The Supreme Court’s bad call on Affordable Care Act

By DAVID B. RIVKIN JR., ELIZABETH PRICE FOLEY, Los Angeles Times, June 29, 2015

In King vs. Burwell, the Supreme Court ruled that the Affordable Care Act permits individuals who purchase insurance on the federal exchange to receive taxpayer subsidies. Though the King decision pleases the ACA’s ardent supporters, it undermines the rule of law, particularly the Constitution’s separation of powers.

Under Section 1401 of the ACA, tax credits are provided to individuals who purchase qualifying health insurance in an “[e]xchange established by the State under Section 1311.” Section 1311 defines an exchange as a “governmental agency or nonprofit entity that is established by a State.”

As Justice Antonin Scalia’s dissent notes, one “would think the answer would be obvious” that pursuant to this clear language, subsidies are available only through state-established exchanges.

Yet the King majority ignored what the ACA actually says, in favor of what the Obama administration believes it ought to have said, effectively rewriting the language to read “exchange established by the State or federal government.”

Scalia observes that “Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’” Like Humpty Dumpty in Lewis Carroll’s “Through the Looking Glass,” the majority claims that when the court is asked to interpret a word, “it means just what [the court chooses] it to mean — neither more nor less.”

To reach the desired meaning, the King majority declared that “an exchange established by the State” was somehow ambiguous, enabling it to ignore the text and advance instead its vision of the ACA’s overarching purpose. But the precedent upon which the King majority relied for this contextual interpretation, FDA vs. Brown and Williamson Tobacco Corp. (2000), involved a fundamentally different situation.

In that case, a group of tobacco manufacturers challenged the Food and Drug Administration’s authority to regulate tobacco products as “medical devices” or “drugs.” The court concluded that the words “device” and “drug” did not directly address tobacco and were consequently ambiguous.

When judges take it upon themselves to “fix” a law — or to bless an executive “fix” — they diminish political accountability by encouraging Congress to be sloppy.

The court looked beyond the Food, Drug and Cosmetic Act, or FFDCA, for contextual clues, discovering that Congress had subsequently passed several statutes allowing the continued sale of tobacco products, while regulating their labeling and advertising. This suggested to the justices that Congress did not intend tobacco to be regulated under the FFDCA as a drug or device.

In King, by contrast, there were no subsequent statutes providing contextual clues about congressional intent. The only reliable evidence was contained in the act’s language itself. This extra-textual approach is deeply problematic for the rule of law, since discerning a statute’s meaning from its context is always a dicey proposition, necessitating judicial inquiry into inchoate matters such as the law’s “purpose.”

Ascertaining a law’s purpose from evidence outside its text is virtually impossible, given that Congress consists of 535 members, each of whom is motivated by different purposes. This is why, at least until King, the court has not resorted to contextual interpretation when the text is plain.

In the words of Palmer vs. Massachusetts (1939), contextual interpretation is a “subtle business, calling for great wariness lest what professes to be … attempted interpretation of legislation becomes legislation itself.” Yet this is exactly what happened in King: Attempted interpretation became legislation itself. By ignoring what the ACA actually says, in favor of what the King majority believes the statute ought to have said or what it thinks Congress meant to say, the court upset the entire constitutional balance.

The King majority acknowledged that the ACA is full of “inartful drafting” and was written “behind closed doors, rather than through the traditional legislative process.” It also conceded that it was passed using unusual parliamentary procedures, and “[a]s a result, the Act does not reflect the type of care and deliberation that one might expect of such significant legislation.”

Despite all these flaws, the majority felt compelled to save Congress, and the ACA, from its own foibles. Specifically, the King majority believed that applying the ACA’s plain meaning “would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very ‘death spirals’ that Congress designed the Act to avoid.”

Even if a loss of subsidies would have exacerbated the death spiral, courts are emphatically not in the law-writing business. Article I, Section 1 of the Constitution grants “all” lawmaking power to Congress,” not merely “some.” The job of the judiciary is to implement laws, warts and all.

When judges take it upon themselves to “fix” a law — or to bless an executive “fix” — they diminish political accountability by encouraging Congress to be sloppy. And they bypass the political process established by the Constitution’s separation of powers, arrogating to itself — and the executive — the power to amend legislation.

This leads to bad laws, bad policy outcomes and fosters the cynical belief that “law is politics.”

<em>David B. Rivkin Jr. is a constitutional litigator at BakerHostetler who served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Elizabeth Price Foley is Of Counsel at BakerHostetler and a professor of constitutional law at Florida International University College of Law.</em>


Bypassing separation of powers to “fix” sloppy laws

In King v. Burwell, the Supreme Court surprised many Court watchers, ruling six to three that the Affordable Care Act (ACA) permits individuals who buy health insurance on the federal exchange to receive taxpayer subsidies. The decision represents a decisive victory for ACA supporters, and an equally decisive loss for the rule of law. With King, the Supreme Court has signaled (again) that it is willing to “save” important laws by rewriting them, thus behaving as an all-powerful, unelected, politically insulated, unconstitutional Council of Revision.

King is the second time the Court has rescued the ACA. The first time, NFIB v. Sebelius (2012), involved a frontal assault on the constitutionality of the Act’s individual mandate and its mandatory Medicaid expansion. The five-Justice NFIB majority, led by Chief Justice John Roberts, saved the individual mandate by rewriting the word “penalty” to mean “tax,” and disregarding extensive legislative history indicating that Congress had intended to use its commerce power, not its taxing power.

The NFIB majority also ruled that the ACA’s mandatory Medicaid expansion violated federalism by unconstitutionally coercing states. Because the Medicaid expansion was integral to making the ACA “work,” this constitutional infirmity should have rendered the entire ACA unconstitutional pursuant to a severability analysis. But as with the individual mandate, the NFIB majority opted instead to save the ACA, transforming the Medicaid expansion from mandatory to “optional.” In the words of the four NFIB dissenters, the majority “save[d] a statute Congress did not write.”

To paraphrase Yogi Berra, King is déjà vu all over again. Once again, Chief Justice Roberts has penned a majority opinion rewriting the ACA, but with one important difference: This time, the Court’s rewrite does not even further the policy of “saving” the ACA. If the Court had ruled the other way, the ACA, while not performing well, would have remained largely intact, albeit in a less draconian form that was more respectful of states and individual liberty.

The Obama administration convinced the King majority that the loss of subsidies would trigger a “death spiral,” whereby younger and healthier individuals leave the market, causing less healthy individuals to pay ever-higher premiums. But many – if not most – young, healthy individuals have already shunned the ACA’s expensive, high-deductible coverage, opting instead to pay the less expensive individual mandate “tax.” These decisions were made, despite the availability of subsidies. Thus, while losing taxpayer subsidies obviously makes health insurance more expensive, it does not, by itself, induce an underwriting death spiral. Instead, it would be more accurate to say that it forces individuals to pay the full freight of the benefits-rich insurance mandated by the ACA.

Indeed, the majority’s desire to save the ACA from these perceived policy effects blinded it to the countervailing effects of ruling in favor of the plaintiffs. For example, while a loss of subsidies would have caused some individuals to drop insurance, most would not consequently face the individual mandate “tax,” since it does not apply when premiums exceed eight percent of income. For Justice Anthony Kennedy (who dissented in NFIB) in particular, one would think such a positive effect on individual liberty – escaping the individual mandate – would have carried some weight.

Employers’ liberty would also have been enhanced if the King majority had ruled in favor of the plaintiffs. In the thirty-four states without state-run exchanges, employers would no longer have been subjected to the employer mandate tax, since it is triggered only when an eligible employee receives a subsidy. As Michael Cannon of the Cato Institute demonstrated, ruling against the Obama administration would have freed an estimated eight million individuals and 250,000 employers from paying onerous taxes.

Individual liberty aside, the King Court’s disrespect of states is also surprising since Justice Kennedy – normally the Court’s most strident federalist – joined the majority. The King majority appears to have invoked some odd form of the “clear statement rule” to bolster its conclusion, citing the Court’s 2014 decision in Utility Air Regulatory Group v. EPA and stating, “Whether [tax] credits are available on Federal Exchanges is thus a question of deep ‘economic and political significance’ that is central to this statutory scheme; had Congress wished to assign that question to an agency, it surely would have done so expressly.”

But as we have written before, the clear statement rule is a rule designed to protect federalism, not individuals. In every single prior instance in which the Court has invoked the clear statement rule, it has been to prevent Congress from using its enumerated powers in a manner that harms the states as states. The clear statement rule is utterly inapplicable, however, when Congress uses its power directly on citizens, as is the case with the ACA tax subsidy.

Moreover, the King majority’s decision denies states a meaningful choice regarding whether to operate a state exchange. Refusing to operate a state exchange empowered states to free many of their citizens from the Act’s onerous mandates and provided a means to voice their strong political opposition to the ACA. While the choice to operate a state exchange was a difficult one, it was a still a choice. The King majority’s invocation of the clear statement rule denies states this basic choice, using the rule not to respect federalism, but to impose a one-size-fits-all approach. By denying states a choice, the King Court has thwarted the liberty-enhancing function of federalism.

Beyond these various policy implications, however, the King decision portends frightening implications for the rule of law. As the King dissenters ominously warned, “Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’” By ignoring what the ACA actually says, in favor of what the King majority believes the statute ought to have said, or what it thinks Congress meant to say, the Court upset the entire constitutional balance. Yet ironically, the King majority invoked Marbury v. Madison and declared that a court’s proper role was to “to say what the law is.” While this is a correct recitation of the proper role of the judiciary in a constitutional republic, it is sadly not the role the King Court played.

Courts are emphatically not in the law-writing business. The King majority confessed that “the Act does not reflect the type of care and deliberation that one might expect of such significant legislation” and that “the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.”

But by departing from the “natural reading” of a law that is patently poorly drafted, the Court has short-circuited the entire political process. When judges take it upon themselves to “fix” broken legislation like the ACA, they diminish political accountability by encouraging Congress to be sloppy when drafting legislation. And when it comes to the quality of legislating, judicially drafted “legislation” is always worse than even hastily drafted congressional statutes.

Moreover, when faced with a poorly drafted law, the executive branch has every incentive to amend laws unilaterally, rather than working with Congress to amend them. It may be expedient for presidents to issue regulations pretending legislation says whatever the president wants it to say, but such de facto executive-lawmaking inherently lacks the deliberation and compromise that permeates the legislative process.

When the Supreme Court conflates law interpretation with lawmaking – as it has done in King – it diminishes courts’ independence, undermines their legitimacy, and destroys the ability to have judicial decisions heeded by the two political branches. According to Gallup, trust in government is at its lowest since the Nixon years, with only twenty-eight percent of Americans having a “great deal” or “fair amount” of trust in the legislative branch, and only forty-three percent in the executive branch. The judicial branch still fares better, at sixty-one percent confidence, but that, too, is historically low. By rewriting the ACA’s plain language simply because the stakes were high, the Court can expect a further erosion of the confidence of the American people. Indeed, one of the political left’s defining mantras is that “law is politics.” The decision unfortunately both illustrates and amplifies this belief.

Now that the Court has fixed the ACA (again), the political branches can relax. There is no need to start working together to amend the law and engage in the back-and-forth art of political compromise. While this may be good news for the president and members of Congress who were gearing up for an intense round of political chicken, it is horrible news for the American people and the Constitution.

When a law is hastily enacted and consequently has flaws, it is supposed to be amended by Congress. Judges are not supposed to engage in sophistic contortions to find “ambiguity” in their quest to justify rewriting laws. By bypassing the political process this way, the Supreme Court in King has bypassed the Constitution itself.

<em>David B. Rivkin, Jr. is a constitutional litigator at BakerHostetler, LLP, who served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Elizabeth Price Foley is Of Counsel at BakerHostetler and a professor of constitutional law at Florida International University College of Law.</em>


Supreme Court routs raisin racket

By David B. Rivkin, Jr., and Andrew M. Grossman — 22 June 2015 in USA Today

Constitutional law isn’t all conflict. It may seem that way as the Supreme Court barrels along to the conclusion of another term, with contentious cases concerning same-sex marriage, Obamacare, and seemingly every other issue plucked from the headlines. But the high-profile controversies obscure that, as much as the Supreme Court may be divided, the justices are able to come together on a great many important issues.

For example, raisins. Yes, those tiny wrinkled morsels. The tiny snacks are also the subject of a major challenge to government power — one that has revealed surprising agreement on the Court.

Marvin and Laura Horne have been growing raisins for 40 years on their family’s California farmland. After they decided to dry the raisins for themselves, rather than sell their grapes to a processor, they found themselves in the cross hairs of the federal government, facing fines of nearly a million dollars.

Their crime? Refusing to allow the government to seize over a million pounds​ of the raisins they had grown and processed themselves.

It is the dirty little secret of American agriculture that raisins and other crops, despite being produced by private parties, are actually under the control of the federal government, which colludes with major producers to fix prices and control the market.

These so-called “marketing programs” are a relic of the New Deal, a time when the U.S. response to the threat of Soviet five-year plans was to adopt our own, but better. The rest of the economy that was once subject to central planning has since embraced the free market. Farming is among the last holdouts.

Many of these programs empower producers to use the power of the government to cap supply. In the raisin program, for example, a board made up raisin processors sets a “reserve percentage” of the annual crop that must be set aside for the government to use as it pleases. Some of those raisins are used in government programs, while others are sold, with the proceeds used to subsidize exports. Producers, however, have no guarantee that they’ll receive a single dollar for the tons of produce they’re forced to turn over to the government.

The Hornes challenged this scheme as an unconstitutional taking of private property. And just this week, the Supreme Court agreed, in an 8-1 decision.

The government argued that raisin producers actually benefit, because restricting the supply of raisins drives up the prices paid to producers — at the expense of consumers, of course. The Court held, however, that any hypothetical benefit simply doesn’t matter: the government simply can’t take your property, without any compensation, and then tell you that it’s for your own good.

Whether or not the Hornes in particular would have benefited from having their crops seized is a matter of disagreement— they say the price increase doesn’t come close to covering their losses. But what’s beyond debate is that the raisin program deprived the Hornes of any real interestin their own property.

That result, and the broad support for it on the Court, wasn’t inevitable. While the Court’s conservatives have long been wary of governmental overreaching, its liberals regularly vote to uphold broad and often intrusive regulatory authority.

What brought the justices together in this case may be a shared wariness of government cronyism. While many programs can at least be defended as advancing the public interest, the raisin marketing program only benefits private parties like major producers and exporters at the expense of other private parties like smaller farms and consumers. A small group of winners profits, while everyone else loses. That’s enough to make even justices who see few limits on federal power to intervene in markets think twice.

There’s a lesson in this for the rest of us. As Republicans and Democrats bicker over the budget, the economy, health care, and just about everything else, they should be able to come together on a non-partisan reform agenda taking aim at government cronyism and corporate welfare. The political parties may have different visions of the public interest, but we should all be able to agree that government has no business serving private interest.

David B. Rivkin, Jr., and Andrew M. Grossman practice constitutional law at the law firm Baker & Hostetler.​


Does EPA’s Clean Power Plan Proposal Violate the States’ Sovereign Rights?

By David B. Rivkin, Jr., Mark DeLaquil, Andrew Grossman, June 15 2015

Note from the Editor:

This article discusses the Environmental Protection Agency’s Clean Power Plan under the Clean Air Act. As always, The Federalist Society takes no position on particular legal or public policy initiatives. Any expressions of opinion are those of the author. The Federalist Society seeks to foster further discussion and debate about the issues involved. To this end, we offer links to other perspectives on the subject, and we invite responses from our audience. To join the debate, please e-mail us at

Congress’s statement of policy in the Clean Air Act that “air pollution control at its source is the primary responsibility of States and local governments” is not merely hortatory.1 It reflects both the practical reality of and constitutional limitations on federal regulation of air quality. The practical reality is that the federal government relies on the states both for the detailed policymaking necessary to achieve national goals on a state-by-state basis and for the implementation and enforcement of pollution-control programs with respect to particular sources. But, no matter its reliance, the federal government is forbidden from commandeering the states or their officials to carry out federal law, from coercing them to do so, and from invading the states’ own powers. The Clean Air Act resolves this tension through a system of “cooperative federalism” that gives states the opportunity to regulate in accordance with federal goals and provides for direct federal regulation as a backstop should they fail to do so. This accommodation allows the federal government to enlist the states’ assistance in achieving federal goals without exceeding its authority under the Constitution.

The Environmental Protection Agency’s “Clean Power Plan” (the “Proposed Rule”) abandons that careful accommodation and, in so doing, violates the Tenth Amendment and principles of federalism. The Proposed Rule requires each state to submit a plan to cut carbon-dioxide emissions by a nationwide average of 30 percent by 2030. Although ostensibly directed at emissions from fossil-fuel-fired power plants, the Proposed Rule sets targets for individual states that incorporate “beyond-the-fenceline” cuts to be achieved by increasing reliance on natural gas generation, adopting zero-emissions generation such as wind and solar, and reducing electricity demand. The goal is to phase out coal-fired power plants, which currently account for nearly 40 percent of electricity generation.

In the service of achieving EPA’s policy objectives, the Proposed Rule forces each state to overhaul its energy market. Just to keep the lights on, states will have to dramatically change their energy mix, to account for the loss of coal-fired generating capacity, and to rework their regulation of energy producers, power dispatch, and transmission. This will require changes to states’ legal and regulatory structures, as well as numerous regulatory actions directed at their own citizens—energy producers and consumers alike. In order to accomplish these objectives, even a state that declines to implement the Clean Power Plan will have to employ EPA’s “building blocks” to prevent the Plan from wrecking the state’s energy economy. And states that refuse to accede to EPA’s demand to implement this new program face the specter of financial sanctions. In short, EPA’s Proposed Rule forces the states to act to carry out federal policy. It is a gun to the head of the states: “Your sovereignty or your economy” is EPA’s ultimate demand.

But the federal government may not “require[] the States to enact or administer a federal regulatory program.” Printz v. United States, 521 U.S. 898, 926 (1997). Nor may it “command state or local officials to assist in the implementation of federal law.” Id. at 927. Nor may it employ penalties and threats to “coerce[] a State to adopt a federal regulatory system as its own.” NFIB v. Sebelius, 132 S. Ct. 2566, 2602 (2012) (Roberts, C.J.).

Because it violates those cardinal rules, the Proposed Rule’s directives to the states “are, in the words of The Federalist, ‘merely acts of usurpation’ which ‘deserve to be treated as such.’” Id. at 2592 (quotation marks omitted). The Proposed Rule should be withdrawn. If the rule is finalized, and if it is held to be within EPA’s statutory authority, the courts would be constrained to reject it as exceeding federal power under the Constitution.

I. Background

A. The Clean Air Act and Section 111(d)

The Clean Air Act “made the States and the Federal Government partners in the struggle against air pollution.”2 As to stationary sources of emissions, the Act contains several programs under which EPA sets standards, such as for the concentration of certain pollutants in ambient air, that are then implemented and administered by the states through State Implementation Plans (“SIPs”) prepared by the states.3 These implementation plans address, among other things, enforceable emission limitations for sources, monitoring systems, enforcement programs, adequacy of personnel and funding available to implement the plan, and consultation and participation by local political subdivisions affected by the plan.4

EPA, in turn, is required to approve state implementation plans that satisfy the requirements of the Act and applicable regulations, including standards set by EPA.5 Only if a state fails to submit an implementation plan, or submits one that is deficient, may EPA directly regulate sources itself through promulgation of a Federal Implementation Plan (“FIP”).

In this system, EPA is “charged by the Act with the responsibility for setting [national standards],” but “it is relegated by the Act to a secondary role in the process of determining and enforcing the specific, source-by-source emission limitations which are necessary if the national standards it has set are to be met” and “may devise and promulgate a specific plan of its own only if a State fails to submit an implementation plan which satisfies those standards.”6

Section 111(d) implements this cooperative approach for setting “standards of performance” for certain existing stationary sources of air pollutants.7 It provides for EPA to direct the states to submit plans that “establish[] standards of performance for any existing source for any air pollutant” which would be subject to an EPA-prescribed standard if emitted by a new source and that “provide[] for the implementation and enforcement of such standards of performance.”8 A “standard of performance” is defined as “a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) [EPA] determines has been adequately demonstrated.”9 State plans, however, may also “take into consideration, among other factors, the remaining useful life of the existing source to which such standard applies.”10 Only in the event that a state “fails to submit a satisfactory plan,” or fails “to enforce the provisions of such plan,” may EPA step in and regulate itself by setting and enforcing standards.11

B. EPA’s Proposed Rule

EPA’s Proposed Rule relies on the agency’s Section 111(d) authority to set standards for existing fossil-fuel-fired power plants.12 It aims to reduce carbon dioxide emissions from the power sector by 30 percent by 2030, relative to 2005 levels, by requiring states to overhaul their “production, distribution and use of electricity.”13 States must submit state plans to achieve “emission rate-based CO2 goals” that EPA has specified for each state.14 These targets are based on projected emissions reductions that EPA believes can be achieved through the combination of four “building blocks”:

1. Reducing the carbon intensity of generation at individual affected [power plants] through heat rate improvements.

2. Reducing emissions from the most carbon-intensive affected [power plants] in the amount that results from substituting generation at those [power plants] with generation from less carbon-intensive affected [power plants]….

3. Reducing emissions from affected [power plants] in the amount that results from substituting generation at those [power plants] with expanded low- or zero-carbon generation.

4. Reducing emissions from affected [power plants] in the amount that results from the use of demand-side energy efficiency that reduces the amount of generation required.15

In plain English, EPA’s building blocks anticipate that, to meet EPA’s targets, states will have to: (1) require plants to make changes to increase their efficiency in converting fuel into energy; (2) replace coal-fired generation capacity with increased use of natural gas; (3) replace fossil-fuel-fired generation capacity with nuclear and renewable sources, such as wind and solar; and (4) mandate more efficient use of energy by consumers.16 These “building blocks,” in one combination or another, are effectively the only ways that a state could reorganize its electric generating capacity to achieve the targets set by EPA.

EPA describes this as a “plant to plug” approach that comprehensively addresses all aspects of energy production and consumption based on “the interconnected nature of the power sector.”17 In this respect, unlike other emissions-control programs, EPA’s Proposed Rule relies extensively on “beyond-the-fenceline” measures—that is, regulation of things other than the emissions of the sources it actually purports to regulate. This describes all but the first of EPA’s building blocks.

The Proposed Rule requires states to submit implementation plans, including all necessary statutory and regulatory changes, by June 30, 2016, absent special circumstances.18 Any state that does not submit an implementation plan consistent with the rule’s requirements will be subject to a federal plan devised by EPA that regulates fossil fuel-fired power plants in the state.19

C. The Proposed Rule Requires States To Overhaul Their Energy Sectors

Because EPA used “the combination of all four building blocks” to set state emissions targets,20 those targets cannot be achieved only by employing controls at the sources ostensibly subject to Section 111(d) regulation: fossil-fuel-fired power plants.21 Accordingly, compliance with the Proposed Rule will require states to take “beyond-the-fenceline” measures that involve fundamentally restructuring their regulation and use of electricity.22

First, states will have to eke out whatever efficiency gains can be accomplished in a cost-effective manner from their existing coal-fired generation fleet. While this step may be within the existing statutory authority of state environmental regulators, feasible improvements may be few and far between, due to upgrades already implemented to comply with other regulations.23 In general, states will be able to achieve improvements of only a few percentage points in emissions reduction, at most24—compared to the 30 percent, on average, that is required in total. Some upgrades could potentially trigger new source review obligations, making them economically infeasible.25

Second, states will have to revise the statutory and regulatory systems that govern dispatch among power plants to place coal-fired plants—which typically supply baseload power—at the rear of the pack.26 That change, in turn, will require additional state actions to ensure that customers in certain areas relying on affected plants are not left without power or forced to bear unreasonable costs.27 It will also require substantial changes to utility regulation as systems that put cost and reliability first in making dispatch determinations are reworked to consider other factors.28 And in states where dispatch is controlled by federally regulated multi-state regional transmission organizations, other regulatory or inter-governmental actions will be required.29

Third, states will have to develop or incentivize zero-emissions generation, which will require state authorizing legislation and expenditures.30 Developing sources such as wind and solar will inevitably implicate other environmental issues, such as endangered species protection, that states must also address, at considerable burden and expense.31 They must also address how increased renewable capacity, which may fluctuate, fits into the transmission system and dispatch, as well as how such capacity will be compensated.32 In states where it is not feasible to add renewable capacity, or that do not receive credit for such capacity that is exported, other measures will be required. For example, West Virginia anticipates that it “would be forced to participate in some form of interstate program that would include the states in which West Virginia-produced wind energy is sold. Such a program would require new statutory authority, significant groundwork in determining which states would participate, negotiations with those states, resources to develop interstate agreements to create an entity that would administer the interstate program, and time to create parallel regulations in each state to implement a program that would allow West Virginia to receive credit for the zero carbon emissions associated with current and future wind resources.”33

Fourth, states will have to enact programs to reduce electricity demand in an enforceable fashion, requiring legislative and regulatory action.34 States with deregulated electricity markets will face particular challenges, because power plants may be independent of power distribution companies.35 This may also require, in some instances, regulation of consumers of electricity, which will be a new mission for state environmental and utility regulators.36

Finally, to achieve EPA’s targets, states will inevitably have to require the idling or retirement of some coal-fired power plants and deal with the consequences of doing so.37 This includes maintaining electric reliability for all customers, ensuring that plant operators are appropriately compensated, and ensuring that the financial impact on electricity consumers is acceptable.38

In sum, the Proposed Rule, if adopted as proposed or in a substantially similar form, will require states to overhaul their regulation of electricity and public utilities and to take numerous regulatory and other actions to comply with and accommodate the Proposed Rule while maintaining electric affordability and reliability. And that will be the case regardless of whether states take direct action and adopt “state plans” or whether they decline to promulgate a state plan and become subject to a federal plan—which, even if it applied only to coal-fired plants, would presumably require their retirement—due to states’ pervasive regulation of the power sector, transmission, and utilities. For no state is doing nothing an option.

II. The Proposed Rule Commandeers the States in

Violation of the Tenth Amendment

The Tenth Amendment provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”39 It “states but a truism that all is retained which has not been surrendered.”40 But part of what has been retained is the states’ sovereign authority.41 Thus, “if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress.”42 Among the powers denied to the federal government is the power to “use the States as implements of regulation”—in other words, to commandeer them to carry out federal law.43 The Proposed Rule plainly does so and is therefore ultra vires.

While the Commerce Clause “authorizes Congress to regulate interstate commerce directly[,] it does not authorize Congress to regulate state governments’ regulation of interstate commerce.”44 Thus, in New York v. United States, the Supreme Court struck down a provision of the Low–Level Radioactive Waste Policy Amendments Act that required states either to legislate to provide for the disposal of radioactive waste according to the statute or to take title to such waste and assume responsibility for its storage and disposal.45

New York holds that such commandeering is incompatible with the clear lines of accountability embodied in the Constitution’s vertical separation of powers. The federal government may, the Court explained, encourage state action by “‘attach[ing] conditions on the receipt of federal funds.’”46 And it may “offer States the choice of regulating [an] activity according to federal standards or having state law pre-empted by federal regulation.”47 In both of these instances, the state is merely “encourage[ed]…to conform to federal policy choices,” and “the residents of the State retain the ultimate decision as to whether or not the State will comply” by holding state officials accountable for making such choices.48 But that accountability is undermined “where the Federal Government directs the States to regulate, [because] it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision.”49 In enacting the “take title” provision, the Court concluded, “Congress has crossed the line distinguishing encouragement from coercion.”50

It made no difference that the provision allowed “latitude” to the States in choosing how to carry out the federal directive. While a state could choose to contract with a regional disposal compact, build a disposal site itself, etc., each of these options “underscore[d] the critical alternative a State lacks: A State may not decline to administer the federal program. No matter which path the State chooses, it must follow the direction of Congress.”51 Also irrelevant was the importance of the federal interest at stake, as well as the states’ participation in the formulation of federal policy.52 After all, “State governments are neither regional offices nor administrative agencies of the Federal Government,” but sovereigns in their own right.53

Printz v. United States reaffirmed and extended these principles to the commandeering of state officials.54 At issue was a federal statute that, although it did not command states to regulate, directed certain state law enforcement officers to conduct background checks on gun buyers and perform related tasks.55 In other words, the statute directed state officials “to participate…in the administration of a federally enacted regulatory scheme.”56 And that was a step too far: “Preservation of the States as independent and autonomous political entities” is unacceptably “undermined…by ‘reducing them to puppets of a ventriloquist Congress.’”57 Thus, the states may not be “dragooned…into administering federal law.”58

Yet that is precisely what the Proposed Rule would do. While the Proposed Rule ostensibly applies to the industrial category of fossil-fuel-fired plants, EPA makes no pretense that compliance can be achieved through the application of a system of emission reduction, such as pollution control technology, at those sources. Instead, EPA determined that the “best system of emission reduction” is a building-block approach that includes such beyond-the-fenceline measures as dispatch, development and integration of renewable generation capacity, and regulation of power consumers.59 In this way, the Proposed Rule’s reach extends well beyond the fenceline of those sources, to the states’ regulation of their power sectors.

All of these things require EPA to enlist the states and their officers. While the agency has authority to directly regulate emissions by regulated sources in lieu of a state doing so—which regulation EPA anticipates will account for only a small fraction of total reductions60—the remainder of the actions required will have to be carried out by the states and their officials. Indeed, federal law expressly recognizes states’ exclusive jurisdiction “over facilities used for the generation of electric energy[,] over facilities used in location distribution or only for the transmission of electric energy in interstate commerce, [and] over facilities for the transmission of electric energy consumed wholly by the transmitter.”61 As the Supreme Court has recognized, the “economic aspects of electrical generation”—which lie at the very heart of the Proposed Rule—“have been regulated for many years and in great detail by the states.”62 That includes states’ “traditional authority over the need for additional generating capacity, the type of generating facilities to be licensed, land use, ratemaking, and the like.”63 And it is “state public utility commissions or similar bodies [that] are empowered to make the initial decision regarding the need for power.”64 EPA does not—and could not, under its governing statute—purport to exercise or preempt these traditional state powers.65 Instead, it expects that the states will exercise them to carry out its ends.

The agency is remarkably candid on this point. It acknowledges that states’ “utility regulatory structure” will affect precisely how each complies.66 It anticipates that administration of its rule will “extend federal presence into areas that, to date, largely have been the exclusive preserve of the state and, in particular, state public utility commissions and the electric utility companies they regulate,” but without entering those areas itself.67 It expects that a state plan will include “public utility commission orders.”68 It even recognizes that “affected entities” will include any “entity that is regulated by the state, such as an electric distribution utility, or a private or public third-party entity.”69 Indeed, each state must “demonstrate that it has sufficient legal authority to subject such affected entities other than affected [power plants] to the federally enforceable requirements specified in its state plan.”70 All of these things reflect EPA’s awareness that achieving its emissions targets will require far more than just emissions controls: compliance will require states to fundamentally revamp their regulation of their utility sectors and undertake a long series of regulatory actions, all at EPA’s direction.

The states have no choice in this matter. While EPA makes much of the “State Flexibilities” on offer,71 what states lack, as in New York, is the choice to “decline to administer the federal program.”72 Instead, the states are treated as “administrative agencies of the Federal Government.”73 For that reason, the Proposed Rule impinges on the states’ sovereign authority and therefore, like the actions under review in New York and Printz, exceeds the federal government’s power.74

The Proposed Rule is different in kind from the sort of actions that the Supreme Court has identified as permissible ways to encourage state action: offering states the first shot at regulation, backstopped by federal preemption, and attaching conditions to the receipt of federal funds.75 As to the former, EPA does not have the authority to preempt states’ regulation of their utility sectors and energy usage.76 Therefore states do not have the option of leaving compliance entirely in the hands of the federal government; they must take action to carry out federal policy.77

As to financial inducement,78 even states that refuse to submit implementation plans—thereby leaving the means of achieving CO2 goals to EPA in a federal plan—will still be forced to either carry out any beyond-the-fenceline measures identified by EPA or to account for the disruption and dislocation caused by the imposition of impossible-to-achieve emissions limits on power plants. If EPA effectively mandates the retirement of coal-fired plants, state utility and electricity regulators will have to respond in the same way as if the state itself had ordered the retirements. Likewise, if EPA mandates the installation of massively expensive control technologies or requires measures that disrupt the output of coal-fired plants, the states again will be left to pick up the regulatory slack. In other words, even if a state is willing to accept the consequences of declining to regulate it still does not remain free to decline to carry out aspects of the Proposed Rule—that is, to implement federal policy.79 In addition, as discussed below, to the limited extent that the Proposed Rule may be regarded as imposing conditions on the receipt of federal highway funds, it is unconstitutionally coercive.

This “heads EPA wins, tails the State loses” aspect of the Proposed Rule is particularly damaging to political accountability. It will be counterintuitive, to say the least, for citizens of a state that declines to directly implement the Clean Power Plan to understand that the higher electric rates that they suffer as a result of state measures to maintain reliability are actually the consequence of EPA’s actions. To the contrary, citizens are far more likely to draw the conclusion that these negative impacts are the result of the state’s actions, which would get the chain of causation backwards.

Finally, the Proposed Rule is not the kind of regulation of state activities that the Supreme Court upheld in South Carolina v. Baker80 and Reno v. Condon.81 Baker upheld a federal statute that effectively required states to issue registered bonds.82 And Reno upheld a federal statute restricting a state’s ability to sell drivers’ personal information without their consent.83 The Court found in both cases that the laws at issue “‘regulated state activities,’ rather than ‘seeking to control or influence the manner in which States regulate private parties.’”84 By contrast, the Proposed Rule does exactly what both opinions identified as impermissible: “require the [state] to enact any laws or regulations” and “require state officials to assist in the enforcement of federal statutes regulating private individuals.”85 That means, as the Court recognized in Reno, that New York and Printz control.

In sum, the Proposed Rule violates the Tenth Amendment’s anti-commandeering doctrine and therefore exceeds the federal government’s constitutional authority.86

III. The Proposed Rule Unlawfully Coerces the States

Just as the federal government may not commandeer states to carry out federal policy, it also may not coerce them to the same end by denying them “a legitimate choice whether to accept the federal conditions.”87 The Proposed Rule violates this anti-coercion doctrine in two respects: first, by potentially leveraging federal highway funds to coerce states into implementing a new federal regulatory program; second, by threatening to punish the citizens of states (as well as the states themselves) that do not carry out federal policy.

A. The Spending Clause

The Constitution empowers Congress to “lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.”88 “Incident to this power, Congress may attach conditions on the receipt of federal funds” and thereby encourage states to carry out federal policy.89 But the federal government exceeds its constitutional authority when “‘the financial inducement’” is “‘so coercive as to pass the point at which pressure turns into compulsion.’”90

Thus, in NFIB v. Sebelius, the Supreme Court severed a statutory provision that leveraged states’ existing Medicaid funding to coerce them to implement a fundamentally new program.91 The Chief Justice reasoned that, when new conditions imposed by Congress on funding “take the form of threats to terminate other significant independent grants, the conditions are properly viewed as a means of pressuring the States to accept policy changes.”92 That pressure becomes unconstitutional compulsion when the amount of funds at stake comprises a substantial portion of existing funding and the new conditions “accomplish[] a shift in kind, not merely degree” to the existing program93—that is, they “‘surpris[e] participating States with post-acceptance or ‘retroactive’ conditions.’”94 Thus, the Medicaid expansion constituted unconstitutional coercion because it amounted to an attempt to “‘conscript state agencies into the national bureaucratic army.’”95 The remedy was to give states the option of participating in the new program, without putting at risk their existing funding.96 The Court’s reasoning has been described as establishing an “anti-leveraging principle.”97

That principle calls into question, as a general matter, the constitutionality of the Clean Air Act’s threat to withhold federal highway funding from states that fail to implement and enforce certain regulatory requirements.98 The basic argument is straightforward: “Congress has told states that wish to continue participating in the entrenched and lucrative federal highway program that they can do so only if they also agree to participate in a separate and independent program for reducing air pollution.”99

Professor Jonathan Adler of Case Western Reserve University School of Law has spelled out the argument’s particulars:

First, the Clean Air Act conditions the receipt of money for one program (highway construction) on compliance with conditions tied to a separate program (air pollution control). This may be problematic because a majority of the Court [in NFIB] thought Congress was trying to leverage state reliance on funding for one program (traditional Medicaid) to induce participation in another program (the Medicaid expansion). While the money at stake under the Clean Air Act is far less—most states receive substantially less in highway funds than in Medicaid funds—highway funding is less directly related to air pollution control (particularly from stationary sources) than traditional Medicaid is to the Medicaid expansion.

Though highway funding is less than that for Medicaid, it still may be enough to raise constitutional concerns. Highway funds are raised from a dedicated revenue source in gasoline taxes and placed in the Highway Trust Fund. For many states, federal highway funds represent the lion’s share of their transportation budget. As a consequence, threatening to take highway funds may strike some courts as unduly coercive under NFIB….

The Court in NFIB also stressed that conditional grants of federal funds operate much like a contract, and that the parties are limited in their ability to unilaterally revise the terms. This could expose another vulnerability in the Clean Air Act because while the statutory requirements don’t regularly change, what states must actually do to comply with the Clean Air Act’s terms do. The requirements for state pollution control plans are constantly changing, as the EPA tightens or otherwise revises federal air quality standards and additional pollutants become subject to Clean Air Act regulation. Were this not enough, the recent inclusion of greenhouse gases as pollutants subject to regulation under the Act has radically altered states’ obligations, such that states will now have to do many things they could not have anticipated when the Clean Air Act was last revised in 1990.100

The Proposed Rule is particularly vulnerable under this analysis, for three reasons. First, the regulation of emissions by stationary sources—unlike, arguably, emissions by mobile sources—has absolutely nothing to do with the purposes of the highway funds program.101 Regulation of dispatch, development and integration of zero-emissions generation capacity, and demand-side energy efficiency regulation are even further removed. Second, the Proposed Rule surprises states with new conditions that they never could have imagined when they chose to accept highway funds or to regulate under the Clean Air Act. Whereas prior conditions concerned the control of emissions, the Proposed Rule requires states, for the first time ever, to exercise their previously independent regulatory authority over energy resources and utilities to carry out federal policy. Third, in addition to the substantial amount of money at stake,102 the Proposed Rule conditions states’ continued electric reliability on states’ regulatory actions to mitigate the impact of the steps necessary to achieve the rule’s targets. States, of course, depend on electric reliability to carry out their core police powers, such as public safety and the basic operation of government. EPA’s inducement is therefore “much more than relatively mild encouragement—it is a gun to the head.”103

NFIB suggests that the appropriate remedy would be to sever the penalty. While the federal government may offer conditional grants to encourage states to act, what it “is not free to do is to penalize States that choose not to participate in that new program by taking away their existing [programmatic] funding.”104 Like the statute at issue in NFIB, the Clean Air Act contains a severability clause.105

Alternatively, the preamble of the Proposed Rule states EPA’s view that its individual “building blocks” are severable, “such that in the event a court were to invalidate our finding with respect to any particular building block, we would find that the [standard of performance] consists of the remaining building blocks.”106 “Whether the offending portion of a regulation is severable depends upon the intent of the agency and upon whether the remainder of the regulation could function sensibly without the stricken provision.”107 Because the courts examine these two factors independently, an agency’s preference with respect to severability is not dispositive of the question.108 The D.C. Circuit has declined, over an agency’s entreaties, to sever a portion of a regulation where so doing would cause “loss of flexibility” (a key concern of the regulation) among regulated parties.109 Elsewhere in the Proposed Rule, EPA recognizes that “state flexibilities”—its way of referring to things other than source-level emissions controls—are essential to achieving the rule’s interim and final targets.110 As a result, despite EPA’s stated preference to the contrary, the individual building blocks are not severable in light of the Proposed Rule’s structure and requirements.111 Accordingly, the Act’s severability clause should govern with respect to any penalties.

Published reports of recent public remarks by the EPA Administrator suggest that EPA’s current position is that it lacks authority to withhold highway funds from states that do not submit Clean Power Plan SIPs or from states whose SIPs EPA disapproves, on the basis that the Act’s highway-funds penalty applies only to SIPs under the national ambient air quality standards program.112 While this position is the best reading of the Clean Air Act, and may well be the only permissible reading, EPA does not appear to have made any legally binding statements that this is how it interprets the Act. And if EPA were to do so, the Agency likely would be due deference on such jurisdictional determinations,113 raising the specter that not addressing the coercive aspects of the Clean Power Plan would simply do nothing more than delay the problem until the Plan is sufficiently entrenched throughout the country that the practical effects of its coercive regime would be impossible to reverse.

In sum, the Proposed Rule cannot be regarded as a proper exercise of the federal government’s Spending Clause power to encourage the states to act. It is, instead, an improper attempt to leverage the states’ receipt of highway funds to implement a new and surprising set of conditions and, therefore, violates the anti-coercion principle.

B. The Commerce Clause

The anti-coercion rationale of NFIB applies equally to attempts to employ the Commerce Clause power as a “‘weapon of coercion, destroying or impairing the autonomy of the states.’”114 Whether Congress is threatening to abuse its Spending Clause authority by curtailing existing funding to force states to implement a new and fundamentally different program, or threatening to impair states’ sovereign prerogatives and injure their citizens if they choose not to “opt in” to a cooperative federalism program promulgated under the auspices of the Commerce Clause, the Tenth Amendment operates to prevent the federal government from acting to “‘conscript state [agencies] into the national bureaucratic army.’”115

Applying the same factors as under the Spending Clause, a Commerce Clause regulation “has crossed the line distinguishing encouragement from coercion” when it leverages an existing and substantial entitlement of the citizens of a state or the state itself on a conditional basis in order to induce the state to implement federal policy.116 When, “‘not merely in theory but in fact,’” such threats amount to “economic dragooning that leaves the States with no real option but to acquiesce” to federal demands, they impermissibly “undermine the status of the States as independent sovereigns in our federal system.”117

That describes the Proposed Rule. EPA has stated that, if the states decline to implement its terms, the agency will impose a federal plan that does so.118 But the agency lacks authority to carry out the actions described in its second, third, and fourth building blocks.119 Thus, a federal plan would have to focus on heat-rate improvements at coal-fired facilities, and—to achieve anywhere near the 30 percent average reduction in CO2 emissions targeted by EPA—would have to impose controls so burdensome that they would force plant retirements and cripple the states’ electric power systems.120 The point, of course, would be to force states to pick up the slack necessary to maintain affordable and reliable electric service through “beyond-the-fenceline” measures that are beyond EPA’s authority, regardless of whether a state chooses to fix the problems that EPA has created through a state implementation plan or through other “voluntary” measures. In neither instance could it be said that the decision to adopt or reject EPA’s preferred policies “‘remained the prerogative of the States.’”121 Instead, EPA’s “inducement” “is a gun to the head,” in light of the disruption and dislocation to citizens and the state itself if EPA were to carry out its threat.122

In sum, while EPA has the authority pursuant to the Commerce Clause to directly regulate certain emissions by stationary sources, a federal plan to implement the Proposed Rule would be inevitably and inherently coercive to the states.123

IV. Constitutional Avoidance

A court reviewing final action that is materially similar to EPA’s Proposed Rule could apply the doctrine of constitutional avoidance to preclude EPA from interpreting Section 111 in a way that exceeds the limits of federal power. The statutory language is not only readily amenable to such an interpretation, but is best read that way.

Out of respect for Congress, which is also bound by and swears an oath to uphold the Constitution, federal courts must construe statutes, “if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.”124 Thus, “where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.”125

Such an acceptable construction is available here. The key statutory term underlying EPA’s constitutionally suspect “building block” approach is “best system of emission reduction,” which the agency defines to include any possible “measures…to improve emission rates and to reduce or limit…emissions.”126 In effect, the agency views anything relating to a source—no matter how tenuously related or far removed—as fair game for regulations that nominally apply to the source alone. Among the problems with this approach is that it brooks no limiting principle; EPA claims authority to force states to regulate anything connected to the electric system and anyone using electricity, in any way that might reduce electricity consumption. As shown above, the Proposed Rule’s constitutional infirmities are the result of its attempted centralization of the energy economy through measures that occur beyond the fenceline, in addition to more typical source-level requirements.

But EPA’s unbounded definition of “best system of emission reduction” is not the only or the best reading of the term. The Supreme Court, viewing this language, easily recognized that it refers to “technologically feasible emission controls”—that is, emission-reduction technologies implemented at the source.127 Indeed, EPA has reached the same conclusion in the context of Section 111(b) standards, which rely on the same term, explaining that that provision “assur[es] cost-effective controls are installed on new, reconstructed, or modified sources.”128 This reading, limited to source-level measures, also avoids constitutional doubt, because it concerns only sources of emissions themselves, which Congress unquestionably has the authority to regulate.

Accordingly, to avoid the constitutional problems identified in this analysis, a federal court would be required to read the statutory term “best system of emission reduction” to encompass only source-level measures and would, on that basis, have to vacate EPA’s action as contrary to law.

V. Conclusion

What’s past is prologue, and this is not the first time that EPA has been oblivious to the constitutional limits on its authority to force the states to administer its own programs. In the mid-1970s, as the agency was still working out the terms of its relationship with the states under the Clean Air Act Amendments of 1970, it “order[ed] the states to enact statutes and to establish and administer programs to force their citizens to comply with [its] federal directive[s].”129 That effort was stopped in its tracks by three decisions, in quick succession, of the courts of appeals, astonished that a federal agency would attempt to arrogate such authority to itself.130 By the time the Supreme Court agreed to review the regulations, “the Government declined even to defend them, and instead rescinded some and conceded the invalidity of those that remained.”131

Since that time, the Supreme Court has been particularly attentive to overreaching by the federal government in its relationship with the states. Decisions like New York, Printz, and NFIB have recognized clear prohibitions on federal attempts to commandeer the states, to commandeer their officials, and to coerce them into action. The only constant in this changing field is that EPA has ignored these constitutional imperatives in its zeal to regulate. The best that can be said of the agency’s proposed Clean Power Plan is that, if finalized in anything like its current form, it will provide another valuable opportunity for the courts to advance the cause of federalism when they strike it down.


1  42 U.S.C. § 7401(a)(3).

2  Gen. Motors Corp. v. United States, 496 U.S. 530, 532 (1990).

3  See generally 42 U.S.C. § 7410.

4  See 42 U.S.C. § 7410(a)(2)(A)–(M).

5  Train v. NRDC, 421 U.S. 60, 71 n.11 (1975).

6  Id. at 79.

7  42 U.S.C. § 7411(d)(1).

8  Id.

9  42 U.S.C. § 7411(a)(1).

10  42 U.S.C. § 7411(d)(1)(B).

11  42 U.S.C. § 7411(d)(2).

12  79 Fed. Reg. 34,830, 34,832/2 (June 18, 2014).

13  Id. at 34,832/3.

14  Id. at 34,833/1.

15  Id. at 34,836/1.

16  Id. at 34,836, 34,859, 34,862–63, 34,866–68, 34,871.

17  EPA, Fact Sheet: Clean Power Plan Flexibility: Flexible Approach to Cutting Carbon Pollution, June 2, 2014,

18  79 Fed. Reg. at 34,954/1.

19  Id.

20  Id. at 34,836/2.

21  Id. at 34,926/2 (reciting EPA’s assumption that efficiency gains will reduce emissions by 6 percent, on average).

22  See, e.g., Decl. of Scott Deloney, Indiana Department of Environmental Management, at ¶ 3, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014); Decl. of Laura Crowder, West Virginia Department of Environmental Protection, at ¶¶ 4, 7, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014); Decl. of Thomas Gross, Kansas Department of Health and Environment, at ¶ 3, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014); Decl. of Brian Gustafson, South Dakota Department of Environment and Natural Resources, at ¶¶ 6, 8, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014); Decl. of Todd Parfitt, Wyoming Department of Environmental Quality, at ¶¶ 5–6, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014).

23  See, e.g., Decl. of Laura Crowder, West Virginia Department of Environmental Protection, at ¶ 4, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014).

24  79 Fed. Reg. at 34,926/2 (6 percent, on average, per EPA). And even that may not be achievable in many states. See, e.g., Decl. of Laura Crowder, West Virginia Department of Environmental Protection, at ¶ 4, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014).

25  See, e.g., Decl. of Laura Crowder, West Virginia Department of Environmental Protection, at ¶ 4, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014); Decl. of Thomas Gross, Kansas Department of Health and Environment, at ¶ 3, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014).

26  See Decl. of Brian Gustafson, South Dakota Department of Environment and Natural Resources, at ¶ 9, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014).

27  Id.

28  See, e.g., Decl. of Robert Hodanbosi, Ohio Environmental Protection Agency, at ¶ 5.B, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014) (current law and practices “require[] that the plants are dispatched in an economic manner with the most economic being used first”).

29  Decl. of Scott Deloney, Indiana Department of Environmental Management, at ¶ 3, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014); Decl. of Robert Hodanbosi, Ohio Environmental Protection Agency, at ¶ 5.B, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014).

30  Decl. of Brian Gustafson, South Dakota Department of Environment and Natural Resources, at ¶ 10, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014).

31  Decl. of Todd Parfitt, Wyoming Department of Environmental Quality, at ¶ 6, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014).

32  Decl. of Thomas Gross, Kansas Department of Health and Environment, at ¶ 3, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014).

33  Decl. of Laura Crowder, West Virginia Department of Environmental Protection, at ¶ 5, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014);

34  Decl. of Thomas Gross, Kansas Department of Health and Environment, at ¶ 3, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014).

35  Decl. of Robert Hodanbosi, Ohio Environmental Protection Agency, at ¶ 5.D, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014).

36  Id.

37  79 Fed. Reg. at 34,899/3, 34,901/3, 34,907/1, 34,933/1, 34,935/1 (acknowledging that the Proposed Rule will require retirements).

38  Decl. of Todd Parfitt, Wyoming Department of Environmental Quality, at ¶ 6, West Virginia v. EPA, No. 14-1146 (D.C. Cir. filed Nov. 26, 2014).

39  U.S. Const. amend. X.

40  United States v. Darby, 312 U.S. 100, 124 (1941).

41  New York v. United States, 505 U.S. 144, 156 (1992).

42  Id.

43  Id. at 161.

44  Id. at 166.

45  Id. at 153–54. If the state did not take possession of the waste, it would nonetheless be “liable for all damages directly or indirectly incurred” as a result of its failure to do so. Id.

46  Id. at 167 (quoting South Dakota v. Dole, 483 U.S. 203, 206 (1987)). Which is not to suggest that the Proposed Rule is a proper exercise of that power. See infra § III.A.

47  Id.

48  Id. at 168.

49  Id. at 169.

50  Id. at 175.

51  Id. at 176–77.

52  Id. at 178, 181.

53  Id. at 188.

54  521 U.S. 898 (1997).

55  Id. at 903–04.

56  Id. at 904.

57  Id. at 928 (alterations omitted) (quoting Brown v. EPA, 521 F.2d 827, 839 (9th Cir. 1975), vacated on other grounds, 431 U.S. 99 (1977)).

58  Id. (quotation marks omitted).

59  79 Fed. Reg. at 34,836/1.

60  Id. at 34,859/3 (“EPA believes that implementation of all identified best practices and equipment upgrades at a facility could provide total heat rate improvements in a range of approximately 4 to 12 percent.”).

61  16 U.S.C. § 824(b)(1). See also 42 U.S.C. § 2021(k) (recognizing presumptive role of states in power regulation).

62  Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 206 (1983).

63  Id. at 212.

64  Id. (quoting Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 550 (1977)).

65  Crucially, the statute says absolutely nothing about preempting states’ traditional regulation of utilities and generation. See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (“[W]e start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.”); United States v. Bass, 404 U.S. 336, 349 (1971) (“[U]nless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance.”); Will v. Michigan Dep’t of State Police, 491 U.S. 58, 65 (1989); Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (“Congress may legislate in areas traditionally regulated by the States. This is an extraordinary power in a federalist system. It is a power that we must assume Congress does not exercise lightly.”); Bond v. United States, 134 S. Ct. 2077, 2088–90 (2014). Moreover, the Proposed Rule and its preamble do not discuss or even mention preemption. Cf. Wyeth v. Levine, 555 U.S. 555, 576–77 (2009) (suggesting that an agency’s assertion of preemption may be a necessary, but not sufficient, condition for an ambiguous federal statute to preempt state law).

66  79 Fed. Reg. at 34,833/2, 34,900/3.

67  Id. at 34,902/1.

68  Id. at 34,914/3.

69  Id. at 34,917/3.

70  Id.

71  Id. at 34,897/1–98/1.

72  505 U.S. at 177. Although EPA may impose, administer, and enforce a federal plan that addresses the kind of efficiency improvements implicated by its first building block, 42 U.S.C. § 7411(d)(2), as described below, implementation of the other building blocks will require state action, which EPA does not claim the authority to preempt.

73  505 U.S. at 188.

74  FERC v. Mississippi, 456 U.S. 742 (1982), does not alter this conclusion, for two reasons. First, FERC upheld “only the ‘command’ that state agencies ‘consider’ federal standards, and again only as a precondition to continued state regulation of an otherwise pre-empted field.” Printz, 521 U.S. at 926. The Proposed Rule, by contrast, requires states to carry out federal policy and does not offer to relieve states of the burden of so doing. Second, to the extent that FERC could be read to approve an broader conception of permissible commandeering, that holding has been narrowed (if not entirely overruled) by New York, 505 U.S. at 161–62 (FERC “upheld the statute at issue because it did not view the statute as such a command”), and Printz, 521 U.S. at 926. See also New York, 505 U.S. at 204–05 (White, J., concurring in part and dissenting in part) (accusing the majority of overriding FERC).

75  Id. at 167.

76  In at least one instance, EPA has approved a SIP revision limiting utilization of a facility, which would be among the measures required to carry out the Proposed Rule’s second building block. Approval and Promulgation of Air Quality Implementation Plans; Oklahoma; Regional Haze and Interstate Transport Affecting Visibility; State Implementation Plan Revisions; Revised BART Determination for American Electric Power/Public Service Company of Oklahoma Northeastern Power Station Units 3 and 4, 79 Fed. Reg. 12,944, 12,945/1 (Mar. 7, 2014). EPA, however, never claimed authority to carry out such measures itself through a federal plan. See id. at 12,951/2 (noting that the preexisting FIP “does not restrict capacity utilization”). Such reductions would also have to be accompanied by other state regulatory action that is not within EPA’s purview, such as changes to dispatch and utility regulation.

77  Contrast with Hodel v. Va. Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264 (1981), which concluded that the Surface Mining Control and Reclamation Act of 1977 did not present a commandeering problem because it merely made compliance with federal standards a precondition to continued state regulation in an otherwise pre-empted field. See also Printz, 521 U.S. at 926.

78  The Clean Air Act provides EPA authority to withhold federal highway funding from states that fail to make certain approvable SIP submissions or fail to enforce their SIPs. 42 U.S.C. § 7509. This penalty is discussed further below.

79  Compare to New York, 505 U.S. at 176 (“Either way, ‘the Act commandeers the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.’”) (quoting Hodel, 452 U.S. at 288).

80  485 U.S. 505 (1988)

81  528 U.S. 141 (2000)

82  485 U.S. at 514–15.

83  528 U.S. at 143–44, 151.

84  Id. at 150 (alterations omitted) (emphasis added) (quoting Baker, 485 U.S. at 514–15).

85  Id. at 151. See also Baker, 485 U.S. at 514 (explaining that statute “does not…seek to control or influence the manner in which States regulate private parties”).

86  The Proposed Rule asserts that each of its four building blocks is severable. 79 Fed. Reg. at 34,892/2. This claim is discussed and rejected in § III.A.

87  NFIB v. Sebelius, 132 S. Ct. 2566, 2602 (2012) (Roberts, C.J.). Chief Justice Roberts’s opinion, being the “position taken by those Members who concurred in the judgments on the narrowest grounds,” is controlling. Marks v. United States, 430 U.S. 188, 193–94 (1977) (quotation marks omitted). Subsequent citations to NFIB refer to the Chief Justice’s controlling opinion, unless otherwise noted.

88  U.S. Const. art. I, § 8, cl. 1.

89  Dole, 483 U.S. at 206.

90  NFIB, 132 S. Ct. at 2604 (quotation marks omitted) (quoting Dole, 483 U.S. at 211).

91  Id. at 2606–07.

92  Id. at 2604.

93  Id. at 2605.

94  Id. at 2606 (quoting Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1, 25 (1981)).

95  Id. at 2607 (alteration omitted) (quoting FERC, 456 U.S. at 775 (O’Connor, J., concurring in judgment in part and dissenting in part)). The joint NFIB dissent of Justices Scalia, Kennedy, Thomas, and Alito reaches the same conclusion based on arguably broader reasoning. See id. at 2661, 2666 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting).

96  Id. at 2607.

97  Samuel Bagenstos, The Anti-leveraging Principle and the Spending Clause After NFIB, 101 Geo. L.J. 861, 871 (2013) [hereinafter Bagenstos].

98  42 U.S.C. § 7509.

99  Bagenstos, supra note 97, at 917.

100  Jonathan Adler, Could the Health Care Decision Hobble the Clean Air Act?, July 23, 2012, See also Jonathan Adler, Judicial Federalism and the Future of Federal Environmental Regulation, 90 Iowa L. Rev. 377, 449–52 (2005) (pre-NFIB analysis finding that “[i]t is not clear that threatening federal highway moneys falls squarely within Dole’s holding”).

101  Bagenstos, supra note 97, at 918–19 (“Insofar as they address stationary sources of pollution, the CAA’s requirements would appear, on the same analysis, to be separate and independent from the highway-grant program. Those requirements do not govern how states should construct and maintain highways. Nor do they govern the processes by which states should choose which highways to construct and maintain. And they do not even govern the use of the highways constructed or maintained with federal funds.”) (footnotes omitted).

102  See id. at 919 (“The average state receives more than three-quarters of a billion dollars a year in federal transportation funds,” accounting for nearly 8 percent of its budget.).

103  NFIB, 132 S. Ct. at 2604 (quotation marks omitted).

104  Id. at 2607.

105  42 U.S.C. § 7615.

106  79 Fed. Reg. at 34,892/2.

107  MD/DC/DE Broadcasters Ass’n v. FCC, 236 F.3d 13, 22 (D.C. Cir. 2001) (citing K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 294 (1988)).

108  Id.

109  Id.

110  E.g., 79 Fed. Reg. at 34,837/2 (explaining that interim goals depend on such flexibilities); id. at 34,864/2 (accomplishing “necessary” infrastructure improvements depends on “state flexibilities”); id. at 34,898/1 (flexibilities “ensure that states will be able to achieve their final CO2 emission performance goals”).

111  In addition, it is not apparent that the Proposed Rule’s “building blocks” are the appropriate subjects of severability analysis, given that EPA uses them to calculate overall emissions reductions and purports not to mandate that states achieve specific emissions reductions with respect to each building block. See id. at 34,837. In other words, the building blocks themselves are not requirements, but inputs to EPA’s state-specific target calculations, and it is the requirement to achieve the targets that causes the rule to be unconstitutional.

112  See Jean Chemnick, Agency won’t withhold highway funds for Clean Power Plan—McCarthy, E&E News PM, Mar. 30, 2015.

113  See City of Arlington v. FCC, 133 S. Ct. 1863 (2013).

114  NFIB, 132 S. Ct. at 2603 (alteration omitted) (quoting Charles C. Steward Mach. Co. v. Davis, 301 U.S. 548, 586 (1937)).

115  Id. at 2606–07 (quoting FERC, 456 U.S. at 775 (O’Connor, J., concurring in judgment in part and dissenting in part)).

116  Id. at 2603 (quotation marks omitted).

117  Id. at 2602, 2604–05 (quoting Dole, 483 U.S. at 211–12).

118  79 Fed. Reg. at 34,951/2. See also Timothy Cama, EPA delays landmark climate rule, The Hill, Jan. 7, 2015, (quoting EPA official’s statement that the agency intends “to have a federal plan available, should there be states that don’t submit plans”).

119  See supra § II; William Yeatman, What Would a Clean Power Plan FIP Look Like?, Jan. 14, 2015,
14/what-would-a-clean-power-plan-fip-look-like/; Comments of Hon. Charles W. Pickering, Sr. & Hon. Thomas Scott, EPA-HQ-OAR-2013-0602-33150, Dec. 1, 2014 (“Pickering & Scott Comments”).

120  Pickering & Scott Comments at 43–44.

121  NFIB, 132 S. Ct. at 2604 (alteration omitted) (quoting Dole, 483 U.S. at 211).

122  Id.

123  The holding of New York v. United States, 505 U.S. 144, 173–74 (1992), regarding the “access incentive” of the Low–Level Radioactive Waste Policy Amendments Act of 1985, is not to the contrary. That provision provided that “[s]tates may either regulate the disposal of radioactive waste according to federal standards…, or their residents who produce radioactive waste will be subject to federal regulation authorizing sited States and regions to deny access to their disposal sites.” Id. at 174. The Court held that this was a permissible “conditional exercise of Congress’ commerce power” that “does not intrude on the sovereignty reserved to the States by the Tenth Amendment.” Id. First, by contrast, a federal plan implementing the Proposed Rule would invade state sovereignty by inhibiting states’ exercise of their traditional police powers, which depend on a reliable electric system. Second, the state would not have the “the choice of regulating that activity according to federal standards or having state law pre-empted by federal regulation,” id. at 173–74, in light of EPA’s inability to directly impose most of the regulatory activities targeted by the Proposed Rule. And third, it follows that a state would not be free to “continue to regulate…in any manner its citizens see fit,” id. at 174, given the necessity of state action to mitigate the impact of federal action in the absence of complete preemption. In this respect, the Proposed Rule is much more like the “take title” provision that the Court rejected. As it explained, “[a] choice between two unconstitutionally coercive regulatory techniques is no choice at all.” Id. at 176. Nevada v. Skinner, 884 F.2d 445, 453 (9th Cir. 1989), is inapt for the same reasons, fails to anticipate the anti-commandeering and anti-coercion doctrines of New York and NFIB, and has been (at least in part) abrogated by New York.

124  United States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916).

125  DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988).

126  79 Fed. Reg. at 34,836/1. See also id. at 34,888/3–89/1 (discussing objections to this definition).

127  Hancock v. Train, 426 U.S. 167, 193 (1976). See also PPG Indus., Inc. v. Harrison, 660 F.2d 628, 636 (5th Cir. 1981) (“Setting standards which in effect require a use of a certain type of fuel, without regard to other types of emission control, appears to be a work practice or operation standard beyond the statutory authority of the EPA.”); Bethlehem Steel Corp. v. EPA, 651 F.2d 861, 869 (3d Cir. 1981) (“system” is something that a source can “install”).

128  73 Fed. Reg. 34,072, 34,073/2 (June 16, 2008).

129  District of Columbia v. Train, 521 F.2d 971, 990 (1975), vacated on other grounds by EPA v. Brown, 431 U.S. 99 (1977).

130  Id. at 994; Maryland v. EPA, 530 F.2d 215, 226 (4th Cir. 1975); Brown v. EPA, 521 F.2d 827, 838–42 (9th Cir. 1975).

131  Printz, 521 U.S. at 925.


Hillary’s Unlawful Plan to Overrule Voter ID Laws

June 11, 2015 7:26 p.m. ET

Declaring that Republican-controlled states have “systematically and deliberately” tried to “disempower and disenfranchise” voters, Hillary Clinton has called for a sweeping expansion of federal involvement in elections. In a speech last week in Houston, laying out what promises to be a major campaign theme, Mrs. Clinton called for automatic voter registration at age 18, a 20-day early-voting period and a maximum 30-minute wait period to vote.

She has also endorsed the idea of a federal law permitting convicted felons to vote and allowing individuals, such as students, who reside in one state to vote in another. All of these federal mandates would augment and make more onerous an unconstitutional election-regulating federal statute known as the “Motor Voter” law enacted during her husband’s White House tenure.

A federal takeover of election laws—and rolling back state voter-ID laws intended to discourage election fraud—is a high priority for progressives. The billionaire financier George Soros reportedly has pledged $5 million to bankroll legal challenges to laws like those that Mrs. Clinton decries. Part of the effort is intended simply to galvanize the Democratic base by stoking a sense of grievance, but the strategy should be taken seriously—and rebutted as unconstitutional.

The Constitution gives Congress the power to regulate federal elections, not state ones. It also distinguishes between the regulation of presidential versus congressional elections. Specifically, under Article I, Section 4—the Elections Clause—while the states have primary responsibility for regulating congressional elections, Congress can pre-empt their rules by regulating “times, places and manner of holding Elections for Senators and Representatives,” except that Congress cannot regulate the “places of chusing [sic] Senators.”

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A legal cure for the FDA’s free speech malady


We are free to tell you that a clinical trial shows the drug Vascepa to be an effective treatment for persistently high triglyceride levels. But should the drug’s manufacturer, Amarin, tell you or your doctor the same thing, the company would face criminal prosecution and civil liability. Therein lies a First Amendment anomaly, one that may finally be resolved by a lawsuit that Amarin filed earlier this month against the Food and Drug Administration.

The FDA has long banned promotion of drugs for uses other than those it has approved. Yet so-called off-label uses are legal and account for about 20% of all prescriptions. Some off-label uses of drugs have even become the standard of care for particular conditions.

But the drug’s manufacturer and its agents—and only them—cannot legally talk about this. Patients can—and do—discuss off-label uses of drugs endlessly in online forums. Doctors certainly exchange information about these uses.

But Amarin can’t say anything about the Vascepa trial. The drug is approved only as a treatment for “very high” triglyceride levels, not those that are merely persistently high. As a result, doctors and their patients are being kept in the dark about a treatment that, for some patients, has fewer side effects than other drugs.

The FDA claims its speech ban is a necessary part of its drug-approval process, which requires manufacturers to demonstrate efficacy for each intended use. The agency aggressively investigates and the government regularly prosecutes pharmaceutical companies and their representatives that promote off-label uses of their drugs. Yet once a drug is approved, doctors can prescribe it for any use—and the FDA recognizes, in its regulatory guidance—that such uses are essential to effectively translate medical research into improved health outcomes.

The only real explanations for the FDA’s conduct are maintaining tight control over pharmaceutical companies and bureaucratic aggrandizement.

The FDA’s ban on discussing off-label drug uses is indefensible under First Amendment law. The speech it bans is truthful, not misleading, and concerns a lawful activity. Yes, the government has a substantial interest in drug safety and public health, but banning truthful speech on health issues won’t advance public health. Drug manufacturers know more about their products than anyone else. The off-label promotion ban denies doctors’ and patients’ abilities to make informed and intelligent treatment decisions. As the Supreme Court recognized in Sorrell v. IMS Health Inc. (2011)—which struck down a state law prohibiting the sale of prescribing data to pharmaceutical companies—“information can save lives.”

Blocking such information could cost lives. New uses for existing treatments are discovered all the time. The recent Ebola outbreak, for example, prompted researchers to evaluate the efficacy of existing antiviral drugs against the disease, hoping to find an off-label match. That process continues for survivors who face lingering symptoms. When Dr. Ian Crozier, an Ebola survivor, was recently found to still harbor the virus in his eye, doctors successfully treated him with an experimental antiviral drug. Another recent example is Rapamune, an immunosuppressant approved for use in kidney transplants that has been found to suppress certain types of cancers, including of the lung.

A prohibition on the promotion of off-label drug uses by means of false or misleading information—in other words by fraud—would surely pass constitutional muster. Moreover, the FDA could also assist doctors and patients in sorting through information regarding off-label uses, much as it already provides safety information for approved uses on its website. The agency could even ban particular off-label uses where this was necessary to protect public health.

But the FDA has no intention of loosening its grip. In 2012 the Second Circuit Court of Appeals overturned—on First Amendment grounds—the conviction of a pharmaceutical sales rep for talking to physicians about the off-label uses of narcolepsy drug Xyrem. However, the agency has not appealed the decision in United States v. Caronia, most likely to avoid an adverse ruling by the Supreme Court that would apply across the country.

Unfortunately, even if the government loses the Amarin case, it will again probably forgo an appeal. This would enable the FDA to continue enforcing a flagrantly unconstitutional policy by default. The best prospect for a cure may lie in Congress.

Messrs. Rivkin and Grossman are attorneys with the BakerHostetler firm in Washington, D.C.

Enduring incivility for the sake of free speech

By David B. Rivkin Jr. and Andrew M. Grossman — Sunday, April 19, 2015

First Amendment lawyers always get asked the same question: Is he really allowed to say that?

The “he,” inevitably, is some television pundit, newspaper columnist or blogger. And the “that” is a stream of invective. A pointed example is economist Paul Krugman’s characterization of Rep. Paul Ryan’s 2012 budget proposal: “The most fraudulent budget in American history. And when I say fraudulent, I mean just that.”

So if he meant “just that,” the question goes, isn’t that libel, and why isn’t Mr. Ryan suing him for damages?

And from time to time, we’ve heard the same question raised about one of our own cases, climate scientist Michael Mann’s lawsuit against detractors who harshly criticized his “hockey stick” research. We represent two of the defendants, the Competitive Enterprise Institute and its adjunct fellow, Rand Simberg. They called Mr. Mann’s work “intellectually bogus” and biased “data manipulation” done “in the service of politicized science.”

So is it libel? Some may respond with a smirk that truth is an absolute defense, but the answer is actually more basic: There’s nothing to be proven true or false.

Libel law is subject to the First Amendment. Its guarantee of freedom of speech wouldn’t be worth much if the government could authorize private citizens to sue one another over their views. At a minimum, a challenged statement must contain (in the Supreme Court’s formulation) a “provably false factual connotation.”

As simple as that rule is to articulate, it has proven complicated to apply in practice. It is not an “opinion defense.” In other words, one cannot escape liability for a slander — for example, “Rep. Jones took a bribe” — merely by prefacing it with “I think” or “In my opinion.”

At the same time, it is also not enough that a challenged statement merely involve facts. If that were the rule, practically any speech could be the basis for a lawsuit. Assertions of fact underlie nearly all statements of opinion, and basic human communication — let alone punditry and debate — would be impossible if the airing of sharp opinions could lead to a court battle.

The U.S. Court of Appeals for the District of Columbia Circuit was forced to confront these issues directly when Dan Moldea, author of the expose “Interference: How Organized Crime Influences Professional Football,” brought suit against The New York Times over an unfavorable review that said the book was marred by “too much sloppy journalism.” No doubt that conclusion could damage the career of a professional journalist like Mr. Moldea, causing him the kind of injury recognized by libel law. On the other hand, though, isn’t spirited criticism at the heart of the First Amendment? This was the same line-drawing problem that had vexed courts for decades: how to separate protected commentary on the facts from potentially libelous statements of fact.

The D.C. Circuit’s solution was elegant. “Sloppy journalism” couldn’t be libel because it was a “supportable interpretation” of the undisputed facts: the contents of the book discussed in the review. “Interference” contained what the reviewer identified as several errors and omissions, and a reader would understand that the negative conclusion was simply “the writer’s interpretation of the facts presented.” Or, as one appeals court put the more general principle, if a speaker “is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable” as libel.

This approach has been widely adopted. Thus, courts have recognized First Amendment protection for things like a critic’s dig at a second-rate “Phantom of the Opera” (“a rip-off, a fraud, a scandal, a snake-oil job”), a sports columnist’s criticism of a basketball coach (she “usually finds a way to screw things up”), and a magazine’s charge that a political firebrand suffered “bouts of pessimism and paranoia.” It equally protects Paul Krugman’s intemperate remarks; at the end of the day, he was just expressing his view of the Ryan budget.

The same is true of Michael Mann’s critics. They identified the basis for their views: Mr. Mann’s research, detailed criticisms of his statistical techniques, and leaked emails disclosing that he had employed statistical “tricks” to “hide the decline” in projected temperatures and had participated in efforts to blackball scientists skeptical of catastrophic global warming. Their words are, therefore, protected, no less than Mr. Mann’s criticism of competing scientists’ research as “pure scientific fraud.” A reasonable reader understands that these statements are not accusations of literal fraud, but strongly-stated criticism.

So where subjective views are concerned, the answer is yes, you really can say that. Occasional incivility is a small price to pay for freedom from government policing the boundaries of acceptable discourse.

• David B. Rivkin Jr. and Andrew M. Grossman practice appellate and constitutional law with the firm of Baker & Hostetler in Washington, D.C.