Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Friends, come join us at Georgetown Law this Tuesday, March 7, for a symposium on Shielded: How the Police Became Untouchable, a timely new book by Joanna Schwartz. Click here for the details and to RSVP.
The newly enacted statute provides:
… "Adult cabaret entertainment" … [m]eans adult-oriented performances that are harmful to minors, as that term is defined in § 39-17-901, and that feature topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers; …
"Entertainer" means a person who provides: (A) Entertainment within an adult-oriented establishment, … or (B) A performance of actual or simulated specified sexual activities, including removal of articles of clothing or appearing unclothed, [both] regardless of whether a fee is charged or accepted for the performance …;
It is an offense for a person to perform adult cabaret entertainment:
(A) On public property; or
(B) In a location where the adult cabaret entertainment could be viewed by a person who is not an adult ….
To understand this, one has to read § 39-17-901, which provides:
An interesting decision Wednesday by N.Y. trial court judge Thomas Marcelle (Albany County), Hines v. Doe:
Doe lives in terrible discomfort caused by a host of ailments. In the last three years matters have gotten worse. As a result, Doe drinks every Sunday (but only on Sunday) to cope with his present dysphoria. One Sunday, Doe turned on a football game and consumed 60 proof blackberry brandy to deaden the pain. During the game, Doe's wife began screaming at the TV. The alcohol, the screaming and his afflictions overcame Doe, and he told his wife to shut up. Mrs. Doe stormed upstairs. Doe decided to leave the house, call an Uber and go visit a friend in northern New York. In short order Doe changed his mind. Tormented by his pain, Doe decided that death was better than life. To end his life, Doe walked into a cemetery, opened his jacket, laid down on the snowy ground waiting for hypothermia to take him.
After a few hours Mrs. Doe became gravely concerned about her husband, so she called the police. New York State Trooper Matthew Yankowski responded and conducted a search. Trooper Yankowski located Doe in the cemetery. There and then, under the auspices of MHL 9.41, the Trooper took Doe into custody and transported him to Albany Medical Center to be treated. At the hospital, Doe was visited and examined by a battery of psychiatrists. The next day Doe was released neither with a diagnosis of mental illness nor a prescription for medication.
Petitioner, under CPLR 6341, sought a temporary extreme risk protection order to retain possession of three shotguns and a long rifle that Doe had already surrendered to the State Police. The court granted the temporary order (CPLR 6342) and now must determine if petitioner has "prov[en], by clear and convincing evidence, that the respondent is likely to engage in conduct that would result in serious harm to himself." A likelihood of serious harm means "a substantial risk of physical harm to himself as manifested by threats of or attempts at suicide."
The case is complicated by the Second Amendment…. [Under Bruen], courts must search the historical record to determine if a categorical exception to the Second Amendment exists—without an exception, Doe's right to keep weapons may not be infringed.
Yesterday, the Fifth Circuit released an updated version of its opinion in U.S. v. Rahimi, which held that people can't be disarmed just based on a civil restraining order. The changes to the majority are comparatively minor, but Judge Ho used the release of the new opinion as an occasion to put out a substantially enlarged version of his concurrence, which I thought was worth passing along:
The right to keep and bear arms has long been recognized as a fundamental civil right. Blackstone saw it as an essential component of "'the natural right'" to "'self-preservation and defence.'"And the Supreme Court has repeatedly analogized the Second Amendment to other constitutional rights guaranteed to every American. See, e.g., Johnson v. Eisentrager (1950) (describing the First, Second, Fourth, Fifth, and Sixth Amendments as the "civil-rights Amendments"); Konigsberg v. State Bar of Cal. (1961) (comparing "the commands of the First Amendment" to "the equally unqualified command of the Second Amendment"); N.Y. State Rifle & Pistol Ass'n v. Bruen (2022) (quoting Konigsberg).
But lower courts have routinely ignored these principles, treating the Second Amendment as "a second-class right." So the Supreme Court has now commanded lower courts to be more forceful guardians of the right to keep and bear arms, by establishing a new framework for lower courts to apply under the Second Amendment.
"When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct." "The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation." "[T]his historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge. Like all analogical reasoning, determining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are 'relevantly similar.'"This framework "is neither a regulatory straightjacket nor a regulatory blank check." It requires the government to "identify a well-established and representative historical analogue, not a historical twin."
Our court's decision today dutifully applies Bruen, and I join it in full. I write separately to explain how respect for the Second Amendment is entirely compatible with respect for our profound societal interest in protecting citizens from violent criminals. Our Founders firmly believed in both the fundamental right to keep and bear arms and the fundamental role of government in combating violent crime.
[I.] "[T]he right to keep and bear arms … has controversial public safety implications." But it's hardly "the only constitutional right" that does. To the contrary, "[a]ll of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category."
From Bostic v. Daily Dot, LLC, decided Wednesday by Judge Robert Pitman (W.D. Tex.):
This case revolves around an article … published on February 23, 2021, by the Daily Dot—a wholly owned subsidiary of Clarion Media—which stated that Plaintiff Daniel Bostic … was a "Jan. 6 Capitol riot organizer." Bostic claims that he "was not connected in any way with the January 6 riots, much less that he was an organizer or coordinator of riots and insurrection." According to his complaint, Defendants knew or disregarded that Bostic was not connected with the January 6 riot and falsely attempted to portray him as an organizer by using a photo of him at an event from a different rally in November 2020.
Bostic has a background in politics but maintains that he has never been substantially involved in any attempts to overturn the 2020 election. He first interned for and later worked as a staff assistant for Congressman Tim Scott, and in 2018, volunteered with the organization "Stop the Steal," which protested ongoing recounts in Broward County, Florida. After 2018, he maintained contact with the organizers of Stop the Steal but began to focus on promoting his filmmaking. He attended political rallies in 2020, including some following the November election results, but alleges that he did not play any part in organizing the Stop the Steal rallies planned for January 5 or 6, 2021. While Bostic does not firmly deny that Stop the Steal helped to organize parts of the January 6 protest, he says that the organization did not plan the march on the Capitol or rally at then-President Trump's speech.
While Bostic acknowledges that he was at a protest in Washington D.C. on January 6, he maintains that he only attended a peaceful portion of the protest. Bostic walked from the White House Ellipse to the media area of the Capitol Lawn and live-streamed a portion of the walk on Twitter via Periscope with "Stop the Steal" chants in the background. He captioned one of the videos "Storming the Capitol#StopTheSteal" but argues that he was so far away from the Capitol building that it should have been obvious that he was not actually storming anything. When he reached the Capitol, Bostic saw the violent scene unfolding, deleted his Periscope stream, and left the protest. According to Bostic, that was the extent of his participation in the events of January 6.
On January 19, 2021, Salon published an article stating that Bostic could be seen on video climbing the steps of the Capitol building. On February 23, 2021, the Daily Dot—an online news organization based out of Austin, Texas—published a short article stating that Bostic would be attending an upcoming Conservative Political Action Conference ("CPAC"). The Article was written by [Zachary] Petrizzo, who Bostic describes as an investigative reporter who has published for the Daily Dot[], Mediaite, Salon, and the Daily Beast….
3/3/2019: Schenck v. United States decided.
Last fall the Supreme Court heard oral arguments in Moore v. Harper, the North Carolina case about the "Independent State Legislature Doctrine," which I've written about here. On February 3, however, the North Carolina Supreme Court took the unusual step of granting a petition for rehearing that may cause the state court to reconsider the merits determination that the U.S. Supreme Court is currently reviewing. And yesterday (March 2) the U.S. Supreme Court asked for supplemental briefing about whether that rehearing order renders the decision below non-final, depriving the U.S. Supreme Court of jurisdiction.
Derek Muller has lots more discussion and helpful analysis.
I don't have a strong view about the finality question the Court asked about, but I have been puzzled by a prior, related jurisdictional question. Did the North Carolina state courts have jurisdiction to grant rehearing on the merits?
It is a general maxim of federal jurisdiction that a lower court loses jurisdiction of a case while an appeal is pending. So far as I can tell, this rule isn't entirely mandated by a federal statute, it's just understood to be a consequence of the way appeals work. Similarly, at common law "a writ of certiorari takes the record out of the custody of the inferior tribunal, leaving nothing there to be prosecuted or enforced by execution, and operates as a stay of execution." 14 AM.JUR.2D Certiorari 74 (2d ed.2006).
If that principle applied in Moore v. Harper, then the issue would not be whether the Supreme Court has lost jurisdiction over the case, but rather that the state court might lack jurisdiction to take such actions. Is there some reason that principle would not apply in Moore v. Harper?
One possibility is that the certiorari/pending-appeal principle doesn't apply to state courts for some reason. But I am not sure what that reason would be. The principle doesn't seem to be based on the "supervisory power" of the federal courts or anything like that, but rather on the nature of certiorari or appellate review.
Another possibility is that the principle has changed, at least as applied to certiorari. As Ben Johnson has recounted (including last year on this blog), the Supreme Court now uses certiorari to consider only particular questions in a case, not to take responsibility for the whole case itself. This is not how certiorari worked at common law, and so maybe with that change, the certiorari-jurisdiction principle has changed too. I've never heard anybody say this, but it's possible.
A third possibility, and I suppose it is the most likely, is that this has something to do with what Muller calls "the 'two track' approach in this case":
This case went on two separate tracks after the original North Carolina Supreme Court decision finding a partisan gerrymandering, the "Elections Clause" track and the "remedy" track.
The "Elections Clause" track was this petition for cert to the Supreme Court. The "remedy" track sent it back to a three-judge panel with instructions for the legislature to offer a new map, for the trial court to review that map for whether it was a gerrymander, and to implement its own interim map if the legislature failed to draw an appropriate map.
The petitioners here argued that the "Elections Clause" track could be separated from the "remedy" track because whatever happened with the remedy, the Elections Clause argument would remain–the legislature was not permitted to draw the map it wanted, and any remedy, whatever it was, was not going to allow the legislature to draw the map it wanted. . . .
So the Court took the case on that basis.
The two track approach already suggests some exception to the certiorari-jurisdiction principle is afoot. Presumably the Court's theory was that the "Elections Clause" part of the case was final, and could be reviewed, even if the "remedy" part of the case was not—which is also related to the point above about the Court reviewing specific questions rather than the whole case.
But, if that is true, wouldn't it also imply that the North Carolina Supreme Court's continuing jurisdiction over the "remedy" part of the case did not give it continuing jurisdiction over the "Elections Clause" part of the case, which was now up on certiorari? That is, if the two tracks were separate enough for one part of the case to go up on cert., wouldn't they also have to be kept separate enough that the state court had lost jurisdiction over that part?
The question marks above are not rhetorical. I've been puzzling over these questions for almost a month, and still am not confident I understand what is going on here. But with the news that the Supreme Court is going to dig in to the jurisdictional issues here, I figured I would take my puzzlement public in the hope that somebody has this figured out.
Justice Rehnquist in 1975:
Moreover, neither declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs, and the State is free to prosecute others who may violate the statute.
Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975).
Just published as part of the "Non-Governmental Restrictions on Free Speech" symposium; here's the Introduction (the article is here):
To what extent are free speech and open discussion being stifled on college campuses?
This question inspires sharp disagreement. Where some see a serious problem, others deny that there is any genuine reason for concern. Notably, for example, my fellow panelist Professor Mary Anne Franks has criticized what she calls "the myth of the censorious campus" while decrying the "false narrative" of political intolerance on college campuses. Professor Jeffrey Adam Sachs similarly writes of "the myth" of a campus free speech crisis, which he associates with a kind of "moral panic" due to conservative "hysteria." In a piece entitled "Free Speech on Campus Is Doing Just Fine, Thank You," Columbia University president Lee Bollinger, a noted scholar of free speech and the First Amendment, dismisses concerns about the current situation for free speech and open discussion as being due to
a handful of sensationalist incidents on campus—incidents sometimes manufactured for their propaganda value. They shed no light on the current reality of university culture.
Many similar expressions of this general theme can be found; skepticism that there is a genuine problem is well-represented both inside and outside academia. Indeed, skeptics often claim not only that there is nothing to worry about, but that worrying is itself pernicious, inasmuch as doing so plays into the hands of reactionary political interests.
Notwithstanding the frequent reassurances that there is nothing to worry about when it comes to free speech on campus, and even the warnings that worrying about such things is actually harmful, I confess to being among those who worry. Much of my concern relates to the phenomenon that is now widely known as cancel culture. The definition of "cancel culture" is contested. For this reason, and in order to zero in on the phenomenon that I want to explore, in the next section I offer a number of cases that I believe would qualify as examples of cancel culture under any reasonable understanding of that notion. The cases that I offer are not hypothetical ones but actual cases involving current Princeton undergraduates. Although they of course differ from one another and from other examples of cancel culture in their idiosyncratic details, I believe that in important respects they are broadly representative of the phenomenon as it exists on contemporary college campuses.
Having zeroed in on the target phenomenon, I will offer an analysis of what I take to be some of its most important features. I will be particularly concerned with understanding cancel culture as a rational phenomenon: on the account that I offer in Part II, students who actively participate in cancel culture, or who attempt to cancel their fellow students, are often acting with impeccable rationality given their aims and preferences, even if their behavior is objectionable in other ways. In Part III, I turn to the most common considerations offered by the skeptics and argue that they are unconvincing. In the Conclusion, I note a number of factors that might lead us to systematically underestimate the severity of the problem.
Just published as part of the "Non-Governmental Restrictions on Free Speech" symposium; here's the start of the Introduction (the article is here):
Contemporary free speech law and policy in the United States teems with contradictions that cannot be explained by any principled doctrine. The key to understanding the current legal and cultural landscape of free speech is not some enduring constitutional value or method of interpretation, but rather the ascendance of a very specific political ideology that is best described as neo-Confederate. Neo-Confederate ideology is a constellation of values that includes investment in racial hierarchy, attachment to traditional gender roles and gender conformity, idealization of the pre-Civil War South, belief that the U.S. is a Christian nation, and hostility to democracy. The neo-Confederate agenda renders coherent what otherwise appear to be chaotic free speech positions: the condemnation of "cancel culture" by promoters of censorship; the conflation of speech reactions with speech restrictions; the equation of the right to speak with the right to an audience; alternating invocations and dismissals of the state action doctrine. While these positions are malleable enough to occasionally serve progressive interests, they are most consistently and powerfully deployed to protect the interests of white male supremacy.
The neo-Confederate agenda is, as its name suggests, a partisan project. Though not all Republicans are neo-Confederates, virtually all neo-Confederates are Republican. While the attachment to Lost Cause mythology may be strongest in the South, its core tendencies—whitewashing the role of slavery in American history; selectively championing states' rights; and promoting racial, gender, and religious supremacy—have spilled over geographic borders.
The conservative reactionaries waging war against racial, gender, and religious equality have increasingly zeroed in on educational institutions as targets, often in the guise of fighting "critical race theory." In the first six weeks of 2022 alone, 103 bills were introduced in state legislatures across the nation that were aimed at restricting speech in schools and universities. These bills range from censoring what can be said about the role of racism and misogyny in shaping American institutions to forbidding "inappropriate" discussions of sexual orientation or gender identity. These provisions are vaguely and broadly worded in order to create maximum confusion and uncertainty about what speech is permitted. Many of these bills allow parents or other parties not only to demand removal of but also to sue over educational material they find personally objectionable, creating financial and social incentives for censorship. Republican officials and organizations have also issued executive orders, statements, book bans, and administrative guidelines attacking discussions of social justice and diversity. This anti-education movement vilifies teachers, administrators, librarians, and school-board members as "indoctrinators," "groomers," and "pedophiles," leading to harassment, doxing, threats, physical assaults, and firings….
From Montaquila v. Neronha, decided today by the Rhode Island Supreme Court, in an opinion by Justice Melissa Long:
On October 28, 2020, Providence police officers arrested Mr. Montaquila for misdemeanor simple assault after an incident involving his firearm at his place of business…. Eventually the government dismissed the charge against him.
On or after November 2, 2020, Mr. Montaquila applied to renew license No. 9012031, his concealed-carry license which was scheduled to expire on December 30, 2020. The application form questioned whether the applicant had "ever been arrested or charged for any offense[.]" Mr. Montaquila marked both the "yes" and "no" boxes and wrote "see letter attached."
In the undated letter attached to his application, Mr. Montaquila explained the incident as follows:
"[A] gentleman came into my business, which is a gas station and auto detailing facility[,] and became immediately combative and aggressive toward my staff because they would not perform certain work for free. He was clearly under the influence of drugs at the time. He began to throw items off the desk and act very threatening in my store.
"I came out of my office at my employees' request to mediate the situation. I told the gentleman he would have to leave the premises, and at that time he got very close to my face and shoved me away. At that point, I put my arms around his shoulders and walked him out the door. At no point did I strike, hit, or assault this person.
"The man then called the Providence Police, falsely reported that I assaulted him without reason, and I was arrested."
Last month, the New York Times reported on a pitched adverse possession battle between two residential buildings on the Upper East Side of Manhattan.
On a coveted stretch of Fifth Avenue, steps away from Central Park, the shareholders of an Upper East Side cooperative are fighting for an unusual prize: the ownership of a grimy concrete ditch behind their luxury apartment building.
The roughly 350-square-foot plot is at the center of a lawsuit filed on Friday in New York State Supreme Court that pits the millionaire residents of 980 Fifth Avenue against the real estate mogul and former governor of New York, Eliot Spitzer, who owns an adjacent rental tower. . . .
In its lawsuit, the co-op board is arguing that it should be the rightful owner of the pit through a doctrine called adverse possession, in which a party can make a legal claim to a property after 10 continuous years of undisputed use. While the property is legally owned by Mr. Spitzer's neighboring rental building, 985 Fifth Avenue, the co-op claims that it has routinely and openly used the roughly six-foot-deep niche to store construction supplies and has never been asked to stop.
For those of us teaching Property to 1Ls, the timing of the story could not have been better, as adverse possession often makes an early appearance in the course. It also served as fresh evidence of how musty old legal doctrines can be quite relevant in contemporary property disputes (especially where, as here, the parties appear to be motivated by more than just property).
I did not notice it at the time, but the location of the dispute—79th and Fifth Avenue along Central Park—was also the location of a famous property case that is a staple of the 1L survey course: Brokaw v. Fairchild.
Before this corner was occupied by residential towers, it was the site of the Brokaw mansion. This mansion, built in the late 19th century, was bequeathed to George Brokaw in life estate. George did not want to live there, however, and had a hard time finding someone willing to pay what he thought was a reasonable rent, so he wanted to tear down the mansion and build an apartment building. The only problem is that those who held future interests in the property (the "remaindermen," i.e. those who held contingent remainders) objected to these plans, leading to a lawsuit.
In the end, the courts rejected George's plans, holding that it would constitute "waste" for him to fundamentally change the nature of the property by tearing down the mansion and constructing an apartment building. Wrote the court, "such demolition would result in such an injury to the inheritance as under the authorities would constitute waste," even if (as George claimed) it would increase the value of the property.
The Brokaw mansion survived, and George lived there until his death in 1935. The mansion was eventually owned by Time magazine publisher Henry Luce, who was married to Clare Booth Luce (who had previously been married to George). Eventually, in 1964, the mansion was torn down and replaced with a residential tower—a residential tower that, as luck would have it, is now at the center of the aforementioned adverse possession fight, presenting yet another opportunity for the corner of 79th and Fifth to find a place in Property Law casebooks.
From Feitosa v. Keem, decided Tuesday by Judge William Skretny (W.D.N.Y.):
In this action, Plaintiff Dennis Feitosa alleges that Defendant Daniel Keem defamed him when he tweeted that "Def Noodles," Feitosa's YouTube persona, had been accused of grooming 12- to 15-year-old girls….
Keem also argues that the Tweet is protected by the First Amendment because it is not a factual assertion capable of being proven true. Rather, he argues, in light of the Twitter context, the Tweet is clearly a joke, an example of hyperbolic and rhetorical speech that no reader familiar with the Twitter genre would have taken as stating provable facts. Keem explains that within the insular influencer world both Feitosa and Keem inhabit, "comedians, entertainers, gamers, and influencers often post salacious and sometimes-controversial mocking content about each other and others with the hope of generating reactions among those who follow them."
In support of this proposition, he submits Tweets where Feitosa himself appears to accuse Keem of domestic abuse, and online statements where Feitosa explains that "everything [he does] is a joke." Keem argues that, given his Tweet's placement within a war of words between these two influencers, his Tweet could not reasonably have been understood as conveying a factual assertion….
3/2/2016: Whole Woman's Health v. Hellerstedt argued.
Over at the Yale Journal on Regulation's Notice & Comment blog I have a post commenting on recent exchanges during Supreme Court oral arguments concerning whether the Administrative Procedure Act requires nationwide vacatur when a court concludes an agency action is unlawful, and whether (as the Chief Justice suggested) the D.C. Circuit routinely provides nationwide relief when vacating agency rules.
The post begins:
During oral argument in Department of Education v. Brown, the second case concerning the Biden Administration's student loan forgiveness plan, the question arose whether it is proper for a single district or circuit court to impose a nationwide injunction against a federal policy where doing so is not necessary to provide complete relief to the parties before the court. While federal courts are empowered to "hold unlawful and set aside" agency action, Solicitor General Elizabeth Prelogar has argued that this does not necessarily mean that a successful challenge to an agency action in a lower court can or should result in a nationwide or universal vacatur of the agency rule or action at issue.
This discussion at oral argument was a reprise of SG Prelogar's argument in United States v. Texas, in which she pressed the position that when a lower court holds an agency action to be unlawful, it need not (indeed, should not) impose a nationwide vacatur. Relying on the work of UVA law professor John Harrison (see also here), Prelogar argued that "The APA did not create a novel remedy of universal vacatur." I think Prelogar (and Harrison) are correct here, but this is anything but a consensus view.
Several justices disagreed quite strongly with Prelogar's argument, with those justices who served on (or had been nominated to) the U.S. Court of Appeals for the D.C. Circuit voicing the loudest objections. The Chief Justice in particular was incredulous.
[Y]our position on vacatur, that sounded to me to be fairly radical and inconsistent with, for example, you know, with those of us who were on the D.C. Circuit, you know, five times before breakfast, that's what you do in an APA case. And all of a sudden you're telling us that, no, you can't vacate it, you do something different. Are you overturning that whole established practice under the APA?
I think the Chief Justice is wrong here. Let me explain why.
You can read the rest of the post here.
Over the last few years, the once-relatively obscure "major questions doctrine" (MQD) has become increasingly controversial, as the Supreme Court has relied on it in several major cases, such as the eviction moratorium decision, the OSHA large-employer vaccine mandate case, and West Virginia v. EPA. If yesterday's oral argument is any indication, the Court may also use it to strike down the Biden Administration's massive loan forgiveness plan.
The doctrine requires Congress to "speak clearly when authorizing an [executive branch] agency to exercise powers of vast 'economic and political significance.'" If such a broad delegation of power isn't clear, courts must rule against the executive's claims that it has the authority in question. Critics often argue that this rule is at odds with textualism in statutory interpretation—a theory to which many conservative judges are committed. For example, in her forceful dissent in West Virginia v. EPA, Justice Elena Kagan complains that MQD has become "a get-out-of-text free card." If the otherwise-best interpretation of a given text is that it grants the executive sweeping powers, why should MQD overturn it?
But, contrary to popular belief, there is in fact a textualist justification for MQD. Most textualists hold that statutory language should be interpreted in accordance with its "ordinary meaning." And they also recognize that ordinary meaning varies based on context. The same words and phrases might have different meanings depending on the situation. For example, prominent textualist legal scholar and judge Frank Easterbrook rejects "[a]n unadorned 'plain meaning' approach to interpretation [that] supposes that words have meanings divorced from their contexts." Instead, he emphasizes that "[l]anguage is a process of communication that works only when authors and readers share a set of rules and meanings." And those "rules and meanings" depend on context. Indeed, "clarity depends on context."
Such contextual considerations can justify the major questions doctrine. In most situations, people expect greater clarity and precision when granting an agent broad power, than when authorizing something narrower. For example, my wife and I recently hired a contractor to repair the old and somewhat dilapidated deck attached to our house. Imagine we signed an agreement giving the contractor the authority to "modernize and improve" the deck, and he then proceeded to tear the whole thing down and replace it with a bigger and more modern structure.
As a semantic matter "divorced from context," the contractor could argue that tearing down and replacing the deck counts as modernization and improvement. Indeed, it might result in greater modernization and improvement than a more limited repair job would have! But most ordinary readers of the agreement would readily understand that the contractor had exceeded his authority. Tearing down and replacing the entire deck is a big, expensive step that requires clearer and more specific authorization than a vague mandate to "modernize and improve." By contrast, if the contractor had taken the much more limited step of replacing a few decaying floor boards, most people would agree his actions were properly authorized, even though the agreement doesn't specifically mention such replacement.
The same point applies to statutory language. If anything, most ordinary readers probably assume that vast grants of legal authority over millions of people require even more clarity and precision than do contractual agreements like the deck replacement. For example, in the loan forgiveness case, the Biden Administration relies on a vague provision of the HEROES Act that allows the executive branch to "waive or modify" regulations governing federal student loans to justify cancellation of over $400 billion in student loan debt. Even if semantics "divorced from context" suggests that mass cancellation qualifies as a type of waiver or modification, contextual ordinary meaning indicates that such an enormous delegation of power requires greater precision.
The above analysis doesn't refute all possible objections to MQD. It obviously won't persuade non-textualist critics of the doctrine. Nor does it address claims that broad delegations to executive agencies are desirable, so the latter can use their (supposedly) objective scientific expertise to solve new social problems as they come up—especially in a world where Congress is often gridlocked.
Similarly, the argument made in this post doesn't address the problem that it will sometimes be difficult to tell whether a given assertion of executive authority qualifies as "major" or not. Here, I will only say that such fuzziness at the margin is a characteristic of many legal doctrines. It may be unavoidable in many situations where courts must rely on balancing tests and standards, rather than bright-line rules.
My argument also doesn't necessarily prove that any particular use of MQD to strike down a policy was justified. While I think the Court got it right in the eviction moratorium and vaccine mandate rulings, and would be justified in using MQD again in student loan forgiveness cases, West Virginia v. EPA strikes me as a tougher case; Justice Kagan's dissent makes a strong argument that the text of that statute is clear enough to satisfy MQD requirements.
Finally, the textualist rationale for MQD doesn't preclude other justifications for it. For example, I and others have also argued that the doctrine helps enforce constitutional nondelegation limits on the transfer of legislative authority to the executive.
But, despite its limited nature, the point made here does rebut one widespread criticism of MQD. Far from being inconsistent with ordinary-meaning textualism, the doctrine actually helps implement it.
I was watching "Year," a documentary by prominent Ukrainian journalist Dmytro Komarov about the first year since the full-on invasion of Ukraine (with English subitles); and I was struck by this exchange he had with President Volodymyr Zelenskiy.
Naturally, one always needs to be skeptical about such things: Zelenskiy is, after all, a politician, and a trained actor to boot, with a friendly interviewer and editor. But most significantly, he's a human being, and we humans are masters of spinning things, whatever our walk of life. Still, this had an air of the real, perhaps precisely because it wasn't particularly self-aggrandizing:
Komarov: Mr. President, on February 24, when there was an extraordinary atmosphere, when the [Russian] subversive and reconnaissance group was in Pechersk [in Kiev itself], did you think that the Russians could come in through those doors [pointing to the door of the President's office]? Did you think about what to do in such a situation?