)(1) makes it a crime to photograph someone "without the person's consent" and "with intent to arouse or gratify the sexual desire of any person." (A separate provision applies to photographing people in bathrooms or private dressing rooms.) In Ex parte Nyabwa (Tex. Ct. App. Dec. 13, 2011), a Texas appellate court upheld the statute reasoning that "[p]hotography" — apparently including the taking of photographs — "is a form of speech normally protected by the First Amendment," but

The State argues that the statute is not a regulation of speech at all, but instead is a regulation of the photographer's or videographer's intent. Discussing a similar First-Amendment issue, the Court of Criminal Appeals concluded that a telephone-harassment statute does not implicate the free speech guarantee — even though the conduct may include spoken words — where the statute focuses on the actor's intent to inflict emotional distress and not to legitimately communicate ideas, opinions or information. Scott, 322 S.W.3d at 669–70. In much the same way, Texas Penal Code section 21.15(b) regulates a person's intent in creating a visual record and not the contents of the record itself. We thus conclude that the statute is not a regulation of speech and does not violate the First Amendment.

Today, the Texas Court of Criminal Appeals refused to review the case (though it did withdraw the lower court's attempt to revise the opinion, because those revisions were seen as untimely). Two judges would have taken the case, and one wrote a dissent from the denial of review, arguing:

This statute is virtually unbounded in its potential application. The photographing of anyone, anywhere, and under any circumstances can be an offense so long as the photograph was taken without consent and the actor harbored the requisite sexual mental state. Photography has been recognized as a form of expression protected by the First Amendment. While conceding that, the court of appeals nevertheless concluded that the statute "regulates a person's intent in creating a visual record and not the contents of the record itself."

But that conclusion does not necessarily exempt the statute from the First Amendment's protections. The Supreme Court has recognized that the First Amendment includes, as a component of freedom of expression, the protection of "freedom of thought," including the freedom to think sexual thoughts. It is not enough to say that the statute is directed only at intent, if the intent consists of thought that is protected by the First Amendment. There are limits to the freedom of thought protected by the First Amendment: the First Amendment does not, for example, protect the right to privately possess child pornography. But in the statute before us, the person photographed could be a fully-clothed adult walking down a public street. The breadth of this statute is breathtaking, and the type of intent that it regulates is not inherently exempt from First Amendment protection.

That sounds right to me. For some thoughts about the dangers of purpose tests in First Amendment law, see pp. 271-284 of this article.

Crediting/Blaming the VC for the Possible Defeat of the Individual Mandate

(Ilya Somin)

Adam Teicholz of the Atlantic claims that the Volokh Conspiracy deserves much of the credit or blame for the possible upcoming defeat of the individual mandate in the Supreme Court.:

Blogs — particularly a blog of big legal ideas called Volokh Conspiracy — have been central to shifting the conversation about the mandate challenges. At Volokh, Barnett and other libertarian academics have been debating and refining their arguments against the mandate since before the ACA was signed. At the beginning, law professor Jonathan Adler fleshed out the approach that came to typify the elite conservative response for the first months of the public debate: the Founders never intended for the Constitution to permit such broad federal power, but given New Deal-era precedent, the mandate, if it became law, would pass muster. Things changed on Volokh around the time that it became clear that an insurance mandate would be part of whichever health care reform package passed into law.

One congressional floor speech seemed to mark a tonal turning point for Volokh, the moment its writers realized their power to shape debate. On December 22, 2009, Democratic Senator Max Baucus quoted the post by Jonathan Adler mentioned above. Adler clearly resented that Baucus had taken his lawyerly evaluation of the case, stripped out the interesting part (that a pure reading of the Constitution weighs against the mandate, even if precedent weighs in its favor), and used it in a political context — and he responded on Volokh directly to the senator. If the world was going to use Volokh as a political tool, then he could, too. There followed months of posts by various Volokh bloggers, alongside increasingly sophisticated legal arguments, about just how reasonable, how comfortably within bounds the legal arguments against the mandate were. By the following year, a district court judge had cited Barnett in his opinion striking down health care reform, and Barnett himself had left behind his March 2010 conclusion that the Supreme Court would need to risk its credibility in a politically charged case, Bush v. Gore-style, to overturn the mandate.

I am flattered by this estimate of our influence. But there are a number of flaws in Teicholz' account. First and foremost, it is simply not true that we all thought that the individual mandate would pass muster under current precedent until the exchange between Jonathan Adler and Senator Baucus led us to "realize [our] power to shape debate."

We knew we had that "power" long before the Adler-Baucus debate. Several of us had influenced public debate through blogging previously. Eugene Volokh has had a lot of influence on public debate over free speech, gun rights, and other issues. Todd Zywicki's excellent blogging about bankruptcy issues has been extremely influential for years. My own blogging about post-Kelo eminent domain reform and property rights has impacted debate over those issues, and led to invitations to testify before the U.S. Senate Judiciary Committee and other government bodies.

Randy Barnett believed that the individual mandate could not be justified under current precedent all along, which I think was also true of David Kopel. As for me, I always believed that the mandate was unconstitutional, but initially thought that it could be justified under the Supreme Court's decision in Gonzales v. Raich (which I have long argued was wrongly decided). What changed my mind was a close re-reading of Raich with the individual mandate case specifically in mind. I obviously can't speak for Jonathan Adler. But I suspect that the evolution of his views was similar.

Randy and I also initially believed that striking down the mandate would be more politically difficult for the Supreme Court than is likely actually to be the case. That's because we (or at least I) failed to foresee that the mandate and the health care bill as a whole would remain so unpopular for so long. I'd like to think that some of that unpopularity was the result of our efforts. But the lion's share was surely caused by other factors. If we really had the power to swing public opinion massively, I would long since have persuaded the public to oppose the War on Drugs and support legalization of organ sales.

Where we did have some influence is in debunking the myth that the constitutionality of the mandate was a no-brainer backed by an overwhelming consensus of expert opinion. But we could not have done that were we not 1) recognized academic experts on these issues ourselves, and 2) able to point to other well-known experts who also believed the mandate to be unconstitutional, many of them not VC-ers. The latter include such prominent constitutional law scholars as Richard Epstein, Steve Calabresi, Steve Presser, and Gary Lawson.

Randy, of course, played an especially vital role by developing crucial legal arguments that had a huge influence. But those arguments would have been of little avail if they could not persuade judges and other experts, as well as lay public opinion. The world is full of laws that are widely disliked, but have no chance of getting invalidated by a court because the arguments against them have no credibility with legal professionals.

Teichholz also errs in thinking that our arguments against the mandate fell by the wayside when the case reached the Supreme Court and the anti-mandate lawyers started using "better-trodden" arguments – implying that our points were mainly for the purpose of influencing the lay public. In reality, Tuesday's oral argument overwhelmingly focused on the point that I and others here have been pushing for a long time: that the government's rationales for the mandate lacks any logical limitations, and could therefore justify virtually any mandate of any kind. Several of the justices also suggested that the mandate is constitutionally dubious because it does not regulate any preexisting economic activity – the main argument that Randy has been emphasizing since 2009. Some of Justice Scalia's questions on the Necessary and Proper Clause almost exactly mirrored the central point of an amicus brief I wrote on behalf of the Washington Legal Foundation and a group of constitutional law scholars (though I reiterate that I have no way of knowing whether he got the idea from my brief).

Finally, Teicholz writes as if it is somehow unusual for lawyers to be "waging this battle not only in the courtroom but in the court of public opinion," suggesting that Randy's dual role as lawyer and public advocate is particularly "unusual for an appellate lawyer." In reality, two-track strategies in important constitutional cases are far from new. The abolitionist movement arguably pioneered this kind of approach in the 1840s and 1850s when they challenged the Fugitive Slave Act and other pro-slavery laws. The NAACP pursued a similar strategy since the early 1900s, as have feminists, environmentalists, the gay rights movement, gun rights advocates, property rights supporters and many others. Randy's role is also far from "unusual" among lawyers involved in high-profile constitutional cases of this kind. As far back as the 1940s, Thurgood Marshall was both the lead appellate litigator for the cause of black civil rights and a major public spokesman for that cause. These historical precedents (many of them by left-wing movements) are what led me to suggest back in March 2010 that a similar strategy could work in this case.

What happened here is just one of many examples of conservatives and libertarians adapting strategies that were mostly pioneered by the political left. Such borrowing from the left is at the heart of much of what conservative and libertarian activists for legal change have achieved over the last thirty years. Ironically, some on the left don't recognize the influence of their own tactics when they are adopted by adversaries. Perhaps they should recall that imitation is the sincerest form of flattery.

SG Verrilli Relies on the Constitution's Preamble

(David Bernstein)

In his closing remarks at today's oral argument over the Medicaid expansion, SG Verrilli  urged the Court, nothwithstanding concerns about limiting the federal government, to uphold not just the Medicaid provision but the entire ACA.  His rationale was in part that the people's democratically elected representatives, after much thought, decided that the ACA was the best way to deal with America's health care problems.  But he also referred, twice, to the fact that the Medicaid provision and the ACA more generally are important to "secure the blessings of liberty" for those individuals who would otherwise face health care crises.

I find this an odd strategic choice for Verrilli to have made in his very last remarks to the Court.  It's not uncommon for liberals to refer to the Constitution's preamble–We the People, in order to form a more perfect Union, establish Justice, ensure domestic tranquility, provide for the common defense, promote the General Welfare and secure the Blessings of Liberty–as a counterweight to the notion that the federal government's powers are significantly limited by their enumeration.  But I've never heard of a conservative buying into the idea that the goals set forth in the preamble have any particular weight in constitutional interpretation, at least not when set in opposition to specific constitutional provisions.  Indeed, if anything, I think a typical reaction of Federalist Society types is that reliance on the preamble of the last refuge of those who don't have a serious constitutional argument to make; "you mean you're not an originalist or a textualist and you want us to engage in 'living constitutionalism' with regard to all sorts of very specific and substantive constitutional provisions, but then you want us to take the preamble seriously?"

This strikes me as part of a pattern I detect throughout this litigation and especially in the SG's oral argument: the government's lawyers seem to have no idea how conservative jurists typically think about  the Constitution.  Instead, they make arguments that would get almost unanimous nods of approval in the Harvard (or Columbia, the SG's alma mater) Law School faculty lounge, but are not remotely persuasive to the other side.

Verrilli, after all, had months to come up with a succinct, plausible, limiting principle in defense of the individual mandate.  He should have been able to repeat this backwards, forwards, upside down and in his sleep. Yet he could barely explain himself yesterday, when given the opportunity by three different Justices.  Given his reputation as one of the country's top appellate lawyers, a tempting explanation is that he couldn't believe that anyone except perhaps Thomas was really concerned about that issue.

Did the Volokh Conspiracy Kill the Individual Mandate?

(Orin Kerr)

Over at The Atlantic, Adam Teicholz has an interesting essay on the role of blogs in the shaping of the debate over the individual mandate. It includes the following remarkable passage about this blog:

Blogs — particularly a blog of big legal ideas called Volokh Conspiracy — have been central to shifting the conversation about the mandate challenges. At Volokh, Barnett and other libertarian academics have been debating and refining their arguments against the mandate since before the ACA was signed. At the beginning, law professor Jonathan Adler fleshed out the approach that came to typify the elite conservative response for the first months of the public debate: the Founders never intended for the Constitution to permit such broad federal power, but given New Deal-era precedent, the mandate, if it became law, would pass muster. Things changed on Volokh around the time that it became clear that an insurance mandate would be part of whichever health care reform package passed into law.

One congressional floor speech seemed to mark a tonal turning point for Volokh, the moment its writers realized their power to shape debate. On December 22, 2009, Democratic Senator Max Baucus quoted the post by Jonathan Adler mentioned above. Adler clearly resented that Baucus had taken his lawyerly evaluation of the case, stripped out the interesting part (that a pure reading of the Constitution weighs against the mandate, even if precedent weighs in its favor), and used it in a political context — and he responded on Volokh directly to the senator. If the world was going to use Volokh as a political tool, then he could, too. There followed months of posts by various Volokh bloggers, alongside increasingly sophisticated legal arguments, about just how reasonable, how comfortably within bounds the legal arguments against the mandate were. By the following year, a district court judge had cited Barnett in his opinion striking down health care reform, and Barnett himself had left behind his March 2010 conclusion that the Supreme Court would need to risk its credibility in a politically charged case, Bush v. Gore-style, to overturn the mandate. The answer had become clear to him under existing precedent; he now felt certain that the mandate was a goner.

Barnett says he blogs on Volokh as an "opportunity to refine legal arguments in response to pushback." He agreed to attend a Washington University panel on "Bloggership," the confluence of scholarship and blogging, but he played Pinky ("Blogging…can contribute constructively to one's scholarship…but it would be a mistake to confuse" them) to Volokh-founder Eugene Volokh's Brain ("Maybe, when I'm in the middle of writing a law review article, I should ask myself: Shouldn't I be spending this time blogging instead?"). Yet Barnett also acknowledges in conversation that "justices, law clerks, lawyers, legal writers" are "a part of the legal culture and I'm part of the legal culture." Trying to convince that set of people that your arguments are "on the wall," he continued, is just "standard law practice."

And two former Supreme Court clerks confirmed that online ideas and moods "definitely reach clerks, and can inform thinking of the bench memos," the documents clerks write to prepare their justices for oral argument and opinion-writing. And blogs like Volokh certainly have increasing influence over the traditional media. Liptak of the Times said that he takes note of what legal blogs have to say about cases he's covering.

I think this vastly overstates the influence of the blog. But it seemed worth posting.

Blasphemy Arrest in Kuwait, for a Twitter Message About Mohammed

(Eugene Volokh)

Reuters reports:

Kuwaiti authorities arrested a man late on Tuesday for insulting the Prophet Mohammad via his Twitter account, the Interior Ministry said …. The man, whose name was not disclosed, defamed the Islamic faith and slandered the Prophet Mohammad, his companions and his wife, the ministry said in a statement issued on state-run news agency KUNA….

The ministry "regretted the abusing of social networks by some individuals to offend basic Islamic and spiritual values, vowing to show zero tolerance in combating such serious offences," it said in the statement.

Thanks to Opher Banarie for the pointer.

"Police Looking into Death by Balzac"

(Eugene Volokh)

Here's the story, and a more interesting post about the story.

Democratic Congressman and Senators on Constitutional Authority for the ACA

(David Bernstein)

Most of us know that when then-Speaker Pelosi was asked where the Constitution gives Congress the power to enact an "individual mandate," she replied with a mocking "are you serious? Are you serious?"

Here are a few more pearls of constitutional wisdom from our elected representatives.

Rep. Conyers cited the "Good and Welfare Clause" as the source of Congress's authority [there is no such clause].

Rep. Stark responded, "the federal government can do most anything in this country."

Rep. Clyburn  replied, "There's nothing in the Constitution that says the federal government has anything to do with most of the stuff we do. How about [you] show me where in the Constitution it prohibits the federal government from doing this?"

Rep. Hare said "I don't worry about the Constitution on this, to be honest [...] It doesn't matter to me." When asked, "Where in the Constitution does it give you the authority …?" He replied, "I don't know."

Sen. Akaka said he "not aware" of which Constitutional provision authorizes the healthcare bill.

Sen. Leahy added, "We have plenty of authority. Are you saying there's no authority?"

Sen. Landrieu told a questioner, "I'll leave that up to the constitutional lawyers on our staff."

Something to keep in mind when someone argues that the Supreme Court should defer to the constitutional wisdom of its coequal branches.

Deep Trouble

(Eugene Volokh)

From Prude v. Clarke (7th Cir. Mar. 27, 2012):

We order the defendants to show cause within 14 days of the date of this order why they should not be sanctioned for contumacious conduct in this court. If they ignore this order to show cause like the last one, they will find themselves in deep trouble.

The contumacious conduct was that, "In addition to stonewalling the plaintiff and the district judge, the defendants" — county jail officials — failed to file a brief in this court and failed to respond to our order to show cause why they hadn't filed a brief." Thanks to How Appealing for the pointer.