It doesn't? I think that's pretty much exactly what the critics of it think.

I thought I saw a few individual utilities, but that checks out on EEI.

You can't blame them. They were just smitten by his blue eyes and Midwestern central casting qualities.

Related, it's kind of hilarious that the Court ultimately went away from simple dollar amount in defining the trigger for MQD--it's almost like Roberts realized how stupid that reasoning sounded in real time, since it clearly motivated his initial reaction to the CPP.

Correct. And then many of the utilities affected were on EPA's side by the time of WV v. EPA.

I would just say that the continuing disagreements about what the MQD is and whether it was needed in that case are both very revealing of the problems with the doctrine.

Separate from the merits, love the video post format--and cute kid, Beau!

Sometimes the opinion just doesn't write, and that's a real constraint (not perfect--there are judges, including Roberts apparently, who will just blow right through it).

Perhaps. I don't think Barrett is winning her fight. See the tariff case. The thing that unites the proponents is skepticism of agencies, and Gorsuch is the most honest of all of them.

I agree with all of this, though I would also say that doctrine can help on the margins when it helps cabin judicial policy making. And I don't think it's entirely idle to critique doctrine--like the new MQD--when it increases judicial power.

It's a reference to what homeowners say when they do their own renovation and see a rise in the value of their property. My point is that a clear statement rule doesn't require the Court to do the hard persuasive work of determining what the best reading of the statute is.

You got me there! (So too were the tariffs, and yet here we are cleaning up that mess after they let them go into effect pending review.)

There is daylight between doing de novo review (and putting sweat equity into the analysis) and having an intuition that something is unauthorized and demanding some kind of clear statement thumb on the scale to back it up. The new MQD enables this kind of judicial laziness.

A lot of mythology and a little bit of recency bias/ historical ignorance.

Being our national expert on what "accountability" entails, I'm sure Roberts completely understands why people would think this.

It was undoubtedly reinvented in 2022 in the case that ultimately culminated from this initial shot in the dark. UARG and FDA were very clearly old MQD cases--exceptions to Chevron deference. My read is that Roberts made the decision in 2016 and by 2022 came up with a rationale that extended MQD.

More than anything else this reveals just how impulsive the major questions doctrine revamp is. It all ultimately stemmed from Roberts's personal antipathy to a regulation, and everything since has been a dishonest attempt to dress it up so that he doesn't look like he's just shooting from the hip.

Murthy/Vullo strikes again.

We've lost a real trailblazer. Many of us would probably say they were inspired to think about law and legal scholarship in a very different way by Marc's work. I'm certainly in that camp.

Refer to Honor Council.

I predict a wave of very surprising judges in about 30 years--people who had all the conservative credentials, clerked for the right judge, befriended all the right people, and got nominated by the GOP to do a specific job who turn out to have liberal intuitions now that they have no boss.

If AI can get me published in HLR, it can do anything.

United Airlines CEO pitched possible combination with rival American, Bloomberg News reports United Airlines CEO Scott Kirby has floated a ​possible combination with rival American Airlines ‌Group , Bloomberg News reported on Monday, citing people familiar with the talks.

No. Just no.

This would be a nice test of just how corrupted antitrust enforcement has become under Trump.

www.reuters.com/business/uni...

For a nice Sunday treat, couple this post with a cup of coffee and @profdanwalters.bsky.social's latest article.

papers.ssrn.com/sol3/papers....

I think courts are going to have to get more comfortable calling BS on security rationales offered by presidents.

It's almost enough for a small conference!

Now this is what you call leadership.

How's this for a caption: "A whole civilization will die tonight."

Still can't wrap my mind around UCLA being Big Ten.

UConn had to lose that game. All is right in the universe (well, at least the college basketball universe).

Go Blue!