Jurisdiction Stripping: Fact & Fiction Flowing Through the Mountain Valley Pipeline Case

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Emily Manning:  Hello, everyone, and welcome to this Federalist Society virtual event. My name is Emily Manning, and I’m an Associate Director of Practice Groups with The Federalist Society. Today, we’re excited to host a discussion on Jurisdiction Stripping: Fact & Fiction Flowing Through the Mountain Valley Pipeline case.

 

We’re joined today by Professor Jonathan Adler, Professor Daniel Farber, Rachel Jankowski, Professor Alan Trammell, and our moderator today is Judge Robert T. Numbers, II, United States Magistrate Judge for the Eastern District of North Carolina. If you’d like to learn more about today’s speakers, their full bios can be viewed on our website, fedsoc.org.

 

After our speakers give their opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter into the Q&A function at the bottom of your Zoom window, and we will do our best to answer as many as we can.

 

Finally, I’ll note that, as always, all expressions of opinion today are those of our guest speakers, not The Federalist Society. With that, thank you for joining us today. And, Judge Numbers, the floor is yours.

 

Hon. Robert T. Numbers, II:  Great. Thank you, Emily, for the introduction. It’s a pleasure to be with everyone today for a discussion on the Mountain Valley Pipeline cases and Congress’s ability to limit the jurisdiction of federal courts.

 

As a brief background, the Mountain Valley Pipeline cases arose out of the construction of a 300-mile long pipeline that was designed to deliver natural gas throughout the southeastern United States. The pipeline’s construction had been delayed by numerous lawsuits over permitting and other environmental-related issues.

 

In the Fiscal Responsibility Act of 2023, Congress included certain provisions designed to expedite the pipeline’s completion. Section 324 of that law ratified and approved all federal authorizations for the project, including several agency actions that were actively being litigated at the Fourth Circuit. It also contained two provisions regarding judicial review of pipeline-related matters.

 

First, it provided that no court would have jurisdiction to review any action by a federal agency that granted an authorization necessary for the construction or initial operation of the pipeline, and it provided the D.C. Circuit would have exclusive jurisdiction over any challenges to the constitutionality of Section 324. Yet after the Act was signed into law, the Fourth Circuit issued two orders, staying additional construction and approvals from the United States Forest Service and the United States Fish and Wildlife Service.

 

The pipeline filed an emergency application with the Supreme Court seeking to vacate those orders, and the Court granted that relief. The Fourth Circuit then granted a motion by the pipeline and various federal agencies to dismiss the pending challenges. But in doing so, the judges on the panel raised concerns about the impact of Congress’s actions on the rule of law and separation of powers. Then Chief Judge Roger Gregory wondered in his concurring opinion, “If Section 324 is a harbinger of erosion, not just to the environment, but to the republic.”

 

Today, we are joined by a distinguished group of experts to discuss this case and the implications of jurisdiction stripping on the rule of law and separation of powers.

 

With us today is Professor Jonathan H. Adler, inaugural Johan Verheij Memorial Professor of Law and the founding Director of the Coleman P. Burke Center for Environmental Law at the Case Western Reserve University School of Law. At that school, he teaches courses in environmental, administrative, and constitutional law.

 

Also joining us today is Professor Dan Farber. He is the Sho Sato Professor of Law at the University of California at Berkeley. He is also the Faculty Director of the Center for Law, Energy, & the Environment. His areas of expertise include administrative law, constitutional law, as well as environmental, natural resources, and energy law.

 

Our third speaker today is Rachel Jankowski. She is the Assistant General Counsel for the Office of General Counsel of the United States House of Representatives. Ms. Jankowski has served in the Office of General Counsel since May of 2023. Before joining that office, she worked in private practice in Washington, D.C., where she represented clients in mass tort and complex commercial trial and appellate litigation. She served as a law clerk for Judge Wendy Williams Berger of the U.S. District Court for the Middle District of Florida and for Judge James J. Tancredi of the U.S. Bankruptcy Court for the District of Connecticut.

 

And our fourth speaker today is Professor Alan Trammell. He is an Associate Professor of Law at Washington and Lee University. He teaches and writes primarily in the fields of civil procedure, federal courts, and conflict of laws. He is the co-author, along with Professor Dan Epps, of an article entitled The False Promise of Jurisdiction Stripping. The article argues that “whatever the scope of Congress’s Article III power to limit the jurisdiction of the Supreme Court and other federal courts, jurisdiction stripping is unlikely to succeed as a practical strategy.”

 

So we’ll begin today from hearing from our experts individually, and then we’ll get some discussion going between them and then leave some time at the end for conversation -- or for questions and answers from the audience. We’re going to begin with Ms. Jankowski. The floor is yours.

Rachel Jankowski:  Thank you, Judge Numbers, and thank you to The Federalist Society for having me. So I think it’s best to start off by putting this into context exactly what was going on here.

 

As Judge Numbers said, the Mountain Valley Pipeline is a 303-mile natural gas pipeline that stretches throughout West Virginia and Virginia. Given the number of waterways and national forest lands that the pipeline would cross, it required a complex permitting process.

 

Litigation involving the pipeline began in 2017 when FERC authorized the pipeline’s construction and operation. A number of environmental groups filed multiple lawsuits to challenge the agency's approvals of the permits necessary for the pipeline’s construction. The pipeline had thus been under attack by litigation for years. The project was severely delayed, and the costs of the project were exacerbated because the Fourth Circuit upheld several challenges to the project’s permits, citing environmental violations. At the time of the decisions in the statute that we’re discussing, there were only a few miles left to be constructed to finish the project.

 

As Judge Numbers said, the problems -- the Fiscal Responsibility Act was passed in the wake of a number of problems that were preventing the completion of the pipeline, and the problems became so prevalent that they even caught the attention of President Biden, West Virginia Senator Joe Manchin, and Congress. So, while the litigation was ongoing in the Fourth Circuit, Congress and the Fiscal Responsibility Act determined that the timely completion and construction and operation of the pipeline was required in the national interest. Accordingly, Congress made several changes to federal law to expedite the pipeline’s construction.

 

First, it ratified and approved a wide number of prior federal agency actions necessary for the construction and initial operation of the pipeline at full capacity. Second, it directed the appropriate federal officials and agencies to maintain those agency actions. Third, it required the secretary of the army to issue all necessary permits for the construction and operation of the pipeline within 21 days. Fourth, it superseded any other provision of law inconsistent with any authorization for the pipeline. Fifth, it removed from any court the jurisdiction to review agency actions necessary for the construction and initial operation at full capacity of the pipeline. And lastly, it directed that the D.C. Circuit would have exclusive jurisdiction over all constitutional challenges to the validity of the Fiscal Responsibility Act provisions involving the pipeline. The bill passed both houses in a divided Congress, and it was signed by President Biden.

 

After the passage of this legislation, the pipeline company moved to dismiss the petitions in the Fourth Circuit. The petitions were challenging the agency approvals under a variety of congressional acts. Despite Congress’s clear action and intent in the Fiscal Responsibility Act, the Fourth Circuit issued, without any explanation, three stays pending review of agency actions necessary for the pipeline’s construction, delaying its completion for an indefinite period of time, which was exactly counter to Congress’s express intent that the pipeline be completed in a timely manner.

 

An emergency application to vacate the stays was filed with the U.S. Supreme Court. A bipartisan group of lawmakers, including Senator Manchin, filed an amicus brief. The House of Representatives also filed an amicus brief, arguing that Congress lawfully exercised its authority to make energy and environmental policy when it changed the law that applies to the pipeline.

 

The brief argued that Congress modified the law by ratifying and approving the agency actions necessary for the pipeline’s construction and operation. And it stated that Congress’s approval applied notwithstanding any other provision of law and that these provisions superseded any other provision of law that was inconsistent with agency actions approving the pipeline.

 

The House argued that the Fiscal Responsibility Act did not invade the judiciary’s Article III power because Congress did not direct courts on how to apply existing law to specific facts. Instead, it made new law. For over 200 years, the Supreme Court has held that Congress may amend the law and make the change applicable to pending cases, even if it is outcome-determinative in a case. And I’m sure the panelists and I are going to talk about some of those cases specifically. The House here argued that the Court should apply this precedent.

 

Put simply, the Fourth Circuit’s orders were an affront to the separation of powers obstructing Congress’s exercise of its valid constitutional power to pursue an important policy decision—the timely completion of the pipeline. Not only that, but important policy decisions impacting our country should be made by Congress, not federal agencies. It’s thus no surprise the Supreme Court granted the emergency applications and vacated the stays. Thanks.

 

Hon. Robert T. Numbers, II:  Next, we’ll hear from Professor Farber.

 

Prof. Daniel Farber:  Thank you. I think it’s probably true that I disagree with the current majority of the House on the desirability of natural gas pipelines. However, I do agree with a lot of what was said in the House’s brief.

 

So I want to begin with a little bit of sympathy for the Fourth Circuit. I think writing the Appalachian Voices opinion must have been a painful task given the onslaught of hostile comments against the panel and the writer on the debt ceiling, which I think was maybe a particular slap in the face by switching the venue for the constitutional claim. Obviously, a message there was that Congress didn’t trust the Fourth Circuit to consider it. Yet the Court did do its duty and dismissed the case, as I think the law clearly required. In the process, however, it made a doctrinal move that I think could potentially eliminate a lot of doctrinal hair-splitting in the future.

 

The key precedent was the Patchak case. The facts were that the Interior had classified some land as Indian trust property. And while Mr. Patchak’s challenge to that reclassification was pending, a Supreme Court decision in another case made it clear that the reclassification was in fact invalid. A congressman passed a new law. Section 2(a) of the new law ratified the land’s Indian trust status, and pretty much everyone agreed that that was constitutional.

 

I think if you were writing on a clean slate, you might wonder whether there was some requirement that Congress pass laws of general applicability rather than applying to a specific parcel. But history has long since made it clear that Congress can pass very specific laws, except where there are specific constitutional bars to doing so.

 

Section 2(b), eliminates jurisdiction here, lawsuits relating to the land. Actually, the language is very broad and would seem to eliminate any lawsuits of any kind relating to the land. But everyone seemed to agree that it applied to lawsuits involving the reclassification as trust land. And because the statute of limitations had run, there was only ever going to be this one lawsuit.

 

The Court was badly split, but interestingly, not on an ideological basis, which we tend to expect in divided cases. The plurality opinion upheld the law as valid jurisdiction stripping. Concurring justices said it was valid because it retracted a waiver of sovereign immunity, and the dissents argued that Congress was essentially deciding and ruling an impending case and that that’s unconstitutional. So I think this is an issue only a lawyer could love.

 

In Patchak, it was clear that the lawsuit was doomed to defeat. Section 2(a) eliminated the only possible legal basis for the suit. The only real issue was what to call the defeat: a dismissal for lack of jurisdiction or a dismissal for failure to state a claim. Since the plaintiff was going to lose anyway and the only question was the ground for the decision, why did the Court have to get entangled in the murky issue of jurisdiction stripping? Why couldn’t it just decide that the plaintiff had no claim on the merits? And the answer to that is simple. The courts have to decide jurisdictional issues first before they can get to merits issues.

 

There used to be some disagreement about whether that was an inflexible rule, but the Supreme Court seems to have decided that it is—so jurisdictional issues first, even though the plaintiff was doomed to lose on the merits. We first have to dive into the murky depths of federal jurisdiction law to decide if the jurisdictional part of the statute was constitutional.

 

So I think the Fourth Circuit made a clever move, which was to convert the merits issue into a jurisdictional one so it could be decided first. How was this done? It was done by pointing out that due to the new statute, the plaintiff had no possible ground for relief, and therefore, the lawsuit had to be dismissed for mootness.

 

In effect, the Court gave Congress a recipe for jurisdiction stripping of pending lawsuits and statutory cases. Just knock out any possible substantive basis for the lawsuit and make the case moot. I like that approach partly because it allows us to get out of theological disputes about the line between Congress deciding a lawsuit versus making substantive changes in the law. And partly, I think it also highlights that jurisdiction stripping is really one of only a variety of tools that Congress can use to pretty much the same effect.

 

Many of those tools were actually used in the Mountain Valley case. The jurisdiction stripping was kind of icing on the cake. In addition, there’s the possibility of giving administrators a broad waiver power or of remedy stripping, which would simply ensure that the plaintiff could really gain nothing from the litigation and in particular could have eliminated the potential for issuing stays or injunctions of any kind. So that’s it for me, and I’m looking forward to the rest of the discussion.

 

Hon. Robert T. Numbers, II:  Thank you. Professor Trammell.

 

Prof. Alan M. Trammell:  Thank you very much to The Federalist Society, to Judge Numbers, and to my co-panelists for this discussion. I want to talk at a fairly high level of abstraction first and then get into the Mountain Valley Pipeline.

 

So when we’re thinking about jurisdiction stripping, we’re often concerned about the potential for separation of powers violations, the idea that Congress could usurp the proper role of federal court, that it could wrest a decision away from the courts and essentially try to muck about with this carefully calibrated system of checks and balances.

 

So to opponents of jurisdiction stripping writ large, it is a grave threat to the separation of powers. It’s essentially a nuclear option. There’s recently been enthusiasm, particularly on the left, for jurisdiction stripping as a way of recalibrating exactly who has a voice and a role in constitutional interpretation.

 

Now, at the risk of painting with a very, very broad brush, my coauthor, Dan Epps, and I argue that this is really much ado about nothing, and there are a couple of issues that we really carefully try to separate. One is jurisdiction stripping as to constitutional issues, and then another is with respect to statutory issues. So when it comes to constitutional issues, we can talk about that. But overwhelmingly, we are not going to see that Congress can essentially keep courts out of a matter—at least not beyond the short term.

 

When it comes to statutory issues, it’s even easier because there’s almost nothing that Congress is going to be able to do through jurisdiction stripping that it can’t accomplish through changing the underlying substantive law. So let me talk about a couple of doctrinal building blocks that, as Professor Farber indicated, are pretty well established at this point—a couple of things that Congress is not allowed to do in terms of an incursion on the judicial power.

 

Congress is not allowed to reopen final judgments, and it’s not allowed to tell courts how to rule. That’s a venerable principle that dates back to the Klein case in the immediate aftermath of the Civil War. On the other hand, Congress always has the ability to change the underlying substantive law. We think about this as a normal part of the give-and-take part of the constitutional dialogue between Congress and the courts. If courts interpret a statute in a way that Congress doesn’t like, Congress can just change the statute. Again, that’s a normal part of constitutional dialogue. We don’t tend to think of that as somehow an incursion on the judicial power.

 

The key here, to my mind, is the critical distinction between Congress essentially trying to look backward, trying to revisit a final judgment, versus a forward-looking approach in which Congress changes the underlying substantive law. Now, at a very, very high level, we can think about those as operating in very different spheres. But as Professor Farber alluded to, those ideas can overlap, particularly when Congress is changing the underlying substantive law, and it’s doing so at a very granular level of specificity, when it is legislating as to one particular native American tribe in the Patchak case or in Mountain Valley Pipeline—when it is legislating as to this very specific pipeline.

 

And so figuring out the difference between changing the underlying substantive law as it applies to this particular case on a prospective basis versus telling a court how to rule can sometimes resemble angels dancing on the head of a pen. By the way, I am sorry. It’s a little bit noisy where I am. I am in the business center of a hotel, so I apologize for that.

 

In any event, I would essentially say that there is no problem with what Congress did from a constitutional perspective. In the Mountain Valley Pipeline, Professor Farber said the jurisdiction strip is essentially icing on the cake. Justice Breyer, in his concurrence and Patchak, described this as “gilding the lily.” When Congress changes the underlying substantive law, even when it’s legislating at, as I say, a very specific level, it’s essentially doing what it is empowered to do under Article I of the Constitution. The jurisdiction strip more or less says, “And we mean it.”

 

The only problem would come about that could possibly arise is if there are constitutional challenges and Congress is trying forever to keep courts at bay. But that’s not what Congress did with respect to the Mountain Valley Pipeline. Admittedly, it relocated those constitutional challenges to the D.C. Circuit from the Fourth Circuit. But all Article III courts, in essence, are created equal. And most importantly, from a constitutional perspective, Congress seemed to leave in place the mechanisms that would allow the Supreme Court to review on a grant of certiorari.

 

In other words, I don’t see a constitutional problem here. We can talk about the extent to which this is advisable, the extent to which the Fourth Circuit was using fairly breathless language and talking about the separation of powers. But when we’re fundamentally dealing with statutory interpretation issues, there really isn’t a problem.

 

Hon. Robert T. Numbers, II:  Thank you. And now, we’ll hear from Professor Adler.

 

Prof. Jonathan H. Adler:  Well, thank you. It’s a pleasure to be here and to discuss this issue with my co-panelists. What I wanted to do briefly in my remarks is say a little bit about the actions in this particular controversy but place them in the context of broader discussions that we’re having right now about the proper judicial role in judicial review of agency action, as well as the role of -- that a court should play when they’re entering relief—particularly injunctive relief—as against agencies or other actors because I think that one should see part of what’s going on here as part of the broader conversation we’re having about, say, injunctions entered by district courts in Texas, the way the narrative is usually discussed, and that this episode actually helps us see that these issues actually relate to broader, more systemic questions about the role of the courts; and that they don’t have a uniform ideological valence; and that, again, while we tend to focus about on a handful of courts in Texas, we can look at the actions of the Fourth Circuit here, the actions of, say, a district court in Oregon with regard to some climate litigation, and see that there’s some broader questions about the proper role of the judiciary in these questions; and to think about both the Supreme Court’s intervention in this case, as well as Congress’s resort not merely to amending substantive law but also expressly engaging in jurisdiction stripping as an important part of that dialogue among the branches.

 

And in my view, I’ll say why I think Congress is taking that step as actually a useful intervention, whether or not one thinks this was the right place to do it—that is to say whether or not whatever one’s view of this particular pipeline or the role of pipeline construction more generally, Congress recognizing that it should assert itself when it comes to the question of what sorts of judicial review should happen and what sorts of interventions judges should be able to make is very positive because, ultimately, as I’m going to briefly explain, this all really does come back to Congress.

 

So, as has already been discussed, Congress has broad authority over the federal courts and their jurisdiction. We can have a very interesting debate about the ability of Congress to remove federal question jurisdiction from the federal courts when it comes to purely constitutional questions. But in a case like this, that’s not really an issue, right?

 

Congress has elected to enact a range of statutes that create broad opportunities for judicial review of agency action. In the energy context, you could say Congress has previously authorized what might be characterized as “weapons of mass obstruction” when it comes to the development of energy projects. And over time, various groups with views about the desirability of particular projects or with views about the location of particular projects have learned to use those opportunities. And we have a broader debate about, for example, permitting reform in the context of energy projects that is all about whether or not we have too many opportunities for judicial review, whether or not they are duplicative of one another, and whether or not they allow for the sorts of policies we want.

 

But the key point, I think, for our discussion is that this is all something that Congress decided was valuable. Whether we’re talking about the Administrative Procedure Act, whether we’re talking about the Natural Gas Act, Congress has decided that requiring agencies to go through certain sorts of procedures and processes will, on the whole, lead to better, more transparent, and more responsive policy choices, lead to more responsible actions by the agencies. And Congress has concluded that judicial review provides a useful check on risks of agencies either shirking their responsibilities or deviating from their congressional instructions.

 

And I will say, as a general matter, I’m very sympathetic to that. I think as a general matter—insofar as broad discretion is given to agencies—judicial review is useful to make sure that agencies are engaging in reasoned decision-making and thinking about the things we have asked agencies to think about. But the key point is that that was a discretionary choice by Congress. That was something that Congress had no obligation to do.

 

In the context of pipelines, there might be questions about, for example, whether or not Congress could prevent federal courts from hearing -- taking these claims if a pipeline or a transmission line went across someone’s private land. But we’re not talking about anything like that. We’re talking about whether the Fish and Wildlife Service engaged in the right sort of inquiry in issuing a biological opinion about the effect of a pipeline on a particular species that Congress has authorized the protection of.

 

That sort of question doesn’t implicate any broader constitutional values. And it would be quite striking to suggest that the creation of these opportunities for judicial review somehow created a vested and irrevocable right to judicial review in perpetuity that Congress could not then subsequently take away—and as my co-panelists have already suggested, that Congress could actually take away in a variety of different ways.

 

And I think for me, at least, when one reads the Fourth Circuit opinion, one of the concerns I have is there are intimations in some of what the judges wrote there that suggest there’s something problematic about Congress changing its mind about the procedural policy question, changing its mind on whether or not the degree of litigation, potentially duplicative litigation over things like energy projects, is desirable. Again, we can agree or disagree on whether that makes sense with regard to this pipeline or natural gas pipelines generally.

 

The point is that that’s Congress’s choice and that if Congress wants to allow agencies to have broad discretion about where to cite pipelines and whether or not to approve them without judicial review, Congress could do that. Congress could even, to quote Judge Gregory’s opinion or paraphrase Judge Gregory’s opinion, “Congress could even call for the construction of natural gas pipeline by legislative fiat.”

 

It is frankly striking to me that a federal judge would think that there would be something problematic about Congress instead of delegating this responsibility to an agency and deciding to allow for judicial review of that decision, that Congress could not, in the first instance, make the legislative choice about where pipelines will or will not go and how they will be constructed. I mean, that, in some respects, is an inversion of the constitutional order.

 

In fact, if one goes to the Founding period, there was even a debate about whether or not Congress could delegate this sort of authority, although, in that context, it was about post roads, not about pipelines. And we know that Congress ultimately concluded that it could delegate some of that such authority. But the idea that Congress could do this directly is not something that should concern us. It’s, in fact, something that we know Congress can do.

 

Not only should we be concerned about judges suggesting that there would be something problematic about the legislature legislating more directly in these policy areas. We should be concerned about when that is backed up by interventions like the stays that the Fourth Circuit entered here. And I’ve written that it shouldn’t surprise us that the Supreme Court responded to those stays and got rid of them because the Supreme Court was faced with a lower court asserting jurisdiction over things it did not have the jurisdiction over.

 

Once Congress took jurisdiction away, yes. As a technical matter, the Fourth Circuit could still confirm that it lacked jurisdiction. But the idea that the Court had jurisdiction to issue a stay other than for purely administrative purposes, I think, is quite a stretch. And we should recognize this -- and I’ll close with this point.

 

We should see this episode as of a piece of what we’ve seen with lots of lower courts entering orders and, in particular, entering stays and injunctions that are not warranted by the underlying legal questions. In a lot of contexts, it’s really beyond that which is necessary to provide relief for the parties. For here, it’s beyond that which the Court has the jurisdiction to provide.

 

And recognize that a lot of the action on what we refer to as the “shadow docket” or perhaps the “emergency docket” or the “motion docket”—whatever title you like—is actually the Supreme Court trying to navigate how to respond to the increasing efforts by litigants to induce lower courts to provide relief beyond what they should be providing and the Supreme Court’s concern about maintaining a degree of uniformity and respect for the rule of law within the judicial system as a whole because just as we would be concerned about congressional overreach, were it stripping courts of jurisdiction that can’t be removed, the rule of law is also threatened by courts asserting authority and providing relief beyond that which is constitutionally or statutorily warranted. And I will stop there.

 

Hon. Robert T. Numbers, II:  Thank you to all of our panelists for your opening statements. I just want to remind our audience, you can submit questions using the Q&A function at the bottom of the page. We’ll take those questions as they come in. I’ll give our panelists an opportunity to respond to anything they heard or any issues they feel are worthy of additional discussion.

 

Prof. Daniel Farber:  Let me say a few words about Jonathan’s view. Like him, I am concerned about the inclination of some lower court judges to go off on little expeditions of their own, refusing to adhere to what I think is pretty clear law or, in some cases, to the decisions of higher courts. I don’t think that this kind of piecemeal response is very desirable, that is, it seems to me it has some of the same flaws as congressional earmarks, right?

 

I mean, why was the Mountain Valley Pipeline different? Well, ultimately, because Biden needed Manchin’s vote for the Inflation Reduction Act, and they agreed that the pipeline would go forward, and Biden felt compelled to keep the deal.

 

And there’s nothing unethical about what either one of them did. But on the other hand, there’s no particular reason to think that this is the one energy project in America that is getting screwed up by the lower courts. And so I think it would be much better for Congress to respond to some of these problems with more general legislation.

 

I realize, as the world works, the best approach may not be a feasible approach. But I would prefer to have something that, for example, tried to deal with the delay in these lawsuits or tried to more systematically address overuse of remedies like stays. And I think there’s the same risk at the Supreme Court.

 

It’s true that I think what the court is doing is partly, at least, a response to the problem that Jonathan and I both see. But it’s somewhat haphazard, and it’s really hard to know the extent to which they’re intervening in some cases and not others for sort of principled reasons or just because some lower court decisions annoy them more for reasons that might not be unconnected with ideology. So again, I would prefer more transparent, more general solutions.

 

In general, I also agree with Jonathan that Congress can change the ground rules for judicial review, make it decide that arbitrary and capricious review has become too intrusive and reformulate that, or they could exclude some actions from judicial review entirely, which I think they could do for NEPA, for example. I don’t know that I would advise it, but I think they could clearly do that.

 

I’m not sure quite whether I agreed that they could eliminate judicial review entirely, and I guess it’s something that I’m concerned about are enforcement actions. I’m not sure whether someone’s charged with the regulation -- it seems to me at least a little problematic to say that they can’t challenge whether the regulation comports with the statute that Congress passed. Maybe Congress can do that, but at least I’d want to think about that a bit more.

 

And then, although I don’t think I would buy this argument, I’m also a little bit worried about delegation. If Congress says, “Here is your finely tuned standard agency that even complies with Justice Gorsuch’s view of delegation. But, by the way, no court can ever review whether or how much you follow that standard.” I don’t know. You wonder, “Is that really a limitation on agency power?” Again, I think I’m probably persuadable on that issue, but I would like to think about it more.

 

Rachel Jankowski:  One thing I’ll add, just in addition to what was said already, is that Congress here used its constitutional power when it passed the original statutes that the environmental groups were relying on when they’re challenging this pipeline.

 

So just as Congress has the power to impose those statutory requirements, it also necessarily possesses that complementary power to modify or eliminate them. And that power is not subject to any type of time constraint, meaning that Congress can change it at any time, even if it involves litigation. And Congress can change how -- can change the law how it sees fit.

 

So it can repeal a part of the statute or all of a statute, but like it did here, it can also just exempt a project from generally applicable laws. And it’s done that before in the Consejo case and the Dole case. So when Congress passes those generally applicable laws, it can change them, and it can exempt those projects as it desires.

 

Prof. Daniel Farber:  Yeah, I don’t disagree with that.

 

Prof. Alan M. Trammell:  I’ll piggyback very briefly on that to note that across a whole array of issues, it’s the level of specificity that I think causes a lot of concern in many people’s minds. And so, in this respect, I think that jurisdiction stripping is something of a red herring, particularly when we’re talking about statutory issues, when we’re talking about confirming administrative law decisions.

 

Something that Justice Breyer said in the Plaut case—not a jurisdiction-stripping case—was that, usually, we think of Congress as legislating at a high level of abstraction, high level of generality. And that’s what helps us know that these are legislative rules that are going to apply prospectively, as opposed to a court, which historically is going to decide an individual case. But that’s just a rule of thumb because since the beginning of the republic, we have had private bills, for instance, when we didn’t have a court of claims.

 

So the level of specificity, while I think it is a nice rule of thumb, does not actually demarcate the separation of powers. It does not demarcate when Congress is overstepping its balance. Do I think that Congress should legislate at a high level of abstraction? Usually, absolutely, I do. But that’s not necessarily the constitutional question. And in theory, we have the political process to hold Joe Manchin’s feet to the fire if we think that he’s not doing a good job of legislating at the right level of generality.

 

Rachel Jankowski:  Yeah. One thing to note, the Supreme Court has even upheld decisions where legislation identifies a case by name. The Bank Markazi case is a great example of that. There was also a case involving just a single memorial in the National Mall, and the D.C. Circuit upheld that statute, and the Supreme Court has cited that decision approvingly. So just to Professor Trammell’s point, it doesn’t matter even if it’s specific to one project or case.

 

Prof. Alan M. Trammell:  And something that I point out in my federal courts class, the even crazier potential is if Congress creates a new cause of action. So if it uses the right language of saying, “We’re changing the underlying substantive law. We’re not touching a final judgment in an earlier case. Moreover, we are creating this brand new cause of action. And so, in essence, it allows a plaintiff a second bite at the apple.”

 

All of that is technically constitutional. Now, courts are probably going to view that last step as something that might be beyond the pale, and they’re going to scrutinize it very, very carefully. But in theory, at least, there are these tools at Congress’s disposal. They simply need to use the right language.

 

Prof. Jonathan H. Adler:  Yeah. And I would jump in. I think the concern that people have is that there could be instances in which Congress authorizes agencies to do things that result in the loss of liberty or property from an individual and then a denial of judicial review or constraining judicial review would raise due process implications. And then we could have a discussion about the extent to which Congress could put individual citizens in the position where they can only raise the constitutional claims defensively, as against an effort by an agency to enforce an action, as opposed to engaging in prospective litigation.

 

And I think the DeVillier case from earlier this week certainly suggests that the ability of individuals to raise those constitutional claims defensively when an agency seeks to have its judgment or decision enforced probably could not be taken away. I mean, I think that’s an implication one could read, and every justice on the Court agrees with that.

 

What I think is interesting here is that we see this idea, I think, implicit in at least in some of the opinions in the Fourth Circuit that opportunities to influence agency conduct are of the same constitutional moment as the underlying interests in liberty and property that the Due Process Clause protects. And there’s almost a hint of that move we saw way back when in Goldberg v. Kelly or in the judicial recognition of the new property as being something that rises to the level of something that’s constitutional protection.

 

And so part of, for me, why I think both the intervention of Congress and the Supreme Court in this narrow case is useful is because, in many respects, it’s pushing back against that, that we are not going to transform these opportunities to intervene in the administrative process, which are widespread—which, as I’ve already noted, I generally am supportive of—into something of constitutional or quasi-constitutional status that must necessarily be able to come before the courts and that, were we to do so, that would actually constrain the legislature’s ability to make broader policy choices quite a bit.

 

Lastly, I should say my own view is I would love to see both Congress and the Supreme Court to be more aggressive or to speak more broadly in this regard. That is to say I would love Congress to enact something that talks about when injunctive relief against agencies is and is not appropriate.

 

I would love the Supreme Court to recognize that Solicitor General Elizabeth Prelogar is absolutely correct that the Administrative Procedure Act does not authorize nationwide injunctions. That is not what “set aside” means in the text of the Administrative Procedure Act. But I’m not sure we can expect or hope for that in the near future and thus this sort of micro inner branch dialogue, reaffirming the underlying structural point, is what we might have to be content with.

 

Hon. Robert T. Numbers, II:  Well, obviously, we’ve talked a lot about this case involving administrative action, and the panelists seem generally of largely the same mind. There was no real issue here. Is this a tool that Congress can employ in other contexts that aren’t so regulatorily focused? I mean, can Congress designate that the next major piece of legislation passed can only be reviewed by one circuit court or another for its constitutionality? Or does the administrative nature of the case provide some sort of special rule -- special installation from that sort of action?

 

Prof. Alan M. Trammell:  I’ll start by saying that from a constitutional perspective, I don’t think that it is problematic to shift the initial review from the Fourth Circuit to the D.C. Circuit. And certainly, that’s something that Congress could do in a number of other contexts, not just the administrative law context. We see this pretty famously when in World War II, there was the price administrator to try to tamp down inflation, and there was the specially created Article III court to review decisions about whether you had price controls that were confiscatory and unconstitutional.

 

So you have this jurisdiction—I don’t wanna call it a jurisdiction stripping regime, but a jurisdiction reallocation—where Congress is very consciously trying to channel cases into certain courts but very importantly preserving the opportunity for constitutional review. And when Congress seems to take away all opportunities for constitutional review, the Supreme Court usually finds some sort of mechanism to intervene.

 

Either it identifies another readily available mechanism that can be used in order to review that exact same question, or sometimes, it just ignores jurisdiction stripping language. This was probably most conspicuous in the Boumediene case dealing with the review of habeas corpus petitions by people detained at Guantanamo Bay. There was pretty clear jurisdiction-stripping language, even with respect to constitutional questions. Justice Kennedy, for the majority, notes that and then literally in the next sentence goes on to analyze the constitutional question.

 

So regardless of how the Court does it, it’s always going to have this opportunity to review the constitutional issues. And, as a result, I just don’t think that this is a really great policy tool. And by this, I mean jurisdiction stripping. It’s not going to be a successful mechanism of wresting control away from courts on constitutional issues. And again, to use Justice Breyer’s language, it just gilds the lily when we’re talking about jurisdiction stripping in the statutory context, whether that’s in the administrative law arena or more broadly. Sorry, I didn’t mean that as a mic drop moment.

 

Hon. Robert T. Numbers, II:  We have a question that touches, I think, some on what Professor Trammell was talking about. What checks do the courts or other branches have on Congress’s use of this power? If Congress goes too far, is there a remedy short of the ballot box to address the use of this power by Congress?

 

Prof. Daniel Farber:  I guess I’ll jump in. I think in constitutional cases, I think it’s -- there’s some degree of dispute at least about whether they completely foreclose all judicial review of constitutional issues that affect at least life, liberty, or property, and endless pages and law reviews have been devoted to that.

 

I think, as a practical matter, the Supreme Court has proved pretty adept in either avoiding those or I think either by finding other remedies or ignoring them but also by employing a very strong presumption against restrictions on judicial review, so -- and therefore, interpreting statutes narrowly and finding ways to hear cases anyway.

 

In non-constitutional cases. I don’t -- well, I guess -- I mean, in the typical kind of case like this one where it’s private citizens who are stripped of their right to judicial review, I agree with, I think, everybody else on the panel that Congress can do that, again, subject to Due Process Clause maybe in certain kinds of settings.

 

I suppose Congress could also do something like say that -- do something that’s unconstitutional on separation of powers grounds and then say that’s not judicially reviewable. But then I think the recourse is for the president to ignore it -- and on the grounds that it’s unconstitutional. So I think there are some checks, but Congress does have a lot of authority in these areas. And, ultimately, yeah. We do have the ballot box.

 

Prof. Jonathan H. Adler:  One thing I would just add there is we’re so used to thinking about all these questions as ones that are eventually litigated that we forget that just because there might be a legal or constitutional question doesn’t mean it’s necessarily resolvable in federal court.

 

And we get occasional reminders of this in the mifepristone case, Alliance for Hippocratic Medicine v. FDA. There was a bunch of discussion. Several justices asked questions about, “Well, does anybody have standing to sue the FDA?” And as the solicitor general noted, the answer is maybe. But the more important answer is that even if the answer were no, that would not tell us anything about the Article III question.

 

And similarly, the mere fact that Congress might structure jurisdictional provisions in ways that make it difficult to raise certain sorts of claims doesn’t by itself tell us whether or not that’s permissible. That is to say, there’s a non-zero number of even constitutional questions that are not resolvable in Article III courts.

 

Now, I happen to think, when it comes to governmental actions that deprive individuals of life, liberty, or property, the guarantee of due process, in some contexts, probably does guarantee a minimum amount of judicial review. But where it happens, and perhaps more importantly, the timing of when it happens is still open to a fair amount of manipulation by Congress. And if Congress were to dramatically seek to withdraw the degree of judicial review of a wide range of agency actions from where we are today, that would certainly be a perfectly reasonable basis for political pushback.

 

But we don’t want to be in this situation where we assume that the constriction of judicial review or even the removal of judicial review is necessarily a constitutional problem because while that might be kind of an underlying assumption of a lot of our discourse, it’s actually constitutionally not necessarily so.

 

Prof. Daniel Farber:  Yeah. This gives me a rare opportunity to rely on a quotation from Justice Scalia, who said in the Lujan case that in talking about the possibility that no one would have standing, does this mean that the decisions made in Congress might die in the hallways of power in the executive branch? And he said, the answer is yes, and I think that’s right. And at that point, it’s up to Congress to figure out what to do.

 

I’m not sure. I mean, the Supreme Court itself seems to be quite jealous of intrusions into its own authority to decide all these issues. So I don’t think it’s entirely just a matter of aberrant lower-court judges. I think it’s probably, as I think Jonathan’s indicating, something broader in our legal culture, but I agree that it doesn’t really have a constitutional basis. There must be something we all disagree about.

 

Hon. Robert T. Numbers, II:  One other question—well, we have a couple of questions. But one that came through that may be able to touch on the few minutes we have remaining. There’s a question of whether this was obviously all internal to the United States, if there was an international pipeline, if there was some sort of foreign interest here, would that at all impact the analysis of what was going on here?

 

Rachel Jankowski:  I don’t think so. I think Congress would have even more power. I mean, it’s an international pipeline at that point. So constitutionally speaking, no, I don’t think so.

 

Prof. Jonathan H. Adler:  Yeah, I agree with that. I mean, there might -- under current doctrine, there might be -- it might alter the extent to which Congress could delegate certain types of unreviewable discretion to an agency. I mean, there are some cases there about when it’s a treaty and when it’s an executive agreement and what can be done unilaterally and so on and so forth. But in terms of judicial review, I don’t think it would have much effect.

 

Prof. Daniel Farber:  Yeah, I agree. If anything, it would strengthen the argument. Now, of course, let’s say it was with Canada that Canada might seek relief in some international tribunal. Whatever happens there is just not a matter of U.S. law, and the domestic legal effect of that ruling might be a matter of U.S. law. But if the International Court of Justice wanted to say that it was illegal to deny the permit for the pipeline, they follow their own rules about who can raise what issues and where.

 

Prof. Alan M. Trammell:  Judge, may I weigh in on one of the other questions there?

 

Hon. Robert T. Numbers, II:  Sure.

 

Prof. Alan M. Trammell:  So I think that some of the most adventurous potential uses of jurisdiction stripping would involve jurisdiction stripping of a constitutional nature where the political branches are wildly at odds with current Supreme Court doctrine.

 

So you can imagine Congress trying to take away jurisdiction from the Supreme Court over abortion cases, or even if it’s in the statutory interpretation context, if Congress passes some massive new government program and it says, “Courts can’t review that,” is that a way of insulating the priorities of the political branches from intrusion by a court? That might be very out of step with Congress and the president.

 

And something that Dan and I argued is that, at some point, with almost all of these schemes, you need courts. So imagine that Congress was trying to protect reproductive freedom and it were to say, “Well, this current Supreme Court that decided Dobbs just can’t intervene anymore.” What happens? Well, you might have the state of Mississippi that arrests doctors or women who seek abortion care, and then if you don’t have a court that can step in, then what are you going to do?

 

So, too, if you’re thinking about a major government program, if you have recalcitrants anywhere along the lines, you need a court to intervene. And so an attempt at jurisdiction stripping is ultimately going to be ineffective precisely because you need that enforcement mechanism. And without that, you’re really at a dead end.

 

Hon. Robert T. Numbers, II:  It sounds like there may be circumstances in which jurisdiction stripping could be a double-edged sword. It keeps the courts out of a dispute, but it also keeps the court out of a dispute if someone’s not going along with preferred preferences of the -- what was intended by the law that was enacted.

 

Prof. Jonathan H. Adler:  That’s definitely true. And again, as we’ve already talked about, the one area where we would -- where serious questions would be raised would be if Congress enacted a statute that attempted to deprive those subject to any, say, an agency action of their ability to assert constitutional defenses against enforcement of that action against them.

 

And I think under current law, it is very doubtful that any justice would be sympathetic to an attempt of that sort. And since agency actions generally don’t enforce themselves, that means that Congress relies upon the ability of agencies to enforce actions in court, and that necessarily means that certain constitutional defenses against those actions will be heard at that moment when enforcement occurs.

 

Hon. Robert T. Numbers, II:  Well, we are just about out of time for today. I want to express my thanks to our panelists for participating today. We had a very good discussion about a very interesting topic. And Emily, I’ll turn it back over to you.

 

Emily Manning:  On behalf of The Federalist Society, thank you all for joining us for this great discussion today. Thank you also to our audience for joining us. We greatly appreciate your participation. Check out our website, fedsoc.org, or follow us on all major social media platforms at FedSoc to stay up to date with announcements and upcoming webinars. Thank you once more for tuning in, and we are adjourned.

 

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