Ok, I confess that the title to this post is a bit grandiose. At a minimum, we’ll have much more material on which to base our prognostications about the legality of the Clean Power Plan after Michigan v. EPA is decided on Friday or Monday. But I can’t resist accepting Chris Walker’s invitation to think for just a moment about whether today’s opinion in King v. Burwell signals something about the way this Court might deal with the Clean Power Plan.
The issue, as Chris has put it, is whether the application of the “amplified major questions doctrine” in King portends even further application of that doctrine in the future, and a concomitant decline in the importance of traditional Chevron analysis. In particular, it is all but inevitable that the Court will soon find on its docket an opportunity to review the EPA’s massive Clean Power Plan, an initiative that—love it or hate it—dramatically expands, in range and in scope, the EPA’s regulation of electric utilities. The statutory basis for EPA’s plan is debatable, not entirely unlike the statutory basis for the extension of tax credits to participants in federal health care exchanges. Might the Court decline to extend any Chevron deference at all to EPA on this matter, as in King? It’s an interesting question, and one made all the more so because Justice Scalia, who will likely write the decision in Michigan v. EPA, not only did not sign today’s majority opinion but strenuously rejected it, failing even to mention Chevron in the process. Nonetheless, Scalia has in the past expressed an unwillingness to defer to agencies when they implement major changes in policy without a word from Congress. In similar fashion, Scalia suggested in oral argument in Michigan that the EPA could not evade a consideration of regulatory costs, on the basis of statutory silence, if those costs were extreme. If today’s majority in King was charting a course for administrative law doctrine, then perhaps it is a course that will harmonize well with Scalia’s concerns, and not so well, of course, with the Clean Power Plan. As Justin Pidot (Denver) put it in a recent note to the primary environmental law listserv (copied here with permission):
On the other hand, there is Massachusetts v. EPA. Some saw in that decision the death knell for the major questions doctrine; at a minimum it demonstrates the, er, flexibility of principles of deference on matters of great policy import.
As I said, though, there will be more fodder for discussion when Michigan comes down. In the meantime, what I really find myself wondering about after today’s opinion is how scholars will describe Chief Justice Roberts’ legacy fifty or a hundred years from now. Many conservatives, on the basis of his decisions in momentous cases like Sebelius and King, have depicted the Chief as a deep disappointment, on a par with David Souter. Perhaps Roberts will be remembered as a moderate jurist, or a conservative with an overstrong tendency to “step into role” as defender of the institution. But I think it’s also possible that Roberts is playing the long game. If by upholding the ACA Roberts has lured the Court’s liberals into paring back both the Commerce Power and the Chevron doctrine, those doctrinal victories may ultimately matter to his legacy as much as, or even more than, the change in health care policy that Sebelius and King have all but cemented.