Much ink was spilled in reporting the length of the recent tax reform legislation. Philip Bump of the Washington Post, for example, wrote:

The bill came in two parts. About 500 pages were the bill itself; another 600 pages or so were the conference report which explained what the bill did. Bills, as written, are largely inscrutable, mostly consisting of things like “The following sections are each amended by striking ‘‘for ‘calendar year 1992’ in subparagraph (B)’’ and inserting ‘‘for ‘calendar year 2016’ in subparagraph (A) (ii)’ — which is actually in the tax bill. Unless you know what the sections being amended say and do, reading the bill itself won’t tell you much.

Often accompanying the reportage were comments suggesting that in the rush to passage it would have been impossible for members of Congress and the President to have entirely understood what they were passing; I have my own thoughts on what was being passed but will keep them to myself out of a sense of decency.

Neither the heft of the bill nor the detailed instructions as to the portions of the existing tax laws and codes affected are the important takeaways here. What is essential is to understand that enactment of the new law—of any law—by Congress and a president is only barely the beginning.

Once signed by the president legislation governing actions—whether impacting taxes or greenhouse gas (GHG) discharges—must be turned into rules. Not even the largely inscrutable things contained in the 600 additional pages Bump mentioned are much more than a start. The job of implementation falls to the various responsible executive/regulatory agencies, i.e., the Internal Revenue Service (IRS) or the Environmental Protection Agency (EPA).

Congress often chooses simply to establish overall goals and objectives when crafting legislation, leaving the specifics to the expertise of the executive branch to work out. So long as the intent of the law is clear, agencies are usually capable of implementing it in a reasonable and timely manner.

Congressional intent is not always as apparent as it needs to be, however, and neither is the language of a law always well-cast. In such instances, it often falls to the courts to decide what Congress meant when it enacted the law and whether the manner in which an agency intends to apply it conforms to other laws and the U.S. Constitution.

​This installment of the Here Come the (Trump) Judges series discusses how federal trial and appellate court judges—including the justices of the Supreme Court (SCOTUS)—go about making sense of enacted laws when confusion and conflicts arise.

Today’s discussion also addresses an often-overlooked opportunity for clean energy and climate advocates to influence the down-the-line decisions of both the implementing agencies and the courts even before a bill is signed into law.

When Judges Matter

The mark of the judiciary is made in its interpretation and application of various Constitutional provisions, laws, and legal precedents. How a judicial opinion is arrived at is a function of many factors, not the least of these is the legal philosophy a jurist brings with them and refines once ensconced on the federal bench.

To resolve conflicts and to provide clarity judges rely upon various sources, e.g., other laws, legislative histories, rules of procedure, ancient canons of English common law, established judicial precedents, scientific/expert data, common sense, etc. Interpretation, no matter how well-grounded, is not an exact science; it is to a large degree a subjective exercise.

Judges often come up with different conclusions when looking at the same language, identifying the same pertinent cases and hearing the same legal arguments. Even when agreeing on the outcome, e.g., upholding a lower court decision, judges and justices often arrive at the same endpoint via different routes.

It makes a difference where a judge or justice starts as it often belies where she may end up in any given case. Interpretation is at the heart of the debate surrounding federal judicial appointments.

Notwithstanding the presumed apoliticality of judicial appointments, whom a president nominates reflects a position along the political continuum. When a judge is referred to as conservative, it usually belies the tendency to interpret laws and the Constitution as narrowly as possible.

Take, for example, Neil Gorsuch. Considered a textualist or originalist, Gorsuch believes himself in the mold of the Justice whose seat he now fills. An approach to the Constitution I admit at odds with my own.

Justice Scalia described his originalist position as follows:

The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.

Despite Gorsuch’s description of himself he and Scalia are not in agreement in their view of the Chevron doctrine or deference. The doctrine is a foundational principle upon which the Clean Power Plan (CPP) and other aggressive Obama era environmental regulations like the Waters Rule of the U.S. are based.

The doctrine holds that courts should defer to reasonable agency interpretations of ambiguous statutes. It gets its name from the 1984 case Chevron U.S.A. v. Natural Resources Defense Council.  The deference grants policymaking flexibility to the agencies even when specific authority is not given in the language of a statute, e.g., the Clean Air Act.

In lay terms, Chevron holds that when in doubt about how an agency chooses to interpret the legislation it is basing a regulation on, the tie goes to the regulator. The doctrine is often lambasted by conservative politicians and judges. However, their opposition should be seen more a function of the cases in which it has been registered than to the doctrine itself.

Chevron is an example of how similar situations, can result in very different outcomes. Gorsuch wrote, as part of a three-judge panel in an immigration case, that [Chevron] permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.

Justice Scalia, however, championed the deference doctrine. As explained in a Federalist Society blog post he did so:

on the grounds that “broad delegation to the Executive is a hallmark of the modern administrative state” and that Chevron deference provides a dependable ‘background rule of law against which Congress can legislate.’ Scalia believed that Congress generally wants agencies to exercise discretion and that Chevron deference ensures that legislators “do not have to gamble upon whether, if they say nothing about it in the statute, the ultimate answer [to an interpretive question] will be provided by the courts or rather by the Department of Labor.” Chevron deference appealed to Scalia’s majoritarianism and his preference for clear rules.

The Federalist Society is considered the conservative alternative to the American Bar Association. Sixty-thousand members strong, the Society is commonly considered Trump’s go-to source for judicial candidates.

In the current debate surrounding Trump judicial nominees, Chevron is being used by both opponents and proponents of climate protections in deciding whether to support or oppose particular candidates. As described by Daniel Deacon, a legal scholar at the University of California Irvine if you took a snapshot before the 2016 election, you would see that most of the pro-regulatory groups probably liked Chevron, and anti-regulatory groups were against Chevron.

Deacon goes on to explain that Chevron is a faulty measure by which to judge the judges. In the Massachusetts case that led to the endangerment finding and in turn to the CPP, Justice Scalia faulted the majority’s opinion—that EPA had the authority to regulate the CO2 emissions coming from auto tailpipes. The majority’s opinion was at odds with the Agency’s lawyers who had opined EPA DID NOT have a license to regulate under the Clean Air Act.

EPA’s interpretation of the discretion conferred by the statutory reference to “its judgment” is not only reasonable; it is the most natural reading of the text. The Court nowhere explains why this interpretation is incorrect, let alone why it is not entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). As the Administrator acted within the law in declining to make a ‘judgment’ for the policy reasons above set forth, I would uphold the decision to deny the rulemaking petition on that ground alone.

Fortunately, a final judicial decision on a much-watered or rescinded CPP will not depend solely on whether the majority then sitting on the high court accepts or rejects Chevron. Other existing case law and the preponderance of scientific evidence will also likely be considered. Still, a predisposition to defer to the judgment of the Trump EPA leaves the door open as the deference doesn’t distinguish between an agency under the thumb of a Republican or Democratic president.

Court judges and justices have always had to interpret Congressional intent. These days, however, legislation seems to be getting more complicated and at times downright problematic. There are reasons for this including the complexity of modern science/technology and society; the deepening partisan divide preventing Congressional compromise; and, a rush to legislate when one party or the other is in the majority.

Jay Wexler, a professor of law at Boston University, believes the complexity of the federal legislative process guarantees that it [Congress] will spit out a lot of gibberish. Wexler is not the only one questioning the artistry of Congress’ scriveners.

Justice Alito has also used gibberish to describe Congress writing. He has asked out loud: Is there a certain point at which we say this means nothing…we can’t figure out what it means, and therefore, it has no effect?

The phrase legislative free-riding has been coined to describe when legislators leave it to regulators and the courts to figure out the details of their enactments. The phrase-maker, Bryan Garner, suggests free-riding leaves the courts with three options. They can stick to the written word, try to decipher Congress’ purpose, or seek the more desirable outcome—the latter representing the type of judicial activism conservatives despise.

When vagaries of legislative language become gibberish, they threaten to infect the judiciary with the same hyper-partisanship that is poisoning the operation of Congress and the presidency. 

Taken to excess, leaving it to the courts to decide what Congress and executive agencies mean to and can do is just another form of kicking the can down the road. Detrimental to the ever precarious system of checks and balances on which the Republic stands, it places a tremendous amount of pressure on a president and Senate majorities to appoint judges and justices who will accomplish their political agendas for them.

Determining where the line of excess lies is not easy. It requires a delicacy I am not sure today’s politicians are capable of exercising.

There is—as there should be—a distinction to be made between a constitutional conservative and an individual whose personal and professional belief appears to conflict with the spirit of the Constitution and the fundamental principles upon which the nation was founded.  A candidate whose personal actions call into question the ability to leave political predispositions and prejudices at the courtroom door.

Jeff Mateer’s nomination was met with bi-partisan opposition to his stated belief that transgender children are Satan’s spawn. Brett Talley, although ridiculed by some for being a ghostwriter and apparently without much legal experience, was found wanting for deliberately failing to reveal his wife’s relationship to the White House as a potential conflict of interest AND for previous expressions of sympathy for the KKK.

As I had mentioned in the previous installment of the series, the low quality and character of these and some other of Trump’s judicial nominees have finally been publicly called out by Senate leaders like Kennedy (R-LA) and Grassley (R-IA). However, before progressives take much hope from these recent events, it’s important to remember that the three failed nominations are a drop in the bucket. 

Opposing inexperienced and obviously bigoted and non-transparent judicial candidates is one thing. What about candidates whose shortcomings are not so obvious or who admit to having a particular legal/political perspective?

Should, for example, a nominee be confirmed, who has served as a member of the Texas Supreme Court expressed a political philosophy likely to find the Obama era EPA’s proposed Clean Power Plan, auto emission standards and the endangerment finding examples of executive overreach?  Specifically, a nominee who has stated:

I’ve built a record that is widely described — well, universally described — as the most conservative of anybody on the Supreme Court. I’ve garnered support from every corner of the conservative movement. There’s no ideological daylight to the right of me…I’m universally regarded to be the most conservative member of the court, which is a label that I accept with, frankly, gladness and gusto.

The nominee of whom I speak, Don Willett, was confirmed in December by the Senate and is the newest judge on the U.S. Court of Appeals for the Fifth Circuit. The Court has jurisdiction over the federal courts in Louisiana, Texas, and Mississippi and will hear a large number of cases involving the oil and gas industries.

Willett describes himself as the most prolific social media judge in America, which I admit is sort of like being the tallest munchkin in Oz, but I think people find it astonishing that a fuddy-duddy judge can step out from behind the bench and come across as halfway engaging and demystify the judiciary.

Like Trump, Judge Willett is a frequent “Twitter(er),” and like Trump, he has raised eyebrows over the content of his some of his tweets. He also has never said he wouldn’t tweet as an appellate court judge.

​The following exchange with Democratic Senator Leahy (VT) occurred during Willett’s confirmation hearing:

Leahy: You’ve equated a constitutional right to same-sex marriage, which the Supreme Court has upheld, with a constitutional right to marry bacon. I don’t think one would see that as praising the Supreme Court decisions.

Willett: Senator, as for the bacon tweet, that was the day after the Obergefell decision [legalizing same-sex marriage] was issued, and it was my attempt to inject a bit of levity. The country was filled with rancor and polarization. It was a divisive time in the nation.”

Leahy: And you think that cut back the divisiveness with a comment like that?

Willett: Senator, I believe every American is entitled to equal worth and dignity,” Willett responded. “I’ve never intended to disparage anyone. I would never do so, that’s not where my heart is.

Willett’s wit and wisdom appealed to Senator Cruz (R-TX) and other of the Senate Judiciary Committee’s Republican members. Cruz commended the nominee saying he had managed to be humorous and incisive on Twitter without crossing any of the lines…with a love of life and a personality that is irrepressible. Who said Cruz doesn’t appreciate a good joke?

Willett was confirmed along party lines 50-47. The Fifth Circuit Court of Appeals is a particularly happy hunting ground for Trump. James Ho was confirmed to sit on the same bench the day following Willett. Ho was Trump’s 12th confirmed nominee and a former Texas Solicitor General.

Two other Fifth Circuit Court of Appeals nominees are awaiting confirmation. Duncan Kennedy, who was initially opposed by Senator Kennedy (R-LA) but finally recommended. Kurt Englehardt, currently Chief Judge, U.S. District Court for the Eastern District of Louisiana has also been nominated and is awaiting confirmation.

Should they be confirmed, as is likely, 12 of the 17 active judges on the Appellate panel will have been appointed by Republican presidents. The split represents an unusually heavy conservative bent.

In all honesty, I don’t have any rule of thumb for readers to use in making the types of subtle distinctions needed to judge conservative nominees. For that matter I don’t have a rule for overly liberal nominees, whom I would argue can be just as threatening to the integrity of the federal court system.

OK, I admit it, I believe a balance between liberal and conservative judges and justices is necessary. A federal bench skewed too far to the right, or the left threatens the integrity of the courts and the continued willingness of we the people to play by the rules of the republic. The nation is not all one way or another and, therefore, a skewed SCOTUS is not reflective of the nation’s principles and beliefs.

The lifetime appointment thing makes maintaining a reasonable balance somewhat difficult, as the electorate changes much more frequently and rapidly than the composition of the federal bench. For me, that simply supports the notion of nominating candidates grouped just to the right and left of the middle. But then, I’m an unrepentant moderate.

So, what’s there to do?

The clean energy and climate community is not without opportunities either to impact the judicial nominating and confirmation process or to influence how laws are interpreted by the courts. The reader’s to-do list—should you accept this mission—involves making noise and making history. Both involve reaching out to Congress.

First, follow the nominating and confirmation process and make some noise. There is increasing coverage these days of judicial appointments. It covers the time between when candidate names are bandied about as possibles to the final schedule floor vote by the full Senate. Within the bracketed timeframe is generally at least one schedule Judiciary Committee hearing and reporting on whether the nominees home-state Senator returned the blue slip. Don’t be passive about it.  Do what I do—GOOGLE regularly.

Staying on top of issues you’re interested in has never been easier—really! I just Googled the phrase “federal judicial nominations Trump” and received over 4.5 million results in under .54 seconds. Follow links and your own common sense to learn more about the nominees including their professional histories, social media accounts what others are saying about them. What others?

I advise at least looking at the websites of both the American Bar Association and the Federalist Society. There are tons more links to organizations and articles that will pop up from even the most cursory search. If you get stuck, feel free to contact me, and I’ll do what I can to unstuck you.

Knowing is not enough, however. Once you have an opinion, tell it to your Congressional delegation. Don’t stop there—tell it to every member of the Senate Judiciary Committee beginning with Chairman Grassley. When expressing your opinion be brief, respectful and reasonable. Give good reasons why you think a particular nominee should not be given a lifetime appointment. Because Trump appointed him may is not a good enough reason; it shows you to be as doctrinaire as the individual you hope not to have seated on the federal bench.

Second, make some history—rather get your Senator and Representatives to contribute to the making of a Congressional record surrounding clean energy and environmental legislation. The more gibberish the language of legislation, the more courts may look elsewhere for hints of lawmaker intention.

A frequently used source of insights into intent is an enacted law’s legislative history. Before a bill becomes law, it is often the subject of committee hearings, and those proceedings are written up as a report that follows the legislation. It is not always the case. For example, the recent tax reform law was put together behind closed doors by Republican House and Senate leaders. No hearing record was prepared.

With or without a hearing report, members of Congress can speak their minds during the debate before a final vote. The debate period affords members the opportunity to ask the bill’s author and committee members to explain certain provisions.

Floor debates also permit members to introduce statements, i.e., a colloquy, into the record reflecting their reasons for voting on the bill and confirming their understanding of what the bill’s purpose and operation might be. Debates are recorded in the Congressional Record, which is a daily digest of the proceedings of Congress when in session.

Judges and justices do not universally accept legislative history. Critics charge such history is too easily manipulated. From personal experience, I can confirm that it can be manipulated—although I wouldn’t say it was always easy. (I’m counting on you to keep this to yourself.)

Predictably, textualists like Scalia are stridently opposed to such outside sources of information, and liberal jurists are more prone to refer to them. According to Justice Frankfurterif the purpose of construction is the ascertainment of meaning, nothing that is logically relevant should be excluded….Statutes are organisms which exist in their environment. The neutral, dispassionate judge will, therefore, seek to understand the environment whence the statute came.

Whether theoretically in favor or opposed to the use of legislative histories, the fact is most judges refer to it at one time or another to support their opinions—even Scalia. Readers can help to create history by contacting members of Congress and asking them to involve themselves both in committee hearings and during floor debates.

A legislator does not have to be a member of the committee considering the legislation or a nominee’s qualifications to ask questions or seek clarifications, including possible amendments to the language of the bill. Your Senator or Representative can ask a sitting member of the committee to front for them. They can also have their staff talk to the committee’s staff.

Making history takes time and dedication—generally not being a one-off contact or a simple email or phone call. As with any communication with a member of Congress, it is important to be clear, concise and respectful.

Chances of being positively received can be significantly improved if you write out the specific question(s) believed important for “curing” the record and a brief reason or two why. In my experience, volunteering to write at least an outline or draft of a floor statement is also appreciated and increases the chance it will happen.

These are, of course, just the sort of activities that lead to the charge of manipulation. Nevertheless, histories will be looked to, and in some number of future climate lawsuits will impact the outcome of a lawsuit.

There is nothing to lose and everything to gain by getting engaged in the legislative process. In the final analysis, the devil of any enacted law is in the details—details Congress is increasingly leaving out of its proposed legislation and relying on executive agencies and the courts to fill in the gaps.

Are there good reasons and opportunities to become involved in the making of legislative history, the regulatory process through public comments, and the confirmation of the judges and justices who will ultimately be asked for their opinion as to how a law is implemented? You bet the planet there is.

​So, get out there and do something.

​For more information on the Chevron deference and other legal precedence likely to play a role in coming court cases like the Clean Power Plan and possibly the endangerment finding check out my e-Book, Earth v Trump: A Failure to Protect ( and on Kobo and Barnes and Noble.

Image credit: Screenshot The Bee, Danville ,Virginia. The Brown decision was 9-0.