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August 15, 2022

San Francisco is About to Change Dramatically -- Whether it Wants to or Not

[Cross-posted from the San Francisco Chronicle]

By Christopher Elmendorf

If anything defines the spirit of San Francisco, it’s the idea of doing things our own way. Immigrants, hippies, financiers, technologists, the LGBTQ community: Generation after generation, people with a vision for doing something differently and better, or simply for being different, have alighted here.

Doing things your own way can be great; our city has often been a haven for compassion and acceptance. But not always — and there’s nowhere we see that more profoundly than with land use.

 

San Francisco stands alone in making every permit for a land-use change subject to discretionary review. This means that anyone who doesn’t like a project can demand a hearing, and city officials may reject the project for any reason, regardless of applicable standards. And only San Francisco would be so bold as to post a self-study acknowledging its noncompliance with state permitting law — and then do nothing about it for the next two decades. And what other city would respond to a state mandate to plan for 10,000 new homes a year from 2023-2030 by submitting a plan for 5,000 homes a year by 2050?

 

The results indict the San Francisco way:

 

Our city has the second highest rents in the nation. Housing production has nearly ground to a halt. We have been so determined to “capture value” from new development — with impact fees, affordable housing requirements, costly building standards, labor mandates and more — that virtually all potential housing projects in the city have become economically infeasible to build. An investor who buys a dilapidated single-family home or warehouse in San Francisco can make a lot more money flipping it or selling it to Amazon than redeveloping the site for apartments. The city’s own studies point this out.

 

Thus, we have homeless encampments, innovative firms disembarking for cheaper markets, rents that only the fattest-salaried professionals can afford, gentrification of working-class neighborhoods, the displacement of the city’s African American population and an underclass of super-commuting service workers who make grueling daily drives from the Central Valley.

 

But this week marks a turning point.

 

On Monday, Gov. Gavin Newsom’s Department of Housing and Community Development released a devastating review of San Francisco’s draft “housing element” — a required 8-year plan through which cities show how they’ll accommodate their share of regionally needed housing. As a consequence, San Francisco will be subject to the state’s very first housing policy review, “aimed at identifying and removing barriers to approval and construction of new housing.”

 

What happens if San Francisco doesn’t get its act together?

 

For starters, the state will decertify the city’s housing element, which would cut off various streams of state funding, including for affordable housing. More dramatically, it would empower a “builder’s remedy” under state law that would allow developers of affordable and moderate-income housing to bypass city zoning codes. There are unresolved questions about how this will work in practice, but a San Francisco without an approved housing plan could be San Francisco in which new apartments are allowed to pop up helter-skelter throughout the city. Ultimately, courts could rewrite the city’s master plan for housing, exercising judicial authority conferred by a bill signed into law that City Attorney David Chiu authored when he served in the Legislature.

 

If city officials want to avoid this fate, a few things are now reasonably clear. First, San Francisco has just two years to come into compliance with state permitting law. This will require serious changes to standard operating procedures at the planning and building departments.

 

Second, any approved housing element will be an ongoing contract with the state, one with clear performance benchmarks and pre-specified consequences if the city comes up short.

 

Here’s an example: The city’s draft housing element tried to minimize the need for upzoning and regulatory reform by forecasting that the “pipeline” of already-proposed-but-not-fully-permitted-or-built projects will gush an unprecedented fountain of new homes — roughly doubling the city’s annual rate of housing production. This comes at a time when developers are abandoning projects left and right. Moreover, UC Berkeley data scientist David Broockman ran the numbers and found that San Francisco’s pipeline guesstimate vastly exceeds historical yields.

 

The state housing department’s review letter rightly asks what evidence supports the city’s magical projection. But more importantly, it told San Francisco to put a circuit breaker in its housing element, so that if the pipeline’s flow falls short of projections, the city will allow (for example) larger buildings to be developed citywide. A circuit breaker won’t work, however, if it merely triggers years of exhaustive environmental study followed by a vote on rezoning. San Francisco needs to decide now what the circuit breaker will do and allow it to operate on autopilot.

 

Third, the review letter hones in on the cumulative effect of San Francisco’s zoning, permitting, fees and all the other requirements the city heaps on new development. San Francisco won’t be able to get its housing element approved unless it realistically commits to making 80,000 new homes economically feasible to develop over the next eight years.

 

San Francisco can go its own way in deciding which regulatory requirements to roll back first. Should it be impact fees for public art or affordable housing mandates? But the bottom line must be a regulatory environment in which building new apartments and condos is more appealing than flipping existing single-family homes.

 

San Francisco will remain a special place. No one wants to change that. We will continue to be inventive, wacky, dreamy, different. But many more people will be able to share in it and call our city home. Thanks in advance, governor.

August 15, 2022

John Fetterman is Running a Test that Democrats Need to Watch

[Cross-posted from Politico]

By Lisa R. Pruitt

It’s no secret that Democrats have a rural problem. The party’s share of the rural vote had been shrinking for decades even before Donald Trump arrived on the scene, deftly tapping into rural and working-class discontent and dragging levels of Democratic support to new lows in nonmetropolitan places.

Even as Trump’s popularity has waned among some demographics, Democrats have shaved little off the GOP’s rural margins. Indeed, few Democratic campaigns seem to have tried to claw back rural ground, with many candidates appearing simply to cede the rural vote to the MAGA crowd. As most candidates for state-wide office continue to put all their eggs in the urban and suburban voter basket, rural Democratic organizers and operatives from North Carolina to Texas to Arizona to New York complain about state party failures to enhance their rural infrastructure and initiatives.

As a scholar who studies rural people and places, I’ve noticed one Democratic candidate who defies this trend. While consultants and organizers talk about the need for rural talking points and investments in rural newspaper and radio buys, this politician has deployed the most obvious strategy for making inroads with rural voters: He showed up in every county in his state.

Then, he did something really remarkable: He showed up again.

That candidate is John Fetterman, who secured the Democratic nomination for U.S. Senate in Pennsylvania’s May primary with a robust 59 percent of the vote and currently holds the lead in general election polling.

Fetterman lived up to his “Every County, Every Vote” slogan. On a single Saturday in early May, for example, he visited five counties in north-central Pennsylvania, part of the state’s “rural T” — the vast area which form a big “T” on the map between the Philadelphia and Pittsburgh metro areas and north to the New York state line.

Ten days later, in spite of a stroke that hospitalized him just a few days before the primary, Fetterman carried all 67 counties in the Democratic primary. In doing so, Fetterman didn’t just attend to the rural, he attended to what he often called the “ruby red” parts of the Keystone State. Trump carried all five of the counties Fetterman visited on that day in early May — Clinton, Potter, Tioga, Bradford and Northumberland — and he did so with at least 65 percent of the vote. In Potter County, four of five voters picked Trump. Many Democrats might see those counties as a waste of time, but in the primary, at least, showing up worked for Fetterman: He got 77 percent of the vote.

Fetterman is hardly the first Democratic candidate to make a show of an every-county tour. Indeed, it used to be the norm. When I was growing up in rural Arkansas in the 1970s and 80s, I recall Gov. Bill Clinton passing through my hometown each election cycle. (My family reminisced fondly for years about the day my sister, a teenaged waitress at Pearl’s Café, served Clinton coffee and a slice of pie.) Clinton showed up even though my county was home to a measly 8,000 folks, of whom less than a few thousand voted. It’s just how retail politics was done back in the day.

More recently, Beto O’Rourke conducted a 254-county campaign in 2018 when he ran against Ted Cruz for a U.S. Senate seat from Texas. O’Rourke lost, but by just 3 percent, and he and his running mate for lieutenant governor are now going out of their way to show up in the Lone Star State’s rural reaches. Likewise Chris Jones, Democratic nominee for governor of Arkansas, is on a 75-county tour of the Natural State as he challenges the Republican heir apparent, Sarah Huckabee Sanders.

But Fetterman may be the first candidate in recent memory to have visited each county in his state not once, but twice. When Fetterman became Pennsylvania’s lieutenant governor in 2019, he undertook a 67-county listening tour about cannabis legalization. Columnist Will Bunch of the Philadelphia Inquirer suggests this laid the groundwork for Fetterman’s widespread popularity, observing that when Fetterman returned to each county as a candidate for Senate, “he was shrouded in the purple haze of a political rock star.”

Fetterman’s primary strategy was, of course, the very antithesis of New York Sen. Chuck Schumer’s dismissal of a voting bloc Democrats used to rely on: “For every blue-collar Democrat we lose in western Pennsylvania,” Schumer said, “we will pick up two moderate Republicans in the suburbs in Philadelphia.” That was in the summer of 2016, and the senator was soon proved wrong. Pennsylvania was credited (or blamed, depending on your politics), along with Michigan and Wisconsin, with Hillary Clinton’s loss of the presidency. Trump beat her by about 44,000 votes in 2016 to win Pennsylvania’s 20 Electoral College votes. (Biden, who often referenced his scrappy Scranton roots, recovered in 2020 with a slightly wider margin of victory, 81,000 votes.)

The attention a high-profile candidate like Fetterman has paid to rural areas of his state may begin to ease the rural inferiority complex that’s been festering for decades, as rural economies have stagnated, small towns have lost population and country folks have become the butt of jokes. One 27-year-old woman in Westmoreland County, part of the Pittsburgh metropolitan area that struggles against the “Pennsyltucky” stereotype, praised Fetterman for showing up and speaking bluntly. “We’re not just silly hillbillies,” she told a New York Times reporter.

Fetterman has serious street cred when he speaks about crummy job markets and regional inequalities that bog down many nonmetro communities. Before seeking statewide office, he served for 13 years as mayor of Braddock, a down-and-out city of 1,721 near Pittsburgh. Fetterman has continued to live in Braddock — with his family, in a converted car dealership — even after he was elected lieutenant governor in 2018.

Issues of place — what rural sociologists call uneven development or spatial inequality — have long been front and center for Fetterman, as in his 2018 response to the Ballotpedia survey, “I am most passionate about policies that help our forgotten communities.” Fetterman’s wife, Gisele, struck a similar chord on the night of his primary victory. “This race we’re running, it’s a race … for every small town, for every person who calls those small towns home and for every person who’s considered leaving because they didn’t see enough opportunities.”

Many Pennsylvanians are presumably drawn to Fetterman’s everyman persona. He wears hoodies and gym shorts on the campaign trail, speaks Pennsylvania vernacular including “yinz” and “youse,” and “Stillers” and “Birds.” Even his long-time failure to look after his health — the cause of his stroke — is something many rural voters can relate to as rural hospitals close and health care gets harder to access. That’s on top of the rugged, self-sufficient mindset associated with rural culture that leads many — especially men — to forego medical care.

Fetterman doesn’t try to sound like a Republican. His policy positions are left of center—sometimes pretty far left of center — on everything except fracking, which he supports. He favors criminal justice reform, raising the minimum wage, supporting the LGBTQ community, and legalizing “dreamers.” He’s even in favor of abolishing the filibuster if that’s what it takes to advance a progressive agenda.

When it comes to abortion rights and unions, Fetterman has been known to use the word “sacred,” and he has been particularly vocal since the Supreme Court overturned Roe v. Wade in June. When it comes to unions, even Fetterman’s dogs — with their own Twitter account — have gotten in on the action, expressing excitement about the unionization of Pittsburgh area Starbucks stores:

Given that some of these positions — especially those on social and cultural issues — surely rankle Pennsylvania’s rural moderates, Fetterman’s popularity has probably risen not because of his stances, but rather in spite of them.

It may be that Fetterman’s personal appeal permits him to move the needle on voters’ political stances, pulling them along with his agenda. Fetterman may be to white working-class and rural voters in Pennsylvania what Michigan State Sen. Mallory McMorrow is to suburban moms: the politician whose conviction, leadership and relatability brings others along on progressive positions, e.g., support for LGBTQ youth, that might otherwise give those voters pause, or cause them to balk outright. “If John Fetterman believes it,” they may reason, “I’ll give it some thought. Maybe he’s got a point.”

Whatever happens in the general election, Fetterman’s rural success in the primary raises the question: Why aren’t more Democratic candidates pursuing rural voters like Fetterman has?

Politicians and political consultants offer several excuses. There’s the discomfort candidates, as well as their staff, may feel when going into presumptively hostile territory. Some Democrats assume rural America’s a lost cause, not only because rural folks lean Republican, but also because of an assumption that they are yesterday’s news, with little to contribute to the 21st century economy.

Plus, there’s a widespread assumption that campaigns just don’t get enough bang for their buck in rural places, where door knocking is inefficient because houses are scattered across the countryside rather than clustered along walkable streets. It’s the same urban-centric thinking that keeps all sorts of institutions from investing in rural people and places: a belief you don’t get a high enough return on investment where you can’t achieve economies of scale.

If Fetterman had bought that line of thinking, none of the places he visited on Saturday, May 7 would have been deemed worth his time. None has more than 10,000 residents, and three have populations hovering around just 3,000. All are in nonmetro counties, defined as fewer than 100,000 residents. Wouldn’t Fetterman have been wiser to spend that day in one of the state’s metropolitan areas, where critical masses of voters reside? After all, to make those five stops, Fetterman spent more than five hours driving 245 miles to get from one town to the next. And that doesn’t count the three hours it took him to travel each way from his Braddock home to this part of north central Pennsylvania. How many voters did Fetterman reach on those nonmetro appearances, conventional political wisdom might ask? Did he convert any voters who weren’t already in his camp?

Fetterman apparently wasn’t thinking about it that way. He’s running for state-wide office, which means that there are no gerrymandered districts to fall back on and a rural vote counts as much as an urban or suburban one. By visiting rural areas, the signal Fetterman sent to all rural Pennsylvanians — all “red” Pennsylvanians — is a powerful one. He saw them. He invested his time and energy in them, thus responding to a perennial rural complaint that politicians — and mainstream society generally — forgets or neglects them.

It’s clear that this worked in the primary, and the question is whether that success will carry through to the general election. The truth is that in statewide races, rural voters can provide Democrats a margin of victory even if their town or county is ruby red. This was evident in Terry McAuliffe’s failed campaign for Virginia governor in 2021. McAuliffe didn’t connect with rural voters, and he lost badly in nonmetro counties — the areas referred to as “ROVA,” meaning the “rest of Virginia.” Both the term ROVA — treating rural as remainder after that which really matters — and McAuliffe’s neglect of rural voters suggests an urban dismissiveness of the rural. (He believed he had solidly blue NOVA, or Northern Virginia, stitched up.) It’s an attitude that permitted Glenn Youngkin to gain the governor’s mansion; Youngkin outperformed Trump’s 2020 numbers in rural places, giving him an edge McAuliffe could not overcome when he got less suburban support than he’d anticipated.

Fetterman, similarly, will have to rack up huge margins in Philadelphia and Pittsburgh if he doesn’t chip away at Republican dominance in the hinterlands. It’s even possible that his strategy to cultivate support from across the state may be an added attraction to progressive metro voters; after all, the every-county approach has a unity vibe that may appeal to folks all along the rural-urban continuum.

Indeed, the election outcome could turn on mid-sized metropolitan counties like York (where Fetterman grew up) and Lancaster, where tens of thousands of votes are at stake. Those counties, considered part of the neglected “T” because they’re not Pittsburgh and Philly, were the last two places Fetterman visited before his stroke. More than 64,000 Democratic votes were cast in York and Lancaster counties combined in the primary. That’s more than the margin of Hillary Clinton’s 2016 Pennsylvania loss. Fetterman carried those counties with 80 percent and 76 percent, respectively, of the Democratic vote.

Fetterman still has his work cut out for him, of course. A national survey in February showed that two out of three rural voters view the Democratic Party unfavorably. Fetterman’s opponent, Republican nominee Mehmet Oz (television’s “Dr. Oz”), thus has some ready-made traction in the state’s rural reaches because of the “R” by his name on the ballot. There’s also the matter of Trump’s endorsement of Oz, though Oz has recently been distancing himself from the former president.

With Fetterman still recovering from his stroke, he’s unlikely to get back to each of Pennsylvania’s counties before November. But it probably doesn’t matter. Fetterman has already accumulated critical capital in the “T”, which may be enough to counter the toxic “D” by his name. And his unconventional rural strategy — as much as his unconventional persona — could help give him the “W” in a tight race, one with huge national implications for the balance of the Senate.

July 22, 2022

How the Anti-Abortion Movement Remade America

[Cross-posted from Commonwealth Club Podcast]

UC Davis Professor of Law Mary Ziegler is one of the world’s leading authorities on the U.S. abortion wars and the history of reproductive rights in this country. Since the leak of a draft of a Supreme Court majority opinion that would overturn Roe v. Wade and the guaranteed right to an abortion, Ziegler has been one of the most sought-after experts on this issue.

Ziegler's timely new book Dollars for Life: the Antiabortion Movement and the Fall of the Republican Establishment, explores how the antiabortion movement remade the Republican Party and led to this current historic moment. She traces how the anti-abortion movement helped to revolutionize the rules of money in U.S. politics and persuaded conservative voters to focus on the federal courts. Ziegler offers a surprising new view of the slow drift to extremes in American politics and says it had everything to do with the strange intersection of right-to-life politics and campaign spending. Her previous books have explored the legal history of Roe v. Wade and the role of privacy rights in the abortion debate.

At a historic time that might mark a turnaround in abortion rights, The Commonwealth Club is pleased to host a true expert on the topic and this historic moment. You won't want to miss this important conversation. LISTEN to the episode.

SPEAKERS

Mary Ziegler

Professor of Law, UC Davis School of Law; Author, Dollars for Life: the Antiabortion Movement and the Fall of the Republican Establishment

Vikrum Aiyer

Member, Inforum Advisory Board—Moderator

July 14, 2022

Systemic Racism in the U.S. Immigration Laws

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

In 1998, the Indiana Law Journal published my analysis of race and the U.S. immigration laws.  The Journal just published my latest article on the topic.  (A teaser for the article can be found here.).  The article is based on, and inspired by, my remarks in April 2021 at the Jerome Hall Lecture at Indiana University Maurer School of Law
 

This Essay analyzes how aggressive activism in a California mountain town at the tail end of the nineteenth century commenced a chain reaction resulting in state and ultimately national anti-Chinese immigration laws. The constitutional immunity through which the Supreme Court upheld those laws deeply affected the future trajectory of U.S. immigration law and policy.

Responding to sustained political pressure from the West, Congress in 1882 passed the Chinese Exclusion Act, an infamous piece of unabashedly racist legislation that commenced a long process of barring immigration from all of Asia to the United States. In upholding the Act, the Supreme Court in an extraordinary decision that jars modern racial sensibilities declared that Congress possessed “plenary power”—absolute authority—over immigration and that racist immigration laws were immune from judicial review of their constitutionality.

The bedrock of U.S. immigration jurisprudence for more than a century and never overruled by the Supreme Court, the plenary power doctrine permits the treatment of immigrants in racially discriminatory ways consistent with the era of Jim Crow but completely at odds with modern constitutional law. The doctrine enabled President Trump, a fierce advocate of tough-as-nails immigration measures, to pursue the most extreme immigration program of any modern president, with
devastating impacts on noncitizens of color.

As the nation attempts to grapple with the Trump administration’s brutal treatment of immigrants, it is an especially opportune historical moment to reconsider the plenary power doctrine. Ultimately, the commitment to remove systemic racism from the nation’s social fabric requires the dismantling of the doctrine and meaningful constitutional review of the immigration laws. That, in turn, would open the possibilities to the removal of systemic racial injustice from immigration law and policy.

July 11, 2022

Deconstructing the Supreme Court's Climate Change

[Cross-posted from the Daily Journal]

By Richard M. Frank

The Supreme Court's recent climate change decision has been characterized by legal observers as "seismic" "transformational" and "a bombshell." All of those descriptions are apt.

The Court's 6-3 ruling holds that the U.S. Environmental Protection Agency lacks authority under the federal Clean Air Act to transition existing American power plants from fossil fuels to natural gas and, especially, to renewable energy sources. The decision will not have an immediate, dramatic effect. But long-term, the Court's ruling in West Virginia v. EPA, June 30, 2022 Daily Journal D.A.R. 6892, will severely cripple the federal government's ability to reduce America's greenhouse gas emissions and fulfill President Joe Biden's 2021 pledge to the world community that the U.S. will meet aggressive GHG reduction goals. And the new, radical constitutional doctrine the Court majority announces in rejecting EPA's GHG emission regulations promises to severely hamstring a wide array of federal regulatory agencies beyond EPA, and effectively to transfer considerable authority from the Executive Branch to the federal courts.

The West Virginia case has its origins in efforts by the Obama Administration to curb GHG emissions from "stationary sources" such as power plants. President Barack Obama's EPA promulgated its "Clean Power Plan" (PP) in 2015 to reduce substantially GHG emissions from American power plants the second largest contributor to the nation's overall GHG emissions output (behind only the transportation sector). Invoking CAA section 111(d), EPA proposed a complex set of regulatory mandates: some designed to improve pollution control technology of individual power plants and, far more controversially, industrywide reforms "beyond the fence line" to incentivize transition of coal-fired power plants to natural gas and ultimately, renewable energy sources.

EPA's CPP never took effect. The power industry, coal companies and a coalition of 27 "red" states immediately sued to halt its implementation. Remarkably - and in an unprecedented action - the U.S. Supreme Court in 2016 issued a "Shadow Docket" order preventing the CP from taking effect, before the lower federal courts even had an opportunity to consider its legality after full briefing and oral argument.

At that point, politics intervened. After the Trump Administration took office in 2017, it asked and the D.C. Circuit Court of Appeals agreed to hold the litigation in abeyance while the Trump EPA reconsidered the CPP. In 2019, the Trump Administration ultimately repealed the CPP, declaring that it exceeded EPA's legal authority under the CAA. In doing so, Trump's EPA advanced a novel constitutional doctrine long advocated by conservative scholars and law firms such as the Pacific Legal Foundation: the so-called "major questions doctrine." Under that theory, the Trump Administration argued, courts "expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance." The CPP, adopting an industry-wide approach to wean the power industry off its historic reliance on coal and natural gas in favor of renewable energy sources, presents such a "major question," asserted the Trump Administration. And, it maintained, in enacting CAA section 111(d) in 1970 Congress had not "spoken clearly" to delegate to EPA the regulation of GHG emissions in such a sweeping manner.

"Blue" states, including California, and environmental organizations promptly sued to challenge the Trump Administration's revocation of the CPP. Of critical importance, the red states that had previously challenged the Obama Administration's CPP intervened in the new lawsuit to help defend the Trump EPA's recission of the CPP. In early 2021 - on the last full day of Trump's term in office - the D.C. Circuit invalidated the Trump EPA's revocation of the CPP. It is from that ruling that the intervenor red states successfully sought review in the Supreme Court.

On the final day of the Court's just-concluded term, the Court ruled that the CPP was not authorized under the CAA. Chief Justice John Roberts majority opinion on behalf of the Court's 6-member conservative bloc first summarily rejected the Biden Administration's argument that certiorari had been improvidently granted: Biden's Solicitor General had advised the Court that it had no intention of restoring the CPP, and instead planned to develop its own regulatory program to reduce GHG emissions from U.S. power plants.

Turning to the merits, Chief Justice Roberts began by embracing the "major questions doctrine" that the former Trump Administration and its red state allies had advocated. West Virginia is, in fact, the first formal decision in Supreme Court history to explicitly adopt that principle. (The Court had alluded to the doctrine in a couple of earlier, per curiam orders issued in cases striking down the Biden Administration's COVID- prompted eviction moratorium and vaccination mandate for federal employees.)

Roberts proceeded to conclude that the federal government's efforts to comprehensively regulate GHG emissions from U.S. power plants have "vast economic and political significance;" that Congress, in enacting section 111(d) of the CAA, had not clearly indicated its intent to apply its delegated statutory authority to encompass industrywide power plant GHG reduction efforts by EPA; and that the relevant provisions of the CP therefore exceed EPA's statutory authority under the CAA and the majority's newly-minted major questions doctrine.

Justice Gorsuch penned a noteworthy concurring opinion, applauding the Court's support of the major questions doctrine and urging federal courts to apply it prospectively in a muscular fashion to curb perceived excesses of the federal administrative state." It will be interesting to see how many other members of the Court's conservative wing similarly embrace such an expansive application of the doctrine prospectively.

Justice Elena Kagan (joined by Justices Stephen Breyer and Sonia Sotomayor) issued a lengthy, pointed and to this observer - persuasive dissent. She castigated the majority's adoption of the major questions doctrine as an unprincipled creation by conservative justices who profess their belief in judicial restraint and a textual application of the Constitution. Kagan's dissent went on to analyze in considerable detail how and why EPA's interpretation of CAA section 111(d) is fully consonant with Congress' intent and delegated authority to EPA.

So, what are the short- and long-term implications of the Supreme Court's West Virginia v. EPA decision?

In the short term, it's back to the climate change drawing board for the Biden Administration. EPA was already exploring how to regulate GHG emissions from stationary sources under the CAA before last week's Supreme Court decision. President Biden has directed his EPA and Justice Department to confer on West Virginia's impact and return to the Oval Office with recommendations as to how to proceed. (One intriguing potential option is to utilize section 115 of the CAA; that provision allows EPA to regulate pollution emitted from U.S. sources that endangers public health and welfare in foreign nations. GG emissions would certainly seem to qualify.)

But let's be clear: West Virginia severely constrains the Biden Administration's regulatory options: the decision makes clear that EPA lacks the authority under CAA section 111(d) to regulate the power industry's GHG emissions on an industrywide, "outside the fence line" basis.

That leads to the related but important question: what about pursuing new climate change legislation from Congress? The short answer is that that's not going to happen in the foreseeable future. Climate change is only one of many issues on which Congress is hopelessly deadlocked and deeply factionalized. The justices, of course, know this as well as anyone.
So the majority's suggestion that Congress can simply resolve the issue by clarifying the CAA or enacting new climate change litigation is disingenuous.

Leaving aside the CAA and climate change, the majority's formal articulation and embrace of the major questions doctrine has profound, long-term implications for American constitutional and administrative law. It seems inevitable that the doctrine will be invoked in virtually every major litigation challenge to future federal regulatory initiatives - not just environmental programs, but also in public health, financial, civil rights, election, taxation and numerous other regulatory contexts. Among the biggest ambiguities created by West Virginia is what, exactly, makes a particular federal regulation sufficiently important, or "major," so as to trigger application of the doctrine? As Justice Kagan's dissent observes, the majority's option does not provide any real guidance.

Moreover, and especially in light of Congressional gridlock and political stalemate, the West Virginia decision significantly enhances the power of the federal judiciary at the expense of the Executive Branch. Without explicitly saying so, the case severely erodes separation of powers principles that the Constitutional framers considered so essential to the success of American democracy.

Finally, and ultimately most significantly, the West Virginia decision seriously undermines America's ability to reduce its disproportionately large share of global GHG emissions. As a result of the Court's decision, it's highly unlikely that the United States will be able to meet the ambitious GHG reduction goals President Biden pledged to meet at last year's global climate summit in Glasgow. That, in turn, greatly diminishes America's future ability to play a leadership role in the greatest environmental challenge of our time. And, worse still, it undermines the ability of the global community as a whole to prevent a climate catastrophe.

July 11, 2022

Constitutional Obligations as a Counter to Zero-Sum Thinking

[Cross-posted from The Hill]

By Alan Brownstein

The Constitution is a legal document that structures government and protects rights. Sometimes overlooked, however, is the reality that it is also a statement of values and principles on which the structure of government and the protection of rights is based.

These values and principles are not law — but they can suggest non-legal obligations that the government owes to its citizens or that citizens owe to each other.

Sometimes the obligation is stated explicitly as the foundation for the protection of a right. For example, a few months ago a racist killer influenced by white supremacist ideology and so-called “replacement theory” massacred Black Americans at a super market in Buffalo, N.Y. We know from bitter experience that white supremacy and replacement theory leads to violence and murder. We know this. Yet our constitutional system prohibits government from suppressing such pernicious speech.

The First Amendment generally prevents government from prohibiting speech that may influence individuals to commit crimes — even horrible crimes like the massacre in Buffalo. As the Supreme Court made clear in the seminal case of Brandenburg v. Ohio, this kind of speech, characterized as incitement, can only be prohibited if it will lead to imminent violence or unlawful conduct. This is a bedrock First Amendment rule today. The speech that warped the mind of the murderer in Buffalo cannot satisfy this incitement test because it did not immediately result in violence.

It is important to understand the reasoning justifying this meaning of incitement which protects such evil speech. The principle underlying the Brandenburg rule imposes an implicit obligation on the State and the people, a principle that requires us to counter evil counsel as loudly and forcefully as we can.

As Justices Holmes and Brandeis wrote in dissenting opinions that eventually led to the Brandenburg decision, dangerous speech could only by suppressed by government if the violence and other unlawful conduct it is inciting is imminent. If there is time to counter and refute evil counsel before it leads to harm, the constitutionally appropriate remedy for bad speech is good speech — not the prohibition of speech.

Thus, the foundation of this key free speech doctrine is grounded in the expectation that good people will not remain silent when they are confronted with evil speech.

It relies on the willingness of good people to speak up when there is time to do so and counter evil counsel to reduce the likelihood that bad speech will lead to unlawful acts or violence.

If good people are silent, evil speech cannot be effectively refuted.

Our free speech doctrine in a very real sense imposes a constitutional obligation on good people to speak up.

And that obligation falls with special weight on those of us who can speak the loudest and can be heard by the largest audiences. Government officials, among others, are in this category of speakers. Their official positions give them a microphone which extends the reach of their voice. The First Amendment doctrine about incitement prevents officials from silencing evil ideas — but the reasoning underlying that doctrine obliges them to speak up loudly against evil speech.

Other private speakers with loud voices — such as media and the clergy — are similarly obligated. And the average citizen’s voice, joining with others, needs to be heard as well.

Consider another principle underlying accepted constitutional law. The Fifth Amendment (made applicable to the states by the Fourteenth Amendment) explicitly requires the government to pay just compensation to the owner when it takes private property. But what justifies this compensatory requirement? The Supreme Court in Armstrong v. United States explained that the purpose of this provision was “to bar Government from forcing some people alone to bear public burdens which in all fairness and justice, should be borne by the public as a whole.”

This principle extends beyond compensating property owners for takings. It supports an implicit obligation to compensate — or at least mitigate — the costs incurred when the state furthers the public good in a way that disproportionately burdens individuals or a small group. Consider some examples. Government often accommodates religious exercise either as a result of constitutional mandates or as a discretionary political act. While the protection of religious exercise is particularly valuable to the individuals whose religious practices are being burdened, a strong argument recognizes that religious liberty is a public good. Our society in general benefits in important ways from our commitment to religious freedom.

Sometimes, however, accommodating religion imposes costs on identifiable third parties. In Burwell v. Hobby Lobby, a major issue involved the cost to women employees who would lose valuable insurance coverage for medical contraceptives if employers were exempt on religious grounds from the regulations requiring them to provide such health insurance coverage to their employees. If, as I suggest, religious liberty is a public good, a theory of constitutional obligation would support the government (the public as a whole) assuming the cost of such coverage for the women employees denied insurance coverage to protect the religious liberty of their employers.

Or consider the baker who, for religious reasons, will not create a cake to celebrate the wedding of a same-sex couple. If we exempt the baker from the requirements of anti-discrimination laws in the name of religious freedom, does the state have an obligation to alleviate the cost to the victims of the baker’s discrimination? In this situation, monetary or material compensation may not be feasible. But there may be other ways for the government to mitigate the burden same-sex couples will experience. Perhaps the government could make available through web sites a list of the wedding cake bakers in the area who would welcome the patronage of same-sex couples.

A final example involves state laws banning abortion, which require pregnant women to carry a fetus to term and birth. Here, because the woman wants to terminate her pregnancy, she is not a private beneficiary of the state law. The state believes by prohibiting abortion it is furthering the public good. Obviously, however, this law imposes very substantial burdens on women, including physical, psychological, and economic costs. The state and public will not be able to come close to sharing all of these costs. But it can do some things. For example, in the case of a fetus who will be born with severely debilitating ailments, the state could take on the responsibility of providing top quality medical care, assistance, and support for these children after birth.

Constitutional obligations, while not law, are derived from constitutional principles. They have many virtues, not the least of which is that they move us — perhaps only slightly but to some extent — away from constitutional controversies being entirely a zero-sum game.

June 30, 2022

Supreme Court’s ‘Remain in Mexico’ ruling puts immigration policy in the hands of voters – as long as elected presidents follow the rules

[Cross-posted from The Conversation]

By Kevin R. Johnson

In the very last decision of its latest term, the Supreme Court released a major ruling that not only clears a barrier to ending a signature policy of the Trump administration but also signals that the future of immigration policy is in the hands of the electorate.

In Biden v. Texas, the Supreme Court rejected an effort to prevent the current president’s rollback of a Trump-era policy that requires asylum seekers arriving at the U.S. southern land border to be returned to Mexico while their claims were being processed.

The 5-4 decision means that the case will be returned to the lower courts court. But it also makes clear that whoever is control of the White House has the power to change directions in immigration policy – even drastic reversals of policy. It follows that presidents can do the same in other substantive legal areas as well, such as civil rights and environmental protection.

The rights (and wrongs) of remain

The issue in Biden v. Texas was whether the Biden administration could dismantle a Trump administration policy formally known as Migrant Protection Protocols but widely referred to as the “Remain in Mexico” policy.

As part of an array of immigration enforcement measures, the Trump administration announced the policy in late 2018 in response to numbers of migrants arriving at the U.S.-Mexico border.

But the Migrant Protection Protocols came under scrutiny amid concerns over the safety and conditions to which asylum seekers were subjected in camps under the supervision of Mexican authorities. Human Rights Watch found the policy sent “asylum seekers to face risks of kidnapping, extortion, rape, and other abuses in Mexico” while also violating “their right to seek asylum in the United States.”

Yet an attempt by the Biden administration to eliminate the protocols was barred by the U.S. Court of Appeals for the Fifth Circuit. The circuit judges found that the Biden administration had violated immigration law requiring the detention of asylum seekers.

The Supreme Court rejected this ruling. In a majority opinion written by Chief Justice John Roberts – joined by Justices Stephen Breyer, Elena Kagan, Sonia Sotomayor and Brett Kavanaugh – the court held that the Biden administration’s decision to terminate the Migrant Protection Protocols did not violate federal immigration law. The state of Texas had argued that ending the “Remain in Mexico” policy violated a provision that every asylum seeker entering the country be returned or detained.

In his dissent, Justice Samuel Alito argued that the statute requires mandatory detention of migrants at the border. Justice Amy Coney Barrett’s dissent expressed the view that the Supreme Court lacked the jurisdiction and that the case should be remanded back to the lower courts.

Avoid the arbitrary, cease the capricious

The Supreme Court’s decision means the case will be sent back to the lower court to decide, but with the removal of a major legal obstacle preventing Biden from ending the “Remain in Mexico” policy. The Supreme Court held that the immigration law does not require mandatory detention of all asylum seekers while their claims are being decided.

But moreover, the court made clear that the president has the discretion to change direction in immigration policy and continue, or end, policies of the previous president.

That might seem self-evident. But it comes after another 5-4 decision penned by Chief Justice Roberts – 2020’s Department of Homeland Security v. Regents of the University of California, which held that a president could not act irrationally in changing immigration policy.

In that decision, the Supreme Court found that the Trump administration had acted in an arbitrary and capricious fashion in rescinding the Obama administration’s Deferred Action for Childhood Arrivals – or DACA – policy. That policy provided limited legal status and work authorization to undocumented migrants who came to the country as children, so-called Dreamers.

In the court’s view, the Trump administration had not adequately considered the interests of the migrant children in deciding to rescind the policy and had given inconsistent reasons about the basis for the rescission.

That ruling provided fuel for states to challenge the Biden administration when it attempted to roll back some Trump-era policies. For example, Arizona, along with other states, challenged Biden’s attempt to abandon a proposed rule change by the previous administration that would tighten the requirements on low- and moderate-income noncitizens seeking to come to the U.S. Although the Supreme Court initially accepted review of the case, it ultimately dismissed the appeal and declined to decide the merits.

In the end, the Supreme Court’s decision in Biden v. Texas stands for the simple proposition that presidential elections matter when it comes to government policy. As long as an incumbent administration follows the rules – including rational deliberation of the policy choices in front of it – it can, the Supreme Court has said, change immigration policy.

June 14, 2022

Considerations for Developing An Environmental Water Right in California

[Cross-posted from California WaterBlog]

By Karrigan Börk, Andrew L. Rypel, Sarah Yarnell, Ann Willis, Peter B. Moyle, Josué Medellín-Azuara, Jay Lund, and Robert Lusardi

This week, news emerged of a State Senate plan that would spend upwards of $1.5B to purchase senior water rights from California growers. Under California’s first-in-time, first-in-right water allocation system, senior water rights are filled first, before more junior right holders get their water. The proposal is ostensibly promising. Because of widespread diversions, the aquatic biodiversity of California has been effectively exposed to chronic drought every year, and additional flows may help native species. If purchases can quickly add additional water to rivers in the right places and at the right times, they could benefit ecosystems and endangered species, like Chinook salmon and delta smelt (Moyle et al. 2019, Obester et al. 2020). But it could also easily become a payoff for wealthy water holders with marginal benefit for ecosystems, species, and people. The potential for abuse is particularly troubling when the State is using public funds to buy water, which technically belongs to the people of the state and which the State can already regulate to achieve the same aims. As the old saying goes, the devil is in the details. 

This blog highlights some important considerations for decision makers on making effective environmental water right purchases. Below are several questions and themes for a successful water purchasing program.

Does purchasing water rights actually result in more water for ecosystems?

Water rights in California are complicated, and there are many ways a water right purchase could not add appreciable water for ecosystems. 

First, many water rights exist only on paper. Some right holders only use a portion of their water right in most years and can only use the full right occasionally, e.g., in very wet years. The state of the data and reporting system in California, especially for senior water rights, makes it challenging to know how much water senior right holders are entitled to and how much water they actually use. And we’re most interested in their consumptive use – the share of water use that becomes available and legal to sell under California law – a quantity that’s even harder to pin down. Established legal and regulatory process exist to dedicate real water rights to the environment. California Water Code Section 1707 provides a mechanism to transfer water rights to instream use, and it, combined with other water code sections on water transfers, does a fair job of making sure that what’s being transferred is real water that will actually increase flows and be protected from other users. Practitioners have already developed practical guidelines for successfully completing the 1707 process. The State must take care to purchase real wet water rights that will result in enforceable instream flows. 

Second, water transferred to instream use needs to stay instream. On many rivers, the full flow of the river is already spoken for through existing rights, often many times over; California has allocated up to 1000% of natural surface water flow, with most of these water rights issued in the Sacramento and San Joaquin rivers. If purchased rights are simply retired or not otherwise protected for ecosystem purposes, then holders of other existing water rights can (and often will) simply take the water. 

Third, even with an effective mechanism for selecting real water rights and protecting them instream, improvements to monitoring and enforcement are essential to ensure true increases in instream flows. Many diversions are only roughly monitored, such that neither the water user nor the State knows exactly how much water is being used. Many river stretches lack flow gages, so it is difficult to quantify how much water remains instream (though SB 19 is attempting to address the limited network of stream gages in California). And the Water Board lacks adequate resources to enforce existing limits on water rights. The State needs open and reproducible data on diversions and flows, along with a meaningful enforcement threat to ensure any water set aside for environmental benefit remains in the ecosystem.

Finally, these water rights should be “new” water. The Water Board, through its Bay Delta Water Quality Control Plan, is already reducing water rights to protect public trust uses and water quality in the Bay Delta watershed. Water users are negotiating over Voluntary Agreements that could be a part of that Plan. In addition, many growers will need to fallow some fields to meet the mandates of SGMA. Many state and federal laws already circumscribe many water rights to protect instream water uses. Purchases with public funds should be focused on water rights that right holders would otherwise use, so the funds don’t go to pay for water that would have remained instream anyway.

What price should California pay?

The Water Board already has the power to reduce water rights to protect the public trust or to ensure water is used reasonably so as not to destroy public resources, and it has previously exercised that power. They consistently win the resulting lawsuits. California could legally and constitutionally acquire much of this water through other mechanisms, without paying for it. So what exactly is the State paying for here? 

In a nutshell, the state would pay for acquiring water quickly, with less political resistance and bureaucratic wrangling, and with less political ill-will and fewer messy and protracted lawsuits. That might make sense; we’re in a climate crisis, and salmon and many of California’s imperiled species don’t have time to waste. But it also means the State should not be paying full price. Water use reductions to support instream flows could occur through other government actions, without a State buyback. A water right that is sometimes curtailed by the state during drought due to endangered species or public trust concerns simply isn’t worth as much as a water right that doesn’t face such regulation. The question is whether water right holders get paid something now for their right or lose some of this water right with no payment after a protracted and expensive fight into a rapidly changing future. Prolonged litigation isn’t as advantageous to current water rights holders as they might seem. Longer and deeper curtailments are possible given the trajectory of California’s climate, meaning the right could become worth even less in the future.

The best approach to pricing might be something like the reverse auctions that The Nature Conservancy is already using to generate migratory bird habitat. Under this approach, water right holders bid to sell their water to the state, and the lowest bids would be more favored, provided that they are real wet rights, as discussed above. This should be coupled with continued pressure from the Water Board to exercise their existing powers to reduce water available to right holders, as they did in the last drought, to generate conditions that would encourage water right holders to sell. And, as we’ll discuss in further detail, another complexity is that it’s not just the cheapest water the state should buy, but the cheapest real water in the right place at the right time for the ecosystem (see point 3 below). Paying full price for water rights could amount to a giveaway to wealthy water right holders, but the reverse auction model can avoid this pitfall.

Paying public money for a publicly-owned and regulated resource will strike some advocates as morally wrong. They might argue it sets a dangerous precedent of buying out those who oppose regulation or treating water rights as a more concrete form of property than they actually are. Legislators should be aware of this philosophical opposition and must carefully craft the purchase program to ensure it provides enough water and ecological benefits to merit the actual and political costs. Because California water already belongs to all Californians, and water rights are subject to continuing State supervision, the State should make sure the funds they dedicate go as far as possible.

What water, when, and where?

What are the precise goals of these purchases? The plan may become the beginnings of an ‘environmental water right’. This would be a positive step. 83% of California’s endemic fish species are declining (Moyle et al. 2011). Furthermore, outmigration survival of juvenile Chinook salmon is strongly linked in a threshold manner to river flows (Michel et al. 2021). Thus additional flows could benefit endangered species, especially if deployed strategically. However, if additional flows are simply gobbled up by other water users downriver or deployed in the wrong places and times, the environmental benefit to people and ecosystems could be nil. Water budget and accounting mechanisms are needed to ensure water is getting where and when it is most needed.

“When” matters.

The ecological value of water changes over time; both between seasons and across years. For example, additional flows during drought may yield more ecological return on investment than increased flows in wet years. As one heuristic, average annual runoff in California is 71M acre-feet. Thus a total of 200,000 acre-feet of additional water (the figure provided in the linked article above) is only 0.3% of the average water budget. However, runoff in drought years is much lower. Runoff during the 1977 drought year was only 15M acre-feet; so 200,000 acre-feet is 1.3% of the water budget in such dry years. An accounting or water budget that details when additional flows would be available is needed to accurately track the availability of surplus water.

The value of water for economic uses also changes over time. Opportunity costs of water in the irrigation season of dry years are particularly high. Thus creating a buffer in wet years might be more cost effective than buying out agricultural water use during dry years. A buyback program that considers a baseline amount plus dry-year option may reduce uncertainties for both farming and ecosystem needs.

“Where” matters.

There are better and worse places for additional water. Adding high quality water is valuable, so water rights in spring-fed streams and groundwater-dominated rivers have high potential for adding higher value than simply additional flow volume due to their unique water quality. Spring-fed and groundwater-dominated streams are more resilient to climate change than strictly surface runoff-dominated streams, and, as a result, they support robust ecosystems

Adding significant amounts of water to tributaries can make a significant difference, in part because less water is needed to enhance these habitats. Similarly, adding water to coastal rivers, which may be less complicated and easier to monitor, could result in significant gains.

On maintem rivers, giving juvenile salmon and other native fishes better access to productive riparian and floodplain areas could support aquatic biota. Data from a host of studies demonstrate that salmon grow better when exposed to floodplain habitats (e.g., Katz et al. 2017, Holmes et al. 2021), and new studies are testing potential survival benefits for floodplain-reared salmon. But this may not require purchases of water rights; permanent easement arrangements, long-term conservation easements and/or NRCS programs could provide similar benefits at less cost and with more impact than just adding water to maintem rivers. Strategic tributary investments are likely to often provide greater and more sustainable ecosystem value compared to large mainstem purchases, where many other users, especially in the Central Valley, bid up water prices and the marginal proportions of flow improvements are smaller.

Equity and Social Justice.

In 2021, the California Water Board released Resolution No. 2021-0050, titled “Condemning Racism, Xenophobia, Bigotry, and Racial Injustice and Strengthening Commitement to Racial Equity, Diversity, Inclusion, Access, and Anti-racism.” This remarkable document acknowledged that the “Water Boards’ programs were established over a structural framework that perpetuated inequities based on race,” and it provides extensive background on the systematic exclusion of many groups from the water right acquisition process. The most senior water rights in California, those targeted by this purchase program, were acquired during a period when racism was the norm, when women often lacked independent legal identity, and when Asian people were unable to become citizens, even though citizenship was open to most other races. Indigenous peoples were still subject to state-sponsored genocide and systematically disenfranchised of their land and water rights. As a result, most minorities and many women were excluded from acquiring water rights or land with appurtenant water rights. Most senior water rights were originally claimed by white men, and that disparity has continued. Buying out water rights now, as opposed to rationally regulating them, risks perpetuating that tradition. Because of the State’s continuing ownership and regulatory interest in water rights, the State still has opportunity to redress past injustices, as the Water Board resolution acknowledges. Early drafts of the legislation for the purchase program appear to recognize this history and attempt to mitigate some of the lasting harm through funding for increased access to drinking water for disadvantaged communities. Without intentional engagement to address these past injustices, the broader purchase program might result in better public control of water, but at the cost of extending inequities. 

Conclusions

The State Senate proposal offers the promise of real change in California water. It might help to move past a decades-long stalemate, protect important tributary and coastal rivers, and ensure the survival of imperiled species. It offers quick action that could create long-sought environmental water rights. But the details matter. This proposal could just as easily result in a very minor increase in mainstem flows that does little to benefit ecosystems, or even pay for water rights that aren’t worth the paper they’re written on. A decade from now, this might be seen as a turning point or just another expensive water scheme. 

At some point, transdisciplinary water and ecosystem experts need to be brought into the room. Scientists can assist policy makers to identify the locations, times, and dynamics of flows that can have the most environmental benefit (e.g., California Environmental Flow Framework). Further, transparent cost benefit analysis, water balance modeling, or ecological optimization provide important insight on when and how (e.g., functional flows) to best use additional water for the environment.

Although engaging with experts can be challenging and can occasionally stymie progress, scientists also deliver data-driven frameworks for optimizing investments and learning the most from an experiment. This knowledge works to ensure that decisions are ultimately based on sound science while also looking at economic and distributional effects in water reallocations. Management plans/processes that are transparent, reproducible and science-based often help. Indeed, some states have adopted democratic boards with a science-based mission to oversee management of natural resources within the context of the public trust. A similar model may be useful here.

Strong legal and scientific oversight will be essential to maximize the ecological benefits of purchases. We hope these suggestions provide encouragement and guidance for decision makers as they further consider water right purchases for the environment.

Karrigan Börk is an Acting Professor of Law at the UC Davis School of Law and an Associate Director at the Center for Watershed Sciences. Andrew L. Rypel is a professor of Wildlife, Fish & Conservation Biology and Co-Director of the Center for Watershed Sciences at the University of California, Davis. Sarah Yarnell is a Research Hydrologist at the Center for Watershed Sciences. Ann Willis is a Research Engineer at the Center for Watershed Sciences. Peter B. Moyle is a Distinguished Professor Emeritus at the University of California, Davis and is Associate Director of the Center for Watershed Sciences. Josué Medellín-Azuara is an Associate Professor at the University of California, Merced. Robert Lusardi is an Assistant Adjunct Professor and Research Ecologist in the Department of Wildlife, Fish & Conservation Biology and the Center for Watershed Sciences at UC Davis. 

 

Further Reading

Bellido-Leiva, F.J., Lusardi, R.A. and Lund, J.R., 2021. Modeling the effect of habitat availability and quality on endangered winter-run Chinook salmon (Oncorhynchus tshawytscha) production in the Sacramento Valley. Ecological Modelling, 447, p.109511.

Börk, K., and A.L. Rypel. 2020. Improving infrastructure for wildlife. Natural Resources & Environment.

Börk, K., A.L. Rypel, and P. Moyle. 2020. New science or just spin: science charade in the Delta, https://californiawaterblog.com/2020/03/15/new-science-or-just-spin-science-charade-in-the-delta/

Grantham, T.E., and Viers, J.H. (2014). 100 years of California’s water rights system: patterns, trends and uncertainty. Environmental Research Letters 9(8), 084012.

Grantham, T.E. and Viers, J.H. (2014). California water rights: You can’t manage what you don’t measure. California Waterblog.

Holmes, E.J., P. Saffarinia, A.L. Rypel, M.N. Bell-Tilcock, J.V. Katz, and C.A. Jeffres. 2021. Reconciling fish and farms: Methods for managing California rice fields as salmon habitat. PLoS ONE 16(2): e0237686.

Hollinshead, S.P. and J.R. Lund, “Optimization of Environmental Water Account Purchases with Uncertainty,” Water Resources Research, Vol. 42, No. 8, W08403, August, 2006.

Katz, J.V.E., C. Jeffres, J.L. Conrad, T.R. Sommer, J. Martinez, S. Brumbaugh, N. Corline, and P.B. Moyle. 2017. Floodplain farm fields provide novel rearing habitat for Chinook salmon. PLoS ONE 12(6): e0177409.

Lusardi, R.A., Nichols, A.L., Willis, A.D., Jeffres, C.A., Kiers, A.H., Van Nieuwenhuyse, E.E., et al. (2021). Not All Rivers Are Created Equal: The Importance of Spring-Fed Rivers under a Changing Climate. Water 13(12), 1652.

Medellín-Azuara, J., Paw U, K.T., Jin, Y. Jankowski, J., Bell, A.M., Kent, E., Clay, J., Wong, A., Alexander, N., Santos, N., Badillo, J., Hart, Q., Leinfelder-Miles, M., Merz, J., Lund, J.R., Anderson, A., Anderson, M., Chen, Y., Edgar, D., Eching, S., Freiberg, S., Gong, R., Guzmán, A., Howes, D., Johnson, L., Kadir, T., Lambert, J.J., Liang, L., Little, C., Melton, F., Metz, M., Morandé, J.A., Orang, M., Pyles, R.D., Post, K., Rosevelt, C., Sarreshteh, S., Snyder, R.L., Trezza, R., Temegsen, B., Viers, J.H. (2018). A Comparative Study for Estimating Crop Evapotranspiration in the Sacramento-San Joaquin Delta. Center for Watershed Sciences, University of California Davis. https://watershed.ucdavis.edu/project/delta-et

Michel, C.J., J.J. Notch, F. Cordoleani, A.J. Ammann, and E.M. Danner. 2021. Nonlinear survival of imperiled fish informs managed flows in a highly modified river. Ecosphere 12: e03498.

Middleton Manning, BR. 2018. Upstream: Trust Lands and Power on the Feather River. Tucson: University of Arizona Press. 256 pp.

Moyle, P.B., J.V.E. Katz, and R.M. Quiñones. 2011. Rapid decline of California’s native inland fishes: a status assessment. Biological Conservation 144: 2414-2423.

Moyle, P., K. Börk, J. Durand, T. Hung, A.L. Rypel. 2019. Futures for Delta Smelt, https://californiawaterblog.com/2019/12/15/futures-for-delta-smelt/

Moyle, P.B. 2021. Drought makes conditions worse for California’s declining native fishes. https://californiawaterblog.com/2021/06/27/drought-makes-conditions-worse-for-californias-declining-native-fishes/

Rypel, A.L. 2022. Nature has solutions…What are they? And why do they matter? https://californiawaterblog.com/2022/03/

Rypel, A.L., D.J. Alcott, P. Buttner, A. Wampler, J. Colby, P. Saffarinia. N. Fangue, and C.A. Jeffres. 2022. Rice and salmon, what a match! https://californiawaterblog.com/2022/02/13/rice-salmon-what-a-match/

Rypel, A.L., P.B. Moyle, and J. Lund. 2021. A swiss cheese model for fish conservation in California. https://californiawaterblog.com/2021/01/24/a-swiss-cheese-model-for-fish-conservation-in-california/

Willis, A.D., Peek, R.A., and Rypel, A.L. (2021). Classifying California’s stream thermal regimes for cold-water conservation. PLOS ONE 16(8), e0256286. doi: 10.1371/journal.pone.0256286.

Yarnell, S.M., Petts, G.E., Schmidt, J.C., Whipple, A.A., Beller, E.E., Dahm, C.N., Goodwin, P. and Viers, J.H., 2015. Functional flows in modified riverscapes: hydrographs, habitats and opportunities. BioScience, 65(10), pp.963-972.

April 18, 2022

The Problem with 'Gotcha' Textualism

[Cross-posted from The Hill]

By Alan Brownstein

During Judge Ketanji Brown Jackson’s confirmation hearing, Sen. Marsha Blackburn (R-Tenn.) seemed triumphant when she confronted the Supreme Court nominee with the fact that the word “abortion” is not mentioned in the Constitution’s text. You could almost imagine her thinking “Gotcha.” While Blackburn’s comment about abortion is true, it has to be placed in context. There are a lot of words reflecting long accepted constitutional doctrines that are not in the text.

The term “federalism” isn’t mentioned. Nor are the phrases “separation of powers” or “checks and balances.” Rights such as freedom of association or the right to marry or have children aren’t there either. Key judicial concepts such as standing, ripeness, and mootness can’t be found in the text. Nor can metaphors beloved by conservatives such as a “colorblind” constitution. As the federal reserve bank is raising interest rates to combat inflation, it is worth noting that the authority to create a national bank like the federal reserve isn’t listed as a congressional power.

If we want to carry the commitment to textualism to its logical, but absurd limit, the Marines and the Air Force aren’t recognized either — just the Army and the Navy have constitutional recognition.

The point isn’t, of course, that the text is irrelevant; rather, its utility in dispositively resolving constitutional questions can be uncertain and complicated. Plain meaning textualism often can’t do the job standing alone.

Let me suggest some key ideas to keep in mind in discussing how to think about the lack of plain language in the Constitution’s text on important issues.

First, some ideas require a lot of interpretative maneuvering that goes far beyond the literal text. For example, the First Amendment states that “Congress shall make no law … prohibiting the free exercise [of religion] or abridging the freedom of speech …” But doesn’t the Constitution also prohibit states and local governments from suppressing these fundamental rights? It does. The Supreme Court has interpreted the 14th Amendment to incorporate most of the Bill of Rights and to make those rights applicable to the states. However, the 14th Amendment doesn’t say anything explicitly about incorporation. It is difficult to ground the incorporation idea on textual language alone.

Or consider another example. Does the Constitution prohibit the federal government from discriminating on the basis of race? On its face, the Equal Protection Clause (the provision which prohibits racial discrimination) of the 14th Amendment only applies to state and local government. There is no provision explicitly prohibiting the federal government from denying racial groups the equal protection of the laws. Here again the Court has held that the federal government cannot engage in race discrimination. But it is a rocky road to get there by looking at the text alone. 

Second, both conservative and liberal jurists make constitutional arguments that lack explicit textual support. Consider the text of the 11th Amendment: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Does anyone see any language in this text that prohibits federal courts from adjudicating cases brought by citizens against the government of the state in which they reside? (Focus on the word “another” in answering this question.) However, that is how conservative justices on the Court have interpreted this provision. The Court’s explanation for this deviation from the text is that the 11th Amendment was intended to protect a state’s sovereign immunity against suits by citizens of any state. That argument about historical intent is sharply disputed. More importantly, if we are focusing on the text, it is absolutely clear that neither the 11th Amendment, nor any other provision of the Constitution mentions “sovereign immunity.” Like abortion, it just isn’t there.

Third, expansive reading of the text to overcome the lack of literal support for a constitutional interpretation isn’t some new-fangled aberration of judicial activism. Consider this language from a Supreme Court opinion adjudicating the scope of congressional power: “[The constitution] by its nature, therefore, requires that only its great outlines should be marked, its important objects designated and the minor ingredients which compose those objects be deduced from the nature of the objects themselves … we must never forget that it is a constitution we are expounding … [This is] a constitution intended to endure for ages to come, and consequently to be adapted to the various crisis of human affairs.”

That language has a powerful historical pedigree: It’s from John Marshall’s opinion in McCulloch v. Maryland decided in 1819. In McCulloch, the Court upheld Congress’s power to incorporate a national bank notwithstanding that neither establishing a bank nor creating a corporation are listed among the enumerated powers of Congress.

Fourth and finally, the text of the Constitution contemplates non-enumerated powers and non-enumerated rights. Congress did not have an enumerated power to incorporate a bank. But Article I, Section 8, Clause 18 did provide it with the extended authority “To make all laws which shall be necessary and proper for carrying into Execution” the enumerated powers of Congress and all other powers vested in the national government. With regard to non-enumerated rights, the text of the Ninth Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Freedom of speech is an enumerated right. Abortion is not. But the enumeration of freedom of speech and other rights should not be construed to deny or disparage other rights, not similarly enumerated — such as the right to have an abortion.

April 4, 2022

Con Law Episode 62: 'On the Other End of the Line'

[Cross-posted from What Roman Mars Can Learn About Con Law]

By Elizabeth Joh

Trump's improper dealing with Ukraine was what led to his first impeachment. While most of us were focused on the domestic political implications of Trump's actions, the country of Ukraine was put into jeopardy in a way that many didn't fully realize until the recent Russian invasion. Time to revisit the first Trump impeachment now that we know more about who was on the other end of that phone line and the imminent danger they were in. 

Listen to episode 62 of What Roman Mars Can Learn About Con Law.