Constitutional Conceits in Statutory Interpretation

For all its talk about textualism, the Roberts Court has a recent habit of ignoring statutory texts in highly politicized cases. In National Federation of Independent Business v. Occupational Safety and Health Administration, West Virginia v. Environmental Protection Agency, and Brnovich v. Democratic National Committee, the Supreme Court steered around broad statutory language to narrow important federal legislation. In each case, the Court brushed aside inconvenient statutory texts, focusing instead on background constitutional concerns. Significantly, though, the policies at issue were not unconstitutional under current doctrine. The challenged policies, then, did not violate constitutional law so much as the conservative Justices’ constitutional sensibilities.

Admittedly, the Court has long interpreted statutes in light of constitutional anxieties, employing a variety of Constitution-based canons of statutory interpretation. The cases examined here, however, either applied those canons unusually aggressively or departed from them altogether. NFIB and West Virginia ostensibly relied on the major questions doctrine but transformed it from a modest interpretive aid into something far more intrusive. Brnovich did not even bother to invoke any of the constitutional canons, though amorphous federalism principles drove that decision.

While the Constitution-based canons of statutory interpretation have always afforded courts substantial discretion, these recent cases go much further. Rather than using constitutional canons to resolve statutory ambiguities, these decisions swept aside clear statutory language to advance the Justices’ constitutional conceits—that is, to further inchoate libertarian values inconsistent with contemporary constitutional law. Collectively, these cases paint an unflattering portrait of a Court willing to navigate around statutory text and constitutional doctrine to limit the scope of federal power.

Introduction

For all its talk about textualism, the Roberts Court sometimes interprets statutes with barely a nod to their texts. This trend is especially evident in recent cases involving highly politicized policies. In National Federation of Independent Business (NFIB) v. Occupational Safety and Health Administration (OSHA), West Virginia v. Environmental Protection Agency (EPA), and Brnovich v. Democratic National Committee (DNC), the Supreme Court steered around broad statutory language to limit important federal programs. In so doing, the Court significantly curtailed the federal government’s ability to tackle serious problems.

When viewed through a statutory-interpretation lens, this atextualism seems surprising. After all, many current Justices embrace textualism as the method of statutory interpretation. The Court’s notable departures from the statutory texts, however, make more sense when we view them as part of a larger constitutional project to reduce federal governmental power.

Indeed, the Court in these cases cared more about background constitutional ideas than statutory language. In the two cases involving administrative agencies—NFIB and West Virginia—the Court expanded the so-called major questions doctrine to reject administrative action. Revamping and (for the first time) identifying this doctrine by name, the Court required super-specific statutory delegations before agencies may address “major” political or economic issues. Driven by nondelegation concerns, the Court, in both cases, reinterpreted generous statutory delegations into stingy ones.

Scholars have already begun critiquing these major questions cases, but the Court’s atextualism significantly extends beyond the administrative law sphere. In Brnovich, the Court ignored the text of the Voting Rights Act (VRA) to diminish federal protections against racial discrimination in voting. Whereas nondelegation principles largely animated NFIB and West Virginia, federalism concerns drove Brnovich. Notwithstanding the text of the VRA, the Court wanted state and local officials, not federal courts, to shape election policy.

The irony is glaring. In the major questions cases, the Court insisted that Congress, not agencies, should be addressing national crises. In Brnovich, though, Congress had acted, but the Court still rewrote the statute to suit its preferences. As commentators have noted, the Court’s reformulation of the major questions doctrine is a crucial development in American public law. Brnovich, however, makes clear that the Court’s project is even broader and more ambitious. Today’s Supreme Court seeks to rein in not only administrative authority but national power more generally.

Constitutional concerns underlie the Court’s assault on federal authority, but these were statutory cases. Given the Court’s preferred interpretive methodology, however, these opinions are deeply problematic. For years, many Justices—especially the conservatives—have insisted that textualism is the only legitimate method of statutory interpretation. Nevertheless, the majority in each case only weakly gestured toward the statutes’ texts. These cases call into question the genuineness of that methodological commitment to textualism. If there is a faithful textualist on the Supreme Court today, it is probably Justice Kagan.

The opinions look no better through the lens of constitutional law. Nondelegation and federalism concerns largely drove these decisions, but the federal policies at issue were not unconstitutional under contemporary doctrine. In fact, the constitutional arguments against the statutes would generally falter under the ordinary modalities of constitutional interpretation—judicial precedent, past practices, structure, originalism, and so on. The challenged policies, then, did not violate constitutional law so much as the conservative Justices’ constitutional sensibilities.

Indeed, the Court itself barely mounted constitutional arguments, alluding to inchoate constitutional principles without actually developing them. Evidently, the conservative Justices felt that broad congressional delegations to administrative agencies implicated nondelegation norms. They likewise believed that the VRA infringed on state officials’ election administration. In each case, the Justices objected to an energetic federal government trying to solve the nation’s problems. Significantly, though, the Court did not argue that the policies violated the Constitution—perhaps because, under contemporary constitutional law, they didn’t. Nevertheless, the Court let these underdeveloped constitutional conceits drive its statutory interpretation.

The word “conceit” conveys multiple meanings relevant here. Most obviously, a “conceit” is an individual opinion. More to the point, literary critics use the word to refer to an extended rhetorical device rooted in the imaginary but nevertheless essential to a story. In this sense, a conceit is a fictitious assumption that a reader must accept for a plot to seem plausible. Here, the Justices’ statutory interpretation requires invoking constitutional ideas disconnected from contemporary constitutional doctrine. Like a literary conceit, these constitutional conceits are essential to the story (i.e., to the Court’s decisionmaking) and yet fictitious (i.e., they do not reflect constitutional law).

Finally, “conceited” means an “excessive appreciation of one’s own worth or virtue.” This meaning fits the bill, too. Supreme Court Justices are justifiably proud of their accomplishments. They have all risen to the pinnacle of their profession and deservedly have confidence in their legal acumen. Today’s Court, though, pushes past confidence to arrogance, casting aside plain statutory text and longstanding constitutional doctrine to blaze new legal trails. In the cases examined here, the Justices did so even though most legal evidence cut against their preferred outcomes.

In fairness, the Court has long interpreted statutes in light of constitutional concerns, applying a variety of Constitution-based canons of statutory interpretation. The constitutional avoidance canon is the most venerable of these, but there are others, including clear statement rules, nondelegation canons, and, more recently, the major questions doctrine. NFIB, West Virginia, and Brnovich, however, are unusually aggressive in their uses of constitutional ideas in statutory interpretation. Though they fit within the broad tradition of reading statutes in light of the Constitution, these decisions either do not purport to apply these constitutional canons at all (Brnovich) or stretch the pre-existing canons almost beyond recognition (NFIB and West Virginia).

Like some earlier cases applying the constitutional canons, though, the decisions here may foreshadow future changes to constitutional law. The Rehnquist Court, for instance, repeatedly invoked a super-clear-statement rule in service of federalism principles that were probably inconsistent with then-contemporary constitutional doctrine. Within a decade, the Rehnquist Court had issued a series of constitutional decisions vindicating the federalism principles underlying those interpretations. The clear-statement-rule cases, then, portended future changes to constitutional doctrine. Perhaps NFIB, West Virginia, and Brnovich also forecast the shape of constitutional law to come.

Judicial opinions, though, should be evaluated not as soothsayers but by their own internal rigor. Viewed through any legal lens—statutory texts, constitutional doctrines, or constitutional canons of statutory interpretation—these cases reflect an unusually activist Court. To be sure, the constitutional canons historically have afforded the Court discretion to reframe federal statutes. The recent cases, then, depart from past ones more in degree than kind. Nevertheless, these recent cases exemplify a new and especially ambitious effort in this vein.

The goals and effects of these decisions are to limit national power. They make it harder for the federal government to address serious and emerging crises, including, in these cases, COVID-19, climate change, and the degradation of democracy. The policy implications, however, extend beyond these areas. Barring an unexpected composition change, the Court’s anti-regulatory inclinations will likely jeopardize other important federal policies for the foreseeable future.

Part I of this Article argues that NFIB, West Virginia, and Brnovich were atextual decisions. Whatever else might explain these cases, it is not the statutory texts.

Part II identifies the constitutional conceits driving those decisions, contending that those conceits were inconsistent with contemporary constitutional law. Indeed, most familiar modalities of constitutional interpretation would vindicate the policies’ constitutionality.

Part III situates these cases within pre-existing constitutional canons of statutory interpretation, arguing that these decisions either ignored the canons or wielded them unusually aggressively.

Part IV explores the legal, political, and policy implications of an ostensibly textualist Court that is so willing to rewrite statutory texts to accomplish its ideological goals.

I. Statutory Interpretation on the Roberts Court

A. The Would-Be Textualists

More than seven years since his death, Justice Antonin Scalia still looms over the Supreme Court. For three decades, Scalia pushed his fellow Justices to rethink their methodological assumptions. Probably his most important contribution was his insistence that text—and text alone—drives statutory interpretation. While textualism includes numerous variants and complications, its basic commitment is to the language of the statute Congress passed, not a judge’s intuitions about legislators’ supposed policy objectives.

Most Justices today, especially the conservatives, claim to embrace textualism. In opinions, articles, speeches, and confirmation hearings, they repeatedly swear fealty to the statutory text, often with an explicit nod to Scalia.

Justice Scalia and others offered many reasons for affording the statutory text interpretive primacy. The Constitution requires that federal legislation be passed by both Houses of Congress and be presented to the President. All other interpretive factors, like legislative history, fail to satisfy these bicameralism and presentment requirements. They, therefore, lack the status of law under the Constitution.

Moreover, the statutory text alone has survived the onerous journey through numerous congressional vetogates (i.e., through the many points during the legislative process where proposed legislation can be killed). The statutory text, therefore, best reflects the compromises struck by members of Congress. Other factors, such as legislative history, only tell us what some members of Congress may have been thinking. The text, by contrast, reflects the actual legislative deal.

Furthermore, the statutory text is objective and consequently less easily manipulated than other indicia of statutory meaning. Citing legislative history is like “look[ing] over the heads of the crowd and pick[ing] out your friends.” There is, by contrast, just one statutory text.

In light of these and other arguments, other Justices have extolled Scalia’s textualism, none more so than Justice Gorsuch. Before he joined the Supreme Court, then-Judge Gorsuch lauded Justice Scalia for his attention to the statutory text. Once on the Court, Justice Gorsuch continued to promote textualism. In perhaps his most famous opinion, Bostock v. Clayton County, Justice Gorsuch pronounced, “Only the written word is the law . . . .” In a different opinion, he wrote, “It is not our function ‘to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have’ intended.”

Justice Gorsuch may be the most outspoken textualist, but he is not alone. Justice Barrett, too, has proclaimed her fidelity to textualism. “A judge,” she insists, “must apply the law as written.” Legislators, she has explained, decided to “writ[e] down and fix[] the law,” and judges should follow that text. Then-Judge Kavanaugh echoed these sentiments, too, simply stating, “The text of a law is the law.”

The commitment to textualism is not limited to the newer Justices. Justice Thomas, the Court’s most-senior member, has long insisted that judges must “turn first . . . to the text of the statute.” Justice Alito has gotten into the textualism game, too. Though he did not claim to be a textualist in Bostock, that case nevertheless pitted his understanding of the text against Justice Gorsuch’s.

Significantly, liberals can champion textualism, too. Justice Kagan celebrated Justice Scalia’s legacy in remarks at Harvard Law School when she stated, “[W]e’re all textualists now.” Before Justice Scalia joined the Court, Justice Kagan explained, judges might have asked, “Gosh, what should this statute be?” Thanks to Justice Scalia, they now ask, “[W]hat do the words on the paper say?”

At least if we take the Justices’ own statements seriously, textualism is the order of the day. Justice Scalia seems to have won.

B. Atextual Interpretations

On closer examination, though, it’s not so clear that the Court is nearly as textualist as it claims. In each of the high-profile cases examined here—NFIB, West Virginia, and Brnovich—the Court departed significantly from the statutory texts. More specifically, the Court interpreted broad statutes narrowly, effectively rewriting them.

1. NFIB v. OSHA

The Occupational Safety and Health Act provides:

The Secretary shall provide . . . for an emergency temporary standard to take immediate effect . . . if he determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.

As the COVID pandemic raged in late 2021, the Department of Labor, acting through the Occupational Safety and Health Administration (OSHA), announced a temporary emergency standard pursuant to this statutory authority. Under the Standard, employers with at least 100 employees had to ensure that their employees were fully vaccinated for COVID or, alternatively, that they mask at work and test weekly for COVID. The Standard included some exemptions, such as for employees who work remotely or exclusively outdoors.

The Biden Administration’s COVID plan focused on vaccination “because vaccines are the best tool we have to prevent hospitalization and death.” Medical experts widely agreed that vaccines were essential to protecting Americans from severe disease and death. Some studies also indicated that unvaccinated persons were more likely to spread COVID to others. By late 2021, however, vaccine hesitancy had become a serious obstacle to widespread vaccination. A year after vaccines first became available, over a third of the nation remained unvaccinated.

The Administration hoped that the Standard would result in the vaccination of about 100 million Americans, roughly two-thirds of all workers. While the plan admittedly was part of a larger effort to vaccinate the public, it applied only in the workplace. As the government explained, “unvaccinated individuals remain at much higher risk of severe health outcomes from COVID-19 . . . [and] are much more likely to contract and transmit COVID-19 in the workplace than vaccinated workers.”

The Supreme Court in NFIB rejected the Standard. The six-Justice per curiam opinion imposed a stay that effectively nullified the program. “Administrative agencies are creatures of statute,” the Court explained, and Congress had not provided OSHA with specific enough authority to promulgate the Standard.

In so holding, the Court faulted OSHA for creating too blunt a regulation. Specifically, the Court concluded that the regulation transcended OSHA’s jurisdiction over “‘occupational’ hazards and the safety and health of ‘employees.’” Though workers are at risk of transmitting COVID at work, they can also catch it elsewhere in society. Accordingly, the Court determined that COVID “is not an occupational hazard in most.”

The Court’s opinion was notably thin on textual analysis. It attempted to justify its departure from the text by contending that “[t]his [was] no ‘everyday exercise of federal power.’” Because the Standard was “a significant encroachment into the lives—and health—of a vast number of employees,” it was not enough that the statute appeared to grant the agency broad authority to address workplace health threats. Rather, the Court insisted that Congress legislate to address COVID vaccines specifically. “‘We expect Congress to speak clearly,’” the Court summarized, “if it wishes to assign to an executive agency decisions ‘of vast economic and political significance.’”

This idea that an agency may not regulate important matters without specific congressional authorization is at the heart of today’s major questions doctrine. Though the majority did not explicitly invoke it, the doctrine clearly drove its decision. Instead of parsing the relevant statutory language, the Court instead emphasized the policy’s significance. Because the policy was important, the Court then asked, “whether the Act plainly authorizes the Secretary’s mandate.” The answer, of course, was no. After all, Congress wrote the statute decades before COVID.

In his concurrence, Justice Gorsuch reasoned similarly, though he identified the major questions doctrine by name. Like the majority, he concluded that Congress had not spoken clearly enough. In response to the argument that the relevant statute actually did give OSHA broad emergency authority to address infectious diseases, Justice Gorsuch responded that a “lone statutory subsection” was insufficient, especially since it “was not adopted in response to the pandemic, but some 50 years ago . . . .”

Both the majority and concurrence waved away the statutory language. Because the agency was doing something significant and the statute itself did not address COVID specifically, the agency’s action was invalid. The textual contours of Congress’ statutory delegation were, apparently, irrelevant.

In so ruling, the Justices declined to engage with capacious statutory language granting OSHA broad authority to address threats to workplace health. The statute’s purpose section provides that Congress intends to “assure . . . safe and health[y] working conditions . . . by authorizing the Secretary of Labor to set mandatory occupational safety and health standards” and “by developing innovative methods . . . for dealing with occupational safety and health problems.” These standards could include measures “encouraging employers and employees . . . to institute new . . . programs for providing safe and healthful working conditions.”

This language clearly announces Congress’s broad intentions to promote workplace health, including through “innovative” programs. At a minimum, these provisions should inform how judges read the rest of the statute. Nowhere, though, did the majority grapple with this language.

Nor did it really wrestle with the statute’s operative language. Under the statute, the COVID virus clearly qualified as a “new hazard” and a “physically harmful” “agent.” As the dissent pointed out, a “hazard” is a “source of danger,” and an “agent” is a “chemically, physically, or biologically active principle.” Given that a virus is a “causative agent of an infectious disease,” the statutory language quite plainly authorized the OSHA standard.

The majority placed substantial weight on the argument that because employees cannot undo their vaccinations when they go home, the vaccine requirement extended beyond OSHA’s authority. OSHA’s authority, it contended, reaches only workplaces. By contrast, according to the Court, the Standard extended beyond workplaces.

This argument was divorced from the plain language of both the regulation and the statute. The regulation itself explicitly allowed workers to choose between vaccination, on the one hand, and masking and testing, on the other. If a worker objected to vaccination, they could test weekly and mask at work. It is not really accurate, then, to claim, as the majority did, that the Standard necessarily reached beyond the workplace. It only did for those workers who selected the vaccine option.

More importantly, the majority conjured limitations that appear nowhere in the statutory language. The majority complained that “[a]lthough COVID-19 is a risk that occurs in many workplaces,” it is not uniquely an employment hazard. Rather, it is also a hazard that appears “everywhere else that people gather.” As a result, the Court reasoned that OSHA’s jurisdiction did not extend to COVID.

Nothing in the statutory text, however, limits OSHA to address only dangers that appear in the workplace and nowhere else. Nor is such a reading consistent with common usage of “occupational” and “workplace” hazards in employment law. Indeed, the terms “workplace” or “occupational” hazards ordinarily encompass dangers workers face in the workplace, even if those same hazards also exist in the broader world. A workplace danger to human health does not cease to be an “occupational” hazard simply because it also exists elsewhere in society.

2. West Virginia v. EPA

The Clean Air Act Amendments of 1970 transformed the nation’s environmental regulatory framework. The statute authorized the development of comprehensive regulations to limit airborne emissions from stationary sources, like industrial factories, and mobile sources, like automobiles. Congress subsequently amended the law in 1977 and again in 1990.

Section 111 of the Act instructs the EPA to regulate stationary sources—that is, non-movable sources of air pollution like industrial smokestacks. The Act prescribes different but interrelated regulatory approaches for new or modified sources of air pollution, on the one hand, and existing sources, on the other. Section 111(b) requires the EPA to determine whether a new or modified industrial source of air pollution “causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” If so, the statute sets new source performance standards for the emission of air pollutants based on the “best system of emission reduction” (BSER) to limit such pollution. Each state then “may develop and submit to the Administrator a procedure for implementing and enforcing standards of performance for new sources located in such State.”

Section 111(d) mandates that performance standards also be set for existing sources of air pollution. More specifically, when the EPA regulates a pollutant (say, carbon dioxide) from new power sources, § 111(d) requires the EPA also to regulate that same pollutant’s emissions from existing sources. Once again, the EPA establishes guidelines for these performance standards based on what it determines to be the “best system of emission reduction.” States then submit a plan to the EPA to comply with such EPA guidelines. The EPA, in turn, decides whether to accept the state’s plan or reject it and create its own.

Pursuant to this statutory authority, the EPA, under President Barack Obama, issued the Clean Power Plan in 2015. Historically, under the Clean Air Act, the EPA had set emissions limits under § 111 based on the performance of technology that reflected the BSER (e.g., a certain amount of pollution per hour). Industries often installed new technology to help it comply with those emissions limits. For example, many coal plants use “scrubbers” to reduce emissions of certain pollutants like sulfur dioxide.

However, the approach that proved effective for sulfur dioxide was less promising for greenhouse gases like carbon dioxide. The EPA determined that technological adjustments to existing stationary sources would be very costly and yield only small reductions in greenhouse gas emissions. Consequently, the EPA redefined the BSER to include “generation shifting”—that is, a shift from, for example, coal-based power to renewable energy, like wind and solar power. The Clean Power Plan then identified an emissions limit in the guidelines based on this “best system.”

The Clean Power Plan never went into effect. First, the Supreme Court stayed its implementation. Then, Donald Trump won the presidency, and his Administration repealed the rule altogether. By the time Joe Biden became president, market forces had rendered the Clean Power Plan obsolete. Due to technological advancements, most of the Plan’s proposed emissions targets had already been satisfied. The EPA, therefore, abandoned it to pursue a new plan.

Though the Clean Power Plan never had been and never would be in effect, the Supreme Court in West Virginia v. EPA nevertheless pronounced its illegality. The majority framed the issue as “whether restructuring the Nation’s overall mix of electricity generation, to transition from 38% coal to 27% coal by 2030, can be the ‘[best system of emission reduction]’ within the meaning of [§ 111].” Writing for the Court, Chief Justice Roberts held that such generation shifting did not constitute the “best system of emissions reduction” and that the EPA therefore lacked such authority.

As in NFIB, the Court skimped on textual analysis. Rather than parsing the phrase “best system of emission reduction” or the other key statutory language, the Chief Justice instead contended that this was an “extraordinary” case that ought not be decided “within routine statutory interpretation.” As a result, textual evidence supporting the EPA’s assertion of authority was insufficient. Instead, the EPA needed “clear congressional authorization” for the precise regulation.

Like NFIB, the Court treated this as a major questions doctrine case, only this time it did so explicitly. Restructuring the country’s energy production from thirty-eight percent coal to twenty-seven percent coal was an important political and economic issue. Accordingly, Congress had to speak specifically to this precise exercise of the EPA’s authority. “A decision of such magnitude and consequence,” the Court concluded, “rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”

Citing earlier “major questions” cases—even though the Court had not previously labeled them as such—the Court acknowledged that those earlier “regulatory assertions had a colorable textual basis.” Translation: when the Court believes an agency is doing something “major,” broad statutory delegations don’t cut it. The Court instead requires that Congress specifically authorize the regulation at issue.

To the extent the Court engaged with the statutory text, it contended that § 111(d) was an “ancillary” provision invoked by the EPA only “a handful of times.” Because § 111(d) was really just a “[statutory] backwater,” the EPA could not rely upon it. Rather than offering an alternative reading, the Chief Justice instead emphasized that the EPA was invoking § 111(d) to seize previously unclaimed authority. In other words, even though the Act seemed to authorize the EPA to require shifts to cleaner energy, we ought not take that language seriously because the EPA hadn’t done so before.

As in NFIB, the majority’s argument isn’t meritless. Once again, though, the argument isn’t textual. To say that the EPA has rarely invoked a provision is not to elucidate that provision’s language.

The Court, indeed, conspicuously neglected to explain why the EPA’s authority to select the “best system of emission reduction” cannot include generation shifting. The EPA had found that a transition from coal to renewable energy sources would reduce emissions significantly more than technological adjustments to power plants. Whereas scrubbers effectively reduce certain kinds of stationary source emissions, such as sulfur dioxide, there was no comparably affordable and effective technology for reducing greenhouse gases at the emissions source. In theory, carbon capture and sequestration may reduce carbon dioxide; however, at the time of the Clean Power Plan, that technology was much more expensive than scrubbers—and, indeed, than renewable energy.

Significantly, the statute defines the “best system of emission reduction” with reference to both “cost” and the extent to which the best system’s merits have “been adequately demonstrated.” Carbon capture and sequestration may have been theoretically plausible approaches to reducing greenhouse gases at the time of the Clean Power Plan, but at the time, they were more expensive and less effective than renewable energy sources. Generation shifting, then, was a more cost-effective method of reducing greenhouse gas emissions and, therefore, the “best system of emission reduction” under the statute. The majority, however, conveniently sidestepped the statutory language considering cost and efficacy.

Moreover, as in NFIB, the majority ignored provisions announcing the statute’s broad purposes. Those provisions found that “the growth in the amount and complexity of air pollution . . . has resulted in mounting dangers to the public health and welfare” and that federal “leadership is essential for the development of cooperative Federal, State, regional, and local programs to prevent and control air pollution.” The “primary goal” was to “encourage…reasonable Federal, State, and local governmental actions . . . for pollution prevention.” Of course, purposivist arguments are often distinct from textual ones, except here, Congress included in the statutory text the law’s primary goal: reducing air pollution.

As in NFIB, the argument is not that there were no plausible arguments in support of the majority’s conclusion. The Clean Air Act is admittedly confusing, so even good-faith textualists can disagree about its meaning. The point here, though, is that the Court glossed over the language, focusing instead on the dangers of agency overreach. As a result, the Court took another broad statutory delegation and rewrote it into a narrow one.

3. Brnovich v. DNC

Brnovich v. Democratic National Committee (DNC) illustrates that the Court also narrowly reads broad statutes outside the administrative law sphere. Not long after the Fifteenth Amendment promised that the right to vote should not be abridged on account of race, states began devising measures to disenfranchise Black people and other racial minorities. States adopted grandfather laws, poll taxes, literacy tests, and other measures to prevent African Americans from voting. These practices continued in one form or another for nearly a century.

After decades of inaction and half-measures, Congress passed the Voting Rights Act of 1965. Section 2 of the VRA “guarantee[d] that members of every racial group will have equal voting opportunities.” In City of Mobile v. Bolden, the Supreme Court construed § 2 to apply to facially neutral voting practices “only if [they were] motivated by a discriminatory purpose.” Congress in 1982 responded to Bolden by passing VRA amendments to clarify that disparate impact, not only discriminatory purpose, could create a violation.

Under the 1982 amendments, which remain in place today, § 2(a) stipulates:

No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color . . . .

Subsection (b) clarifies that a violation of subsection (a) exists:

[I]f, based on the totality of circumstances, it is shown that the political processes leading to nomination or election . . . are not equally open to participation by members of [a racial group] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.

Brnovich involved the application of § 2 to two Arizona regulations governing the collection and counting of votes—that is, to the time, place, and manner of elections. One Arizona provision discards votes cast by eligible voters who cast their ballots in the wrong precinct. Another makes it a crime for most people to collect an early ballot (with some limited exemptions).

Despite strong evidence that the provisions disproportionately impacted minority voters, the Court upheld both provisions. Though earlier decisions, like Thornburg v. Gingles, had already construed § 2 in the vote-dilution context (e.g., district lines that reduce the political power of certain racial minority groups), the Court emphasized that it had never before decided a § 2 time, place, manner case. The Court, therefore, found the vote-dilution precedent irrelevant.

From there, the Court proceeded to reject a disparate-impact analysis. Like NFIB and West Virginia, its analysis was atextual. Notwithstanding the statute’s “results in” language, Justice Alito, writing for the majority, emphasized that a disparate-impact analysis would burden states too much. Justice Alito argued that requiring States to demonstrate that they could not protect their legitimate interests in ways that did not disproportionately burden voters of a particular race would “have the effect of invalidating a great many neutral voting regulations with long pedigrees that are reasonable mean of pursuing legitimate interests.”

This reading fundamentally altered the statute. The 1982 Amendment categorically prohibited voting rules “which result[] in a denial or abridgement of the right . . . to vote on account of race or color.” As Justice Kagan put it in dissent, this “‘results in’ language . . . tells courts that they are to focus on the law’s effects.” The Court waved away that language, contending that § 2(b) “sets out what must be shown to [establish] a § 2 violation.”

Whereas NFIB and West Virginia steered around inconvenient language, Brnovich rewrote the statute altogether. To determine whether voting was “equally open” to all “based on the totality of the circumstances” under § 2(b), the Court invented several factors. The Court’s newly created factors included “the size of the burden imposed by a challenged voting rule;” “the degree to which a voting rule departs from what was standard practice when § 2 was amended in 1982;” “the size of any disparities in a rule’s impact on members of different racial or ethnic groups;” “the opportunities provided by a State’s entire system of voting;” and “the strength of the state interests served by a challenged voting rule . . . .” Admittedly, some of these factors, like the size of the disparate impact, seem like reasonable glosses on the statute. After all, magnitude inquiries appear in other disparate-impact analyses. However, other factors, such as comparing voting rules against 1982 standards and evaluating other voting opportunities, seem not only contrived but flatly inconsistent with the VRA’s text, which tries to ensure that racial minorities do not have “less opportunity than other members of the electorate to participate in the political process.”

When the Court applied its new factors to Arizona, it found that both challenged provisions passed § 2 muster. The out-of-precinct rule, which required voters to identify their correct polling place and travel there, did not exceed “the usual burdens of voting” and, according to the Court, produced only a small racial disparity. The Court was likewise skeptical that the ballot collection measure produced a racial disparity. It argued that “differences in employment, wealth, and education may make it virtually impossible for a State to devise rules that do not have some disparate impact.” But, even if there were a racial disparity, Justice Alito found that the State’s compelling interest in deterring voter fraud sufficed to avoid § 2 liability.

The Court’s reading canceled out § 2’s “results in” language. Justice Alito was correct that § 2(b) clarifies what counts as a violation under § 2(a), but § 2(b)’s language nowhere erases § 2(a)’s results test. Justice Alito’s convoluted analysis of subsection (b), though, ended with just such a conclusion. Indeed, he called the dissent’s focus on “disparate impact” a “radical project,” even though results-based analysis is precisely what the statutory language commands. As Justice Kagan wrote, § 2 “tells courts . . . to eliminate facially neutral . . . electoral rules that unnecessarily create inequalities of access to the political process.”

While some of Justice Alito’s factors may be justified as part of a disparate-impact analysis, they collectively undo § 2’s text. For example, he cited the prevention of fraud as a “strong and entirely legitimate state interest . . . .” In theory, this may seem fair enough. In practice, however, the Court required no empirical showing about the risk of fraud. Under Brnovich, then, a State’s mere assertion of fraud prevention is apparently sufficient to uphold voting procedures against VRA challenges. In other words, under the majority’s approach, the VRA does permit a state to enact voting procedures that “result” in diminished voting opportunities for racial minorities, so long as it is motivated to combat fraud (or, presumably, another important state interest). Apparently, policy trumps text.

Brnovich is so unmoored from the VRA’s text that the dissent described it as “mostly inhabit[ing] a law-free zone.” Justice Alito responded that the “five relevant circumstances . . . all stem from the statutory text . . . .” It is utterly unclear, though, how they do. Justice Alito likely sidestepped the text because its breadth did not permit his holding. As Kagan put it, “To read [the VRA] fairly, then, is to read it broadly. And to read it broadly is to do much that the majority is determined to avoid.”

C. Summary: Atextual Statutory Interpretation

The statutes in these three cases were broad, but they were reasonably clear as these things go. Nevertheless, in each case, textual analysis took a backseat to the Court’s crusade against what it sees as excessive federal power. As a result, the Court was able to rewrite or ignore broad statutory language.

To be fair, the Court’s arguments were not entirely frivolous. From the Court’s standpoint, each of these situations involved governmental efforts to apply old statutes to new problems. The Occupational Safety and Health Act wasn’t enacted with COVID in mind (though it did empower OSHA to protect against new threats to workplace health and safety). The 1970 Clean Air Act Amendments predated contemporary preoccupations with climate change (though whether the 1990 amendments did is debatable, and the Supreme Court has held that the Act does authorize the EPA to regulate greenhouse gases). The VRA was passed when most Southern states systematically denied African Americans the right to vote (though this argument is weaker for the 1982 amendments). In the conservative Justices’ eyes, if Congress wants to address new situations, it should pass new statutes.

This aversion to using old statutes to solve new problems may not be crazy, but in these cases, it was atextual. The statutes at issue were all broad. Presumably, Congress wanted to deal with workplace safety, air pollution, and voting rights in ways that would not require future Congresses to pass new legislation when new problems in those areas arose. The conservative Justices may disapprove of such sweeping legislation, but genuine textualists would respect Congress’s language.

The cases here, it should be said, are not necessarily representative of the Roberts Court’s statutory interpretation more generally. Anita Krishnakumar’s 2017 empirical study of the Roberts Court concluded that the Court rarely relied on substantive canons as an “escape valve” for textualism but instead used other considerations, such as precedent and practical consequences. To the extent they rely heavily on substantive canons (i.e., the major questions doctrine) or other substantive norms to shape statutory interpretation, the cases examined here appear to be outliers.

These cases may also be outliers in their atextualism. As Victoria Nourse puts it, the Roberts Court’s statutory interpretation often includes “minute dissection of text.” The three cases here, then, may be somewhat unusual in just how little the statutory texts mattered.

On the other hand, textualism may be doing less to decide statutory cases today than the Justices like to admit. Professor Nourse also finds that, while frequently invoked, textualism often did not constrain the Court’s outcomes because the Justices frequently interpret texts differently. Indeed, the textualist Justices themselves often openly disagreed about which particular part of the text counted and what it meant. In those cases where the Justices do not agree on the text’s meaning, they typically embrace consequentialism (i.e., results-motivated reasoning) to guide their decisionmaking. While the three cases’ atextualism may be unusual, these cases do employ consequentialist reasoning. In at least that regard, these cases are consistent with both Nourse’s and the broader literature’s findings.

Regardless of whether the three cases here fit neatly into larger patterns, they tell a crucial story. Significantly, the political and policy stakes were very high in each. It may be easier for Justices to follow their methodological preferences in more run-of-the-mill cases. However, cases about COVID vaccines, climate change, and voting rights are hardly run-of-the-mill.

To be sure, there are other recent highly politicized cases in which the Court does purport to engage in textual analysis. Bostock is a good example. Significantly, though, the Bostock majority and dissent interpreted the relevant text in radically different ways. Some commentators have even contended that textualism actually did little real work there. To that extent, while Bostock at least purported to analyze the statutory text, that case also suggests important variations within textualism.

Most striking about the instant cases is how little the Court looked at text at all. The Court’s readings, indeed, were so atextual that Justice Kagan took the extraordinary step in West Virginia of calling out the majority’s hypocrisy. Recalling her earlier statement that “we’re all textualists now,” Kagan revised her views. “It seems I was wrong,” she wrote, “The current Court is textualist only when being so suits it.”

II. Constitutional Conceits in Statutory Interpretation

Though the Court never said the statutes in these cases were unconstitutional, it let constitutional anxieties about expansive federal power drive its statutory interpretation. In that regard, these cases are hardly anomalous. To borrow from Gillian Metzger, the Court’s recent statutory and administrative law cases feature a “heavy constitutional overlay.”

This Section explores the constitutional conceits driving the Court’s statutory interpretation. Part A introduces the primary conceits driving these cases: nondelegation concerns in NFIB and West Virginia, federalism concerns in Brnovich. It, then, briefly turns to some secondary conceits that also informed the Court’s thinking: individual rights and democratic accountability. Part B argues that the constitutional ideas behind these conceits are inconsistent both with contemporary constitutional doctrine and with most standard modalities of constitutional interpretation. Part C briefly concludes that the Court abandoned the statutory texts in these cases to vindicate inchoate constitutional values that are not, in fact, constitutional law.

A. Constitutional Conceits Driving Statutory Interpretation

1. Primary Constitutional Conceits

a. Nondelegation Conceits

In NFIB and West Virginia, the Court’s principal constitutional concern was the delegation of broad authority to administrative agencies. In the majority’s eyes, Congress, not administrative agencies, should make policy. Executive policymaking by agencies like OSHA and the EPA raises separation of powers concerns. The Court’s invocation of the major questions doctrine, explicitly in West Virginia and implicitly in NFIB, reflected these anxieties.

As formulated in NFIB and West Virginia, the major questions doctrine is a cousin of the nondelegation doctrine. Under the nondelegation doctrine, courts will strike down congressional delegations of rulemaking authority to administrative agencies if Congress has not provided the agency with a sufficiently “intelligible principle.” Historically, this doctrine has been very deferential, but that may change. Dissenting in Gundy v. United States, Justice Gorsuch, joined by Chief Justice Roberts and Justice Thomas, proposed breathing new life into the nondelegation doctrine. Justices Alito and Kavanaugh, too, have signaled interest in this project. Therefore, at least five Justices seem ready to reconsider this area of law.

The Court has yet to do so, but NFIB and West Virginia took steps in that direction via the major questions doctrine. Those cases nullified administrative action and required far more specific legislative delegations before agencies can act. Like constitutional nondelegation holdings, these decisions expressed a strong preference for congressional, rather than agency, policymaking.

To be sure, there are significant differences between the nondelegation doctrine and the major questions doctrine. A constitutional nondelegation holding would sweep far more broadly, applying beyond “major” agency to all agency action under a given statute. A nondelegation holding, thus, disempowers the agency far more completely, effectively prohibiting any agency rulemaking pursuant to a particular statutory authority. A major questions holding, by contrast, merely invalidates a particular agency action and, presumably, applies only when the Court believes the agency is doing something very important.

Nevertheless, a judicial invalidation of agency rulemaking on either nondelegation or major questions grounds forces Congress back to the legislative drawing board. In both cases, the agency cannot promulgate the regulation in question until Congress passes a new statute with more specific delegated authority. Despite the important differences, both doctrines give judges tools to undermine broad statutory delegations to agencies.

In concurrences in both NFIB and West Virginia, Justice Gorsuch elaborated on the connections between the nondelegation and major questions doctrines and on their ostensible constitutional pedigrees. Because administrative bureaucrats, unlike members of Congress, are unelected, Justice Gorsuch argued, the major questions doctrine helps protect democracy. The doctrine, thus, helps the Court “fulfill” its “solemn” duty to “ensure that acts of Congress are applied in accordance with the Constitution.” The major questions doctrine, Gorsuch wrote, thus helps preserve “self-government, equality, fair notice, federalism, and the separation of powers.”

Though the majority opinions in these cases were less explicit, they too seemed to rely on these same ideas. Indeed, the majorities and concurrences justified their approaches by citing the same precedents. Rather than engaging with the statutory texts, the conservative Justices instead pointed to the constitutional problems created by today’s behemoth administrative state.

b. Federalism Conceits

In Brnovich, the Court drew heavily on the federalism-based conviction that states, not the federal government, should control elections. Justice Alito’s opinion repeatedly worried that the textualist reading favored by the dissent would intrude on states’ autonomy to set their own voting rules. For example, one of Justice Alito’s factors was “the degree to which a voting rule departs from what was standard practice when § 2 was amended in 1982 . . . .”

Justice Alito’s solicitude for existing state practices is odd, given that Congress passed both the VRA and the 1982 amendments to displace state voting rules. Those rules, after all, often discriminated against racial minorities. Justice Alito’s presumption, then, is exactly the reverse of what Congress was trying to do. His approach privileges federalism concerns over the statute.

Though NFIB and West Virginia focused on separation of powers concerns, a federalism thread ran through them as well. Justice Gorsuch emphasized that “[t]he federal government’s powers . . . are not general but limited and divided.” The federal government, he reminded us, must “properly invoke a constitutionally enumerated source of authority to regulate . . . .” The major questions doctrine, Justice Gorsuch explained, “seeks to protect [federalism] against ‘unintentional, oblique, or otherwise unlikely’ intrusions . . . .” Phrased differently, by making it more difficult for agencies—and, therefore, the federal government—to act, the major questions doctrine leaves more matters to the states.

2. Secondary Constitutional Conceits

In addition to its primary constitutional concerns, the Court’s opinions also gestured toward other constitutional ideas. Though less central to the Court’s decisions, these conceits also merit brief attention.

a. Individual-Rights Conceits

NFIB and West Virginia identified individual liberty norms. This sentiment was strongest in NFIB, where the majority and concurrence seemed concerned that individuals might be forced to get vaccines against their will. The OSHA policy, the Court lamented, was “a significant encroachment into the lives—and health—of a vast number of employees.” Justice Gorsuch’s concurrence likewise complained that the emergency standard attempted to “govern the lives of 84 million Americans.” Justice Alito echoed these sentiments at oral argument when he noted that the policy affected “people who have chosen independently not to be vaccinated and do not want to be vaccinated[.]”

Similarly, West Virginia explained that the Clean Power Plan would have forced coal plants to shift their business plans or stop making power. The majority especially objected to a ruling that could require power plants to change their business models. Justice Gorsuch, for his part, explicitly invoked liberty principles, writing, “the power to make new laws regulating private conduct [is] a grave one that could, if not properly checked, pose a serious threat to individual liberty.” In short, liberty norms, though not central to the Court’s opinions, help animate these decisions.

b. Democratic-Accountability Conceits

Democracy and accountability principles also played a role. Justice Gorsuch waxed eloquent on the democratic norms underpinning the major questions doctrine. The Constitution, he wrote, vested the legislative power in Congress “because the framers believed that a republic—a thing of the people—would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable ‘ministers.’” The Constitution “placed its trust not in the hands of ‘a few, but [in] a number of hands,’ so that those who make our laws would better reflect the diversity of the people they represent . . . .” When elected lawmakers delegate, then, they relinquish their constitutional obligation to make policy. Delegation, Justice Gorsuch continued, further threatens accountability because lawmakers sometimes are tempted “to delegate power to agencies to ‘reduc[e] the degree to which they will be held accountable for unpopular actions.’”

In light of these concerns, the major questions doctrine “ensures that the national government’s power to make the laws that govern us remains where Article I of the Constitution says it belongs—with the people’s elected representatives.” The administrative state, Justice Gorsuch told us, lacks the accountability of democracy, because it is “‘government by bureaucracy supplanting government by the people.’”

Though less overt, Brnovich also seems animated by these concerns. The problem with a more robust reading of the VRA, the majority explained, is that it “bring[s] about a wholesale transfer of the authority to set voting rules from the States to the federal courts.” These decisions, the Court indicated, should be made by politically accountable state and local legislatures, not unelected federal judges.

B. Debunking the Conceits

The constitutional conceits driving these decisions reflect the conservative Justices’ deeply held convictions. They do not amount, however, to black letter law—at least, not yet. In other words, the Court could not have relied on these constitutional ideas to strike down the policies as unconstitutional without dramatically changing constitutional doctrine.

To be sure, the Court can change constitutional doctrine. This subsection, however, argues that most of the usual modalities of constitutional law cut against such doctrinal transformations or are, at best, close calls with evidence pointing in different directions. In short, the majority in these cases relied not on constitutional law but their rather inchoate constitutional sensibilities.

1. Debunking the Court’s Primary Constitutional Conceits

The first subsection here debunks the nondelegation conceits underlying NFIB and West Virginia through the lenses of five major modalities of constitutional interpretation: judicial precedent, past practices, pragmatism, structure, and originalism. The next subsection uses the same analysis to debunk the Court’s theory of federalism underlying Brnovich.

a. Debunking the Court’s Nondelegation Conceit

i. Judicial Precedent

Nondelegation anxieties clearly animated NFIB and West Virginia, but those concerns are not reflected in current law. To the contrary, the Court has not struck down agency action on nondelegation grounds since 1935. The common wisdom since the late 1930s has been that Congress has broad authority to delegate. To paraphrase Cass Sunstein, the nondelegation doctrine “has had one good year and [235] bad ones.”

To the extent the nondelegation doctrine remains part of our constitutional law, it is extremely deferential. If Congress wishes to delegate matters to administrative agencies, it must do so with an “intelligible principle.” Courts have accepted even very broad and vague statutory delegations as sufficiently “intelligible.” As one prominent commentator summarized, “Descriptively . . . a successful challenge to a federal law as an impermissible delegation of legislative power seems unlikely.” Indeed, until recently, the constitutional critique of the administrative state was widely considered “off the wall.”

Another significant precedent also confirms broad administrative authority: Chevron U.S.A. v. Natural Resources Defense Council. That decision, of course, is not a constitutional decision, but it has shaped administrative law for over a generation. Chevron requires courts to defer to reasonable agency interpretations of the statutes they administer.

Chevron is not a nondelegation doctrine case, but it presumes the legitimacy of delegations based on ambiguous or vague statutory language. Agencies under Chevron not only have authority to craft policy but also to interpret the scope of their own authority when the legislative delegation is unclear. Chevron recognizes that ambiguous statutes delegate interpretative authority to agencies rather than courts.

The notion that the nondelegation doctrine seriously constrains congressional delegations is in deep tension with Chevron. The Court may soon revisit Chevron, but it had not done so before deciding NFIB or West Virginia. Like the nondelegation doctrine, Chevron then remained good law. The constitutional conceits underpinning NFIB and West Virginia are inconsistent with those precedents.

ii. Past Practices

Courts often find past governmental practices constitutionally relevant. In this instance, they do not help the conservative Justices’ position either. Administrative agencies have played a substantial role in American government since the founding and a major role since the late nineteenth century. The Progressive Era growth of railroads, manufacturing, industrialism, and modern banking all provoked significant expansions of administrative regulation. Administrative action grew even more dramatically during and after the New Deal. The 1960s and 1970s saw the addition of still more major programs, like Medicare and Medicaid, and new regulations addressing problems like the environment, workplace safety, and consumer protection. More recently, administrative governance has grown in other areas, including national security, financial regulation, and health care.

Delegations have been not only plentiful but also broad. The point here isn’t to defend or attack these practices. Rather, it is simply to point out that the practice has existed since the founding and proliferated for well over a century. These longstanding practices cut in favor of their constitutional validity.

iii. Pragmatism

The conservative Justices’ anti-administrative constitutionalism also has the potential to profoundly disrupt American law and government. “Modern government is administrative government.” In many cases, government would be unable to function if it could not delegate broad authority to administrative agencies.

There are sound pragmatic reasons to permit delegation. Agencies often possess a policy expertise that Congress lacks. Congress delegates because it “knows what it doesn’t and can’t know.” Congress also often delegates to empower agencies to address not only current but also future problems. “A key reason Congress makes broad delegations . . . is so an agency can respond, appropriately and commensurately, to new and big problems.”

Congress, of course, also knows better than anyone that vetogates often prevent it from acting quickly or at all. Historically, Congress has believed that agencies were a crucial tool to addressing the nation’s problems. Delegation, in short, is essential to effective modern governance.

iv. Structure

The conservative Justices question whether the administrative state is consistent with constitutional structure. Justice Gorsuch argued that “[i]f Congress could hand off all its legislative powers to unelected agency officials, it ‘would dash the whole scheme’ of our Constitution . . . .” Accordingly, the major questions doctrine helps preserve legislative power and check administrative authority.

Some serious arguments underlie this line of thought. Article I of the Constitution vests the legislative power—the power to make law—in Congress. Article II empowers the executive branch to carry out those laws. Whereas the last three factors (precedent, past practices, and pragmatism) cut unequivocally against the conservatives, this factor offers some support for their views.

The problem is that this account of separation of powers is incomplete, reading a bit like an essay by a precocious student who has done only half the reading. Contrary to Justice Gorsuch’s assumptions, the Constitution’s structure serves more than one end. The framers sought to reconcile two problems. On the one hand, as conservatives emphasize, the framers sought to divide power to minimize the possibility that government would threaten liberty. On the other hand, given the weak and incompetent national government under the Articles of Confederation, the framers also hoped to create a more powerful and effective federal government that could protect the public welfare. Justice Gorsuch’s vision of separation of powers emphasizes the former but ignores the latter.

Yet the latter was important, too. Most of the founders were not rigid ideologues but practical statesmen who wanted government to work. As Alexander Hamilton put it, “[G]overnment ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care . . . free from every other control but a regard to the public good and to the sense of the people.” The founders were, as Justice Gorsuch reminds us, concerned about governmental oppression, but they also believed government should promote the public welfare. And while Hamilton’s vision of national power was especially robust, other framers shared his notion that the centralized government should have sufficient power and flexibility to protect the people against threats.

Justice Gorsuch’s rigid view of separation of powers is inconsistent with this intellectual heritage. It would limit functional governance, notwithstanding the founders’ plans to the contrary. Had the founders really wanted a neutered central government, there would have been less urgent need to abandon the Articles.

Moreover, as John Manning has argued, the Constitution not only separates powers but blends them. The Framers made various choices about different branches of government at various levels of generality. Sometimes, the Constitution speaks in specific terms about a particular power’s placement, but many structural provisions are open-ended. While the Constitution does vest the legislative power in Congress, no provision expressly denies Congress authority to delegate that power. The assumption that such delegation is constitutionally problematic, then, is in tension with Chief Justice Marshall’s contention that the Constitution subjects Congress’s exercise of authority to “no limitations, other than are prescribed in the Constitution.” Indeed, a formalist like Justice Gorsuch who treats delegation as a violation of some amorphous separation-of-powers principle “attribute[s] to parts of the [Constitution] a specificity of purpose that the text may not support.”

Relatedly, the conservative theory here ignores important ways in which the administrative state’s internal bureaucratic structures actually advance the Constitution’s structural concerns. Notice-and-comment rulemaking, for example, invites a range of policy perspectives. In some senses, the rulemaking process is more democratic than legislation insofar as agencies, unlike Congress, must consider the comments of anyone who offers suggestions. So too do agencies’ internal policies help foster deliberation, ensuring that policymakers consider a range of perspectives before setting policy. Thus, delegation to administrative agencies may actually improve the responsiveness of government to the electorate’s wishes.

There are also important external checks on agencies that render them more politically accountable than the conservatives suggest. The heads of executive agencies (including OSHA and the EPA) are appointed and removable by the President. To this extent, many administrative agencies, unlike Congress itself, are responsive to the only public official elected by a national constituency. Congress, furthermore, can check rogue agencies through hearings, appropriations, and, of course, legislation. Collectively, these mechanisms limit agencies’ power and render them more accountable. Agencies, to be sure, suffer some accountability deficit, but not nearly to the extent Justice Gorsuch suggests.

v. Originalism

The conservatives’ interest in reviving the nondelegation doctrine also relies on originalism. The historical record, however, seriously complicates this argument. While some academic studies cast doubt on the administrative state’s constitutionality as an original matter, this is contested ground. If anything, the Constitution’s original meaning and understanding probably permitted substantial delegation.

There are, of course, different variants of originalism. For the original-public-meaning originalist, the Constitution’s text offers no direct support for the proposition that Congress may not delegate lawmaking authority. Article I vests legislative power in Congress, but not in exclusive terms.

Like the structural argument examined above, the original-public-meaning argument against delegation understands the terms “legislative” and “executive” narrowly. On this view, Articles I and II collectively erected a high barrier between the legislative and executive powers. Congressional delegation of lawmaking authority to executive agencies, then, would be improper because the executive branch would be doing something (lawmaking) that the Constitution instead requires of Congress.

This argument, however, is likely inconsistent with the founding generation’s use of language. As Julian Mortenson and Nicholas Bagley explain, administrative rulemaking in the Founders’ parlance would have constituted an exercise of both executive and legislative power. Indeed, while the conservative critique assumes that agency rulemaking exercises delegated legislative authority, it is “no less accurate” to say that the agency there is “executing the law.” The founding generation’s own terminology complicates an original-public-meaning argument hinging on rigid boundaries between the legislative and executive powers. Nor does the original Constitution specify rules of statutory interpretation instructing courts to construe legislative delegations stingily.

Original practices undermine the nondelegation argument even more. As Jerry Mashaw explains, “From the earliest days of the Republic, Congress delegated broad authority to administrators…and specifically authorized administrative rulemaking.” Early Congresses, in fact, adopted dozens of statutes that empowered executive actors—what we today would call “agencies”—to adopt binding rules.

From the very beginning, Congress delegated rulemaking authority. The First Congress delegated legislative authority in a variety of areas including the administration of federal territories; the articulation of standards for the granting of patents; the regulation of commerce with indigenous tribes; the rules surrounding pensions for Revolutionary War veterans; the strategy for restructuring the nation’s sizable foreign debt; the assessment and enforcement of taxes; naturalization standards; and more. Perhaps most famously, when it created the First Bank of the United States, Congress delegated substantial authority to the Bank’s directors (some private, some public) to adopt regulations.

The practice of delegation continued. Within the Constitution’s first decade, Congress had created a substantial government with a range of administrative bodies. Many enjoyed substantial authority to create rules.

Early Congresses, then, did not believe that the Constitution inhibited its authority to delegate legislative power. While these Congresses’ views are not constitutionally decisive, their members were uniquely acquainted with the Constitutional Convention and ratifying debates. If delegation really were inconsistent with the Constitution’s original meaning or understanding, it is unlikely the First Congress would have delegated so often.

If there were a serious constitutional problem with delegation, one would also think that legislators would have cried foul more often than they did. James Madison mounted the most famous nondelegation objection when he questioned whether Congress could constitutionally delegate the authority to establish postal roads. Madison’s view, however, was in the minority. During the debates, other members of Congress rejected Madison’s logic, pointing out that some of Congress’s powers could not be exercised without delegation. Congress then proceeded to delegate substantial discretion to determine the location of both postal roads and post offices themselves. For all of Madison’s importance, this was one of many instances in which his contemporaries rejected his constitutional judgment.

To be sure, some scholars, like Ilan Wurman, have contended that originalism bolsters the nondelegation doctrine. At best, Wurman establishes that the historical account is messy, a point he himself makes. That messiness hurts the nondelegation case; judges should be reluctant to overrule longstanding precedent based on deeply contested originalist arguments.

Indeed, it is telling that not even Justice Gorsuch, a self-proclaimed originalist, wrestles with this history. In response to Justice Kagan’s historical arguments, which cited scholarship, Justice Gorsuch snarked, “if a battle of law reviews were the order of the day, it might be worth adding to the reading list.” He proceeded to list some articles, including Wurman’s, to signal (correctly) that scholars disagree on the history. He did not, though, engage with the articles’ ideas. If the historical record convincingly supported a robust nondelegation doctrine, surely an originalist Justice should explain why.

Finally, if we must follow originalism, it’s not clear that the conservatives’ preference for vigorous judicial review over separation of powers is consistent with original meanings or understandings. While the founders were familiar with the concept of judicial review, they likely did not believe themselves to be vesting the federal courts with broad authority to second-guess the political branches. As Gordon Wood has argued, judicial review at the founding was “something to be invoked only on the rare occasions of flagrant and unequivocal violations of the Constitution. It was not to be exercised in doubtful cases of unconstitutionality and was not yet accepted as an aspect of ordinary judicial activity.”

To be sure, judicial review has long been a part of our system; I do not question its legitimacy. Nevertheless, the Judiciary did not start playing a substantial role in defining separation of powers until 1926, and the Constitution’s text nowhere clearly vests the Court with this role. In light of this history, the faithful originalist would at least question whether they ought to wield the judicial power so aggressively.

b. Debunking the Court’s Election-Federalism Conceit

i. Judicial Precedent

Brnovich repeatedly expressed concern that § 2 of the VRA, read as the dissent did (i.e., read as written), intruded too much on state prerogatives. Supreme Court precedent, however, supports § 2’s constitutionality. City of Rome v. United States held that the VRA was a constitutional exercise of Congress’s authority under § 2 of the Fifteenth Amendment to protect voting rights against racial discrimination. Citing McCulloch v. Maryland, Rome indicated that Congress’s Fifteenth Amendment enforcement power was similar in scope to its considerable power under the Necessary and Proper Clause.

Rome, moreover, expressly rejected the contention that Congress may not legislate under the Fifteenth Amendment to “outlaw voting practices that are discriminatory in effect.” Relying on South Carolina v. Katzenbach, which interpreted the VRA shortly after its passage, Rome held so even though on the same day the Court decided in City of Mobile v. Bolden that the Fifteenth Amendment only prohibits “purposeful discrimination.” In other words, even though Bolden refused to find a Fifteenth Amendment violation without evidence of discriminatory intent, Rome nevertheless permitted Congress to “prohibit changes that have a discriminatory impact.” Rome, then, allows Congress to protect voting rights against practices that would not themselves violate the Constitution, setting a deferential standard for reviewing laws enforcing the Fifteenth Amendment.

If there is an argument that Rome and South Carolina no longer control, it presumably would rely on City of Boerne v. Flores. Under Boerne, when Congress legislates to enforce the Fourteenth Amendment, it may not create new rights or expand the scope of existing rights. Rather, Congress’s legislation must be “congruent” and “proportional” to the constitutional violation it seeks to remedy.

Given that the Constitution stipulates Congress’s powers to enforce the Fourteenth and Fifteenth Amendments in nearly identical language, Boerne arguably informs the scope of Congress’s Fifteenth Amendment enforcement authority. To this extent, Boerne may call Rome into question. Accordingly, one might argue that because Bolden held that the Fifteenth Amendment only prohibits “purposeful discrimination,” Congress lacks the authority to prohibit changes that have only a discriminatory impact. On this view, a statutory results-based test would flunk Boerne’s congruence-and-proportionality requirement.

The Court, however, has not extended Boerne to the Fifteenth Amendment. Rome, therefore, remains good law. Indeed, Boerne itself approvingly cited precedent acknowledging “the necessity of using strong remedial and preventive measures to respond to the widespread and persisting deprivation of [voting] rights.” Boerne, in other words, acknowledged the VRA’s constitutionality.

To be sure, when the Court invalidated the VRA’s preclearance process in Shelby County v. Holder, it argued that voter discrimination is no longer a serious problem. It is therefore possible that the Court would find that today’s facts also no longer justify VRA § 2. The Court, however, has not done so.

Such a holding, indeed, would be hard to justify given that § 2 litigation is only successful if a jurisdiction makes racially discriminatory election changes. In other words, whereas Shelby County faulted VRA § 5 for applying to some jurisdictions that no longer practiced discrimination, § 2 only burdens jurisdictions that actually practice discrimination. Section 2, therefore, should fit within Congress’s remedial authority even under Boerne’s more stringent test.

Moreover, given the Fifteenth Amendment’s narrow focus on racial discrimination in voting, it makes sense that Congress’s power to enforce it would be broader than its power to enforce the Fourteenth Amendment. Because the Fourteenth Amendment extends to numerous topics, the Court is wary of construing Congress’s enforcement powers too broadly. If Congress had expansive authority to enforce the Fourteenth Amendment, its reach would include many topics traditionally left to the states. By contrast, Fifteenth Amendment enforcement power encompasses one subject: racial discrimination in voting. There’s a good argument, then, that Boerne ought not apply to the Fifteenth Amendment at all.

Finally, a separate line of precedent confirms that Article I’s Elections Clause gives Congress sweeping authority to regulate federal elections. In Arizona v. Inter Tribal Council of Arizona, Inc., Justice Scalia, usually a strong supporter of states’ rights, penned a majority opinion emphasizing the Clause’s “broad” substantive scope. Quoting a nineteenth century precedent, Justice Scalia wrote, “The power of Congress over the ‘Times, Places and Manner’ of congressional elections ‘is paramount, and may be exercised at any time, and to any extent which it deems expedient; and so far as it is exercised . . . the regulations effected supersede those of the State which are inconsistent therewith.’” Thus, Inter Tribal Council, provides yet further doctrinal support for the VRA’s constitutionality, at least in the context of federal elections.

ii. Past Practices and Pragmatism

Pragmatic arguments also militate in favor of § 2’s constitutionality. Quite simply, when the federal government does not protect minority voting rights, some jurisdictions make voting harder for racial minorities. Whereas past practices in the administrative law context confirm that delegations of agency authority and power have long been considered constitutional, in the voting rights context, they demonstrate the continuing need for a robust VRA.

The VRA halted facially neutral laws that southern whites systematically used to disenfranchise Black people or dilute the power of Black voters. However, as Orville Burton puts it, “[T]he victories of the Voting Rights Act are far from complete.” A brief history of voting regimes since Shelby County in 2013 helps prove the point. Before that decision, the VRA required covered jurisdictions (i.e., jurisdictions with a history of voting discrimination) to request permission from the Department of Justice (DOJ) or a federal judge before instituting changes to their election processes. The idea was that covered jurisdictions would think twice before enacting changes that disadvantaged minority voters. If they did institute such changes, the DOJ or a judge could block them before they took effect.

After Shelby County effectively killed this preclearance process, some jurisdictions immediately made changes that disadvantaged minority voters. Within hours of the Supreme Court’s decision, Texas put into effect a law that a federal district court had previously denied preclearance because of its potential to harm minority voters. Within months, other states—including Alabama, Virginia, North Carolina, and Mississippi—had themselves passed similarly problematic measures.

Without preclearance, VRA § 2 remains even more vital. To be sure, § 2 litigation is expensive and cumbersome; the VRA is not as strong without preclearance. Nevertheless, while § 2 litigation is unlikely to address all practices that limit voting rights, courts have still used § 2 after Shelby County to invalidate laws burdening the right to vote. As a practical matter, then, § 2 is the lone surviving statutory bulwark against voter suppression.

Finally, it is worth emphasizing other practical reasons why courts should take seriously § 2’s “results in” language. It can be impossible to prove that state voting rules are intentionally discriminatory, even if they in fact are. Evidence is usually messy, and legislators know enough to hide invidious intentions. Judges also are often reluctant to tar public figures with the “brush of bigotry,” given that they inhabit the same social and professional circles. Disparate-impact standards, thus, help guard against intentional but well concealed discrimination. They also can address discrimination that may be very real but not apparent to the ruling class. In light of these practical realities, VRA § 2 is constitutional because it is necessary to achieving the Fifteenth Amendment’s promise.

iii. Structure

Conservatives sometimes object to a robust VRA § 2 on the grounds that it offends federalism. However, like the separation-of-powers concerns discussed above, the federalism anxieties here are inchoate; the Court never links them concerns to specific constitutional provisions. Its objections instead are an example of what John Manning has called “freestanding federalism,” an amorphous yet vigorous theory of states’ rights that transcends the Constitution’s text.

The Fifteenth Amendment, indeed, undermines the structural argument against the VRA. It forbids states from denying or abridging the right of U.S. citizens to vote “on account of race.” Section 2 of the Amendment further empowers Congress to enforce the Amendment. The structural argument against the VRA would read this Amendment out of the Constitution.

Moreover, as noted above, Article I’s Elections Clause also grants Congress very broad authority to regulate federal elections. While that provision grants state legislatures the authority to prescribe the times, places, and manners of federal elections, it also provides that “Congress may at any time by Law make or alter such Regulations.” Here too, the Constitution clearly confers upon Congress the authority to regulate federal elections within the states. The argument that the VRA offends the Constitution’s structure, then, is weak.

iv. Originalism

Original public meaning does not help the conservative argument here either. The Fifteenth Amendment’s original public meaning empowers Congress to protect against racial discrimination in voting. As we have seen, § 1 stipulates that “[t]he right of citizens of the United States shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” The language protects not only against outright denials of the right to vote but also more modest “abridgements.”

Section 2 of the Amendment provides that “Congress shall have power to enforce this article by appropriate legislation.” As noted above, the term “appropriate” referenced the Supreme Court’s decision in McCulloch v. Maryland, which broadly interpreted Congress’s power to legislate under the Necessary and Proper Clause. To understand the original language, we must take seriously this reference to McCulloch. The Fifteenth Amendment’s original public meaning, then, confers upon Congress broad authority to ensure that states and localities do not restrict voting rights on the basis of race.

The original intent behind the Fifteenth Amendment is admittedly more equivocal. Republicans supported the Fifteenth Amendment for a variety of reasons. Some believed Black soldiers’ sacrifices during the Civil War merited suffrage. Others were convinced that Black men were crucial to their future electoral prospects, especially after the surprisingly close election of 1868. Southern white Democrats mostly did not object for strategic reasons because the Reconstruction Acts had already granted African Americans voting rights in most of the former Confederacy. By contrast, Northerners and Westerners were often hostile to the proposal because they wanted to keep disenfranchising unpopular groups, such as people of Chinese and Irish descent.

The proposed Fifteenth Amendment went through multiple iterations. Some early versions included more sweeping protections for voting rights, such as universal manhood suffrage. In the end, though, only a more limited amendment garnered the necessary support.

People in 1868 recognized that the Amendment opened the door to literacy tests, grandfather clauses, and other devices that could be used to disenfranchise African Americans and other racial minorities. This history might cut against a robust Fifteenth Amendment today. There is a non-frivolous argument that only modest voting rights protections survived the onerous amendment process.

That said, even if § 1’s protections are limited, § 2 still granted Congress broad authority to legislate in the field. Indeed, the likely original understanding was that Congress, rather than the Judiciary, was to take the lead in enforcing the Reconstruction Amendments, including protecting against racial discrimination in voting. Section 2 of the Thirteenth Amendment, then, empowers Congress to legislate voting protections where § 1 falls short. In all events, though complicated, the historical record hardly overrides Congress’s repeated judgments that the VRA is both necessary and constitutional.

2. Debunking the Court’s Secondary Constitutional Conceits

Just as the primary conceits driving these decisions are legally weak, so too are the secondary conceits. This subsection briefly debunks the individual rights and democratic accountability conceits that also informed the Court’s decisions.

a. Debunking the Court’s Individual-Rights Conceits

Individual rights ideas play a background role in NFIB and West Virginia, but current doctrine would not vindicate individual rights claims. Some Justices in NFIB intimated that a vaccine mandate implicated Fourteenth Amendment liberties. Under current doctrine, however, the OSHA COVID policy does not violate substantive due process. For one, OSHA’s Standard was not a vaccine mandate. Even if it were, though, Jacobson v. Massachusetts upheld vaccine mandates against a Fourteenth Amendment challenge over a century ago.

While individuals typically do have a Fourteenth Amendment right to refuse medical treatment, the Court held that vaccination is different because it impacts entire communities. Jacobson explained that if each individual could opt out of a vaccination mandate, “the welfare and safety of an entire population [would be] subordinated to the notions of a single individual.” While a federal vaccine mandate arguably raises different issues than a state one, Jacobson makes clear such mandates do not create Fourteenth Amendment problems. Moreover, the Court had ample opportunity to revisit Jacobson during the COVID pandemic and did not.

Of course, narrower objections to vaccine mandates might be successful, especially Free Exercise challenges. NFIB, though, was not a Free Exercise challenge. The conservative Justices’ more general individual rights concerns about vaccination mandates in NFIB, then, were not grounded in contemporary constitutional law.

Individual rights objections to the Clean Power Plan also find no support in current law. Under a Lochner v. New York-style substantive due process, perhaps such environmental regulation might interfere with a power plant’s liberty to run its business. Of course, West Coast Hotel v. Parrish buried Lochner in 1937. Since then, the Court has reviewed economic liberty challenges to regulations very deferentially. A Fourteenth Amendment liberty challenge to the Clean Power Plan, then, would find virtually no support in contemporary constitutional doctrine either.

b. Debunking the Court’s Democratic-Accountability Conceits

The Justices’ concerns about democratic accountability are likewise problematic. Justice Gorsuch’s discussions of accountability seemed to privilege majoritarian decisionmaking. However, this anxiety in the administrative agency context is inconsistent with the Court’s attitude toward voting rights in Brnovich. In that case, the Court rendered state legislatures less democratic by upholding laws making it harder for racial minorities to vote. In a different case, the Court was similarly insensitive to democratic-accountability concerns, finding partisan gerrymandering claims non-justiciable. As Brandon Johnson argues, “By failing to safeguard considerations of democratic accessibility in its election law jurisprudence, the Court undermines its stated goal of ensuring that voters can hold their elected policy makers accountable.”

This irony seems lost on Justice Gorsuch, who cited Justice Kagan’s Rucho v. Common Cause dissent objecting to the Court’s holding that partisan gerrymandering claims are nonjusticiable. In some cases, the conservative Justices celebrate the majoritarian virtues of the legislature. In others, they uphold election practices that compromise majoritarian decisionmaking.

Nor did the Court acknowledge the additional irony that the Justices themselves are unelected and unaccountable. Whatever their accountability shortcomings, administrative agencies are still more accountable than federal judges. Nevertheless, it is judges here who are making important policy determinations. These cases’ most significant accountability problem, then, is one of the Court’s own making.

C. Summary: Constitutional Conceits, Not Constitutional Law

It would be one thing if the constitutional principles driving the Court’s statutory interpretation in these cases reflected actual constitutional law. That, however, is not the case. To the contrary, the libertarian constitutional conceits in these cases find little support in contemporary constitutional doctrine. The Court, of course, could change constitutional law, as it has already done recently in several areas. However, the building blocks for such doctrinal transformations here are meager.

Indeed, the Court in these cases notably did not purport to revise constitutional law. Except for Justice Gorsuch’s concurrences, the Justices mostly avoided constitutional arguments. Instead, they gestured towards amorphous constitutional ideas without offering constitutional reasoning.

What should we make of opinions that rely heavily on constitutional principles that are assumed but not defended? One possibility is that the Justices thought it unnecessary to offer constitutional elaborations in statutory cases. Perhaps . . . but this explanation isn’t terribly persuasive given the centrality of constitutional concepts to these atextual statutory decisions.

Another possibility is that the Justices believed their statutory interpretations vindicated under-enforced constitutional norms. That, however, is not what the Court claimed to be doing, and that position would have been a strange one for textualist Justices to take. Protecting ostensibly under-enforced constitutional norms through statutory interpretation also runs the risk of over-enforcement, a concern that at least Justice Barrett has recognized.

Perhaps the most convincing explanation is that these opinions reflected the points on which the conservative Justices could agree. Maybe some of the conservative Justices (presumably Justices Thomas, Alito, Gorsuch, and possibly Barrett) would be willing to reinvigorate the nondelegation doctrine to invalidate broad statutory delegations to agencies. Other conservatives (most likely Chief Justice Roberts and Justice Kavanaugh) share the intuition that agencies sometimes act too ambitiously but are unwilling to sign onto such an aggressive constitutional holding. One might imagine a similar split among the conservatives about the VRA’s meaning and constitutional legitimacy. The instant decisions, on this account, may have reflected the compromises inherent in the opinion writing process.