Originalism and Supermajoritarianism: Defending the Nexus

By John O. McGinnis[*] and Michael B. Rappaport[**]

[download pdf]

[Editor's Note:  This piece is a reply to Leib, Why Supermajoritarianism Does Not Illuminate the Debate Between Originalists and Non-originalists, 101 Nw. U. L. Rev. (forthcoming 2007), 101 Nw. U. L. Rev. Colloquy 113 (link).  Leib's piece was a response to McGinnis and Rappaport, A Pragmatic Defense of Originalism, 101 Nw. U. L. Rev. (forthcoming 2007); 101 Nw. U. L. Rev. Colloquy 68 (2007) (link).]

Introduction

Despite their ubiquity in the law, supermajority rules are little discussed and hugely undertheorized.[1]  We are thus grateful to Professor Leib’s response to our essay,[2] because it allows us to expand on the subject.  But if Professor Leib, who has written interestingly on supermajority rules in the context of the jury, is as mistaken on some fundamental points in our argument as his reply suggests, we must become better evangelists for our favorite topic.

This brief reply responds to Leib’s criticisms of our essay.  We show that, among other things, Leib fails to appreciate what makes our argument for originalism new; that he misunderstands the nature of supermajority rules in a complex voting system; and that he does not recognize the differences between constitutional provisions enacted under genuine supermajority requirements and ordinary statutes that happen to receive the support of a supermajority of legislators.

We are also grateful for the opportunity to reiterate that our essay did not purport to offer a comprehensive new defense of originalism, but instead only the outlines of a theory.  Professor Leib criticizes us at several points for not developing an argument or answering some possible criticism, but full development and anticipation of even the most important criticisms are not possible in a fifteen page essay.  The advantage of the short essay form now becoming more popular in the academy is that it allows one to provide the essence of a new idea, leaving some issues to later development and eschewing discussion of issues that have been thoroughly debated elsewhere.  Happily, this reply allows us to develop some additional parts of our theory.  Here, then, we answer some of Leib’s concerns, including explaining how much support is needed to establish the applicable interpretive rules, and discussing the effects of the status quo on the desirability of a constitution produced by supermajority rules.[3]

Massachusetts v. EPA: Breaking New Ground on Issues Other Than Global Warming (Part II)

By Kathryn A. Watts[*] and Amy J. Wildermuth[**]

[Editor's Note:  This week we have the conclusion of this Colloquy Essay; the first section was published here last week.  A pdf of the full essay can be downloaded here, and a full version in html form is available here.] 

II.  Ramped Up Review of Rulemaking Denials

A second aspect of Massachusetts that we predict will likely have long-term implications for administrative law involves the Court’s willingness to thoroughly scrutinize the reasons that the EPA offered for denying the petition to regulate greenhouse gases.  The D.C. Circuit (which is by far the most important court in the country when it comes to shaping administrative law) established years ago that courts may review inaction in the rulemaking context—albeit only through a highly deferential and very narrow version of “arbitrary and capricious” review.[68]  The D.C. Circuit has explained that constrained review, rather than searching review, is appropriate because the decision whether to engage in rulemaking boils down to a legislative judgment that may turn on a variety of policy considerations ill-suited to judicial review, such as resource allocation concerns.[69]

Despite the D.C. Circuit’s well-settled views on the topic, the Supreme Court prior to Massachusetts had never explicitly weighed in on whether an agency’s denial of a rulemaking petition is subject to review, and if so, what standard of review should apply.[70]  The Supreme Court’s pronouncements on the topic in Massachusetts accordingly merit attention.  In a nutshell, the Court—following the lead of the D.C. Circuit—declared that refusals to promulgate rules are susceptible to judicial review but that such review is limited and very deferential.[71]

Massachusetts v. EPA: Breaking New Ground on Issues Other Than Global Warming

By Kathryn A. Watts[*] and Amy J. Wildermuth[**]

[Editor's Note:  We are proud to present this Colloquy Essay in two parts.  The first part is published here today, and the second part is available here.  A combined version of the two parts is available in html and in pdf.] 

After the Supreme Court handed down its split 5–4 decision in Massachusetts v. EPA,[1] various media outlets trumpeted the significance of the case.  As one example, the Chicago Tribune proclaimed: “EPA must regulate greenhouse gases.”[2]  The problem, of course, is that the Court said no such thing.  To be sure, the Court determined that greenhouses gases were “air pollutants” within the meaning of the Clean Air Act (“CAA”).[3]  But the Court’s opinion did not order the EPA to regulate with respect to climate change.  Rather, the ruling remands the case to allow the agency to reconsider its denial of a petition to regulate the emissions of four pollutants associated with climate change from mobile sources under Section 202 of the CAA.[4]  The ruling, in other words, leaves the EPA free to decide not to regulate, so long as it provides adequate justification for its decision.  This means that what the media has touted as the “global warming” case may not actually lead to the regulation of global warming at all under the current CAA.[5]

So wherein lies the true significance of the case?  We believe that the long-term significance of the case is likely to be the opinion’s impact on two doctrinal areas of the law:  (1) the standing of states; and (2) the standard of review applied to denials of petitions for rulemaking.  First, although we have some questions about the Court’s reasoning, we are encouraged to see the beginning of a framework for evaluating state standing based on the interest of the state in the litigation.  Second, with respect to judicial review of agency inaction in the rulemaking context, the Court’s decision breaks new ground by not only confirming the reviewability of an agency’s denial of a rulemaking petition but also by closely scrutinizing the reasons that the EPA offered for its decision to decline to regulate.