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Adrian Vermeule on West Virginia v. EPA; Devin Watkins Responds
Michael Ramsey

In the Washington Post, Adrian Vermeule: There is no conservative legal movement - Originalism, textualism and judicial restraint all got short shrift in this term’s major environmental-regulations decision.  From the introduction: 

On the last day of the Supreme Court’s term, in a case called West Virginia v. Environmental Protection Agency, the Court declared that the Clean Air Act does not clearly authorize the EPA to create a Clean Power Plan — in other words, to set standards for emissions from existing power plants with a view to encouraging “generation shifting” of electricity production toward sources that emit less carbon dioxide. If this does not sound like the stuff of great events, it was made so by the court’s approach to the case. Chief Justice John G. Roberts Jr., writing for the majority, announced expressly, for the first time, that the court would apply a “major questions doctrine.” According to the majority, the doctrine holds that in “extraordinary cases” the court will apply a “different approach” than the ordinary legal principles governing the interpretation of statutes. Instead, it will demand clear congressional authorization for agency action that is, in the judges’ view, “highly consequential,” posing questions of “economic and political significance.”

... [A]s this case makes clear, there is no conservative legal movement, at least if legal conservatism is defined by jurisprudential methods rather than a collection of results. West Virginia v. EPA illustrates that every last methodological tenet professed by the movement will be downplayed, qualified or abandoned when the chance arises to limit the regulatory authority of the federal agencies, especially in environmental matters.

The conservative legal movement distinguishes itself from other approaches by declaring itself united not around “results-oriented jurisprudence” but rather around a set of supposedly neutral methods for interpreting legal texts. Conservative jurisprudence — again, as advertised — has four pillars: originalism, textualism, traditionalism and judicial restraint. Although different conservatives emphasize one or the other approach, all are staples of Federalist Society events and lauded in the opinions of conservative justices.
It is grimly hilarious, then, that the court’s opinion in West Virginia v. EPA follows none of these methods. ...
At the Federalist Society Blog, Devin Watkins responds: Originalism’s Still Around, No Matter What Adrian Vermeule Says.  From the introduction: 

I was taken aback when I read Adrian Vermeule’s recent Washington Post op-ed, which alleges that the U.S. Supreme Court’s West Virginia v. Environmental Protection Agency decision is unprincipled, results-oriented, and bereft of jurisprudential method. Indeed, when Professor Vermeule insists that the decision cannot be reconciled with originalism, he argues that “There is no conservative legal movement”—largely to defend his theory that the opinion’s use of the major questions doctrine and the nondelegation doctrine represent a wholesale abandonment of originalist principles. In particular, Vermeule argues that “the originalist credentials of the nondelegation doctrine are shockingly thin”—alleging that the nondelegation doctrine’s relatively recent emergence makes it incompatible with originalism. Similarly, Vermeule charges that the major questions doctrine (which rests on the nondelegation doctrine) is without grounding in any “venerable maxim or principle of our law; one will search for it in vain in the pages of Blackstone.”

Vermeule’s claims are groundless. An examination of legal history demonstrates that the nondelegation doctrine—and its legal offspring, the major questions doctrine—is deeply rooted in the history of American and English law.

The nondelegation doctrine emerged from English common law before the United States ever existed. What we think of as the English Constitution was a set of unwritten norms that developed over centuries. That Constitution was a set of common understandings that were, in part, developed by a system of governance that made it possible to learn from mistakes: more precisely, those understandings were informed in part by carrying out a terrible misstep of governance, seeing its horrible consequences, and then proclaiming that we must never make such a mistake again.

The incident that triggered the creation of the nondelegation doctrine was the Proclamation by the Crown Act of 1539. ...