The End of ‘Pen and Phone’

Happy Friday! From protecting the president to protecting your selfies: James Murray—director of the U.S. Secret Service—will retire from the agency at the end of July and join Snapchat’s parent company as its chief security officer.

Quick Hits: Today’s Top Stories

• Former Japanese Prime Minister Shinzo Abe was shot and killed this morning while campaigning in Nara City for a candidate ahead of Sunday’s parliamentary elections. Abe—who led Japan from 2006 to 2007 and again from 2012 to 2020—was quickly transported to Nara Medical University Hospital, but medical officials said he was unresponsive and showing no vital signs. A gun was retrieved by law enforcement officials at the scene, and a 41-year-old man was arrested in connection with the assassination.

• Following another wave of scandals, Boris Johnson formally announced on Thursday he will resign as leader of the Conservative Party and step down as British prime minister—as soon as a replacement is selected. Tory leaders are hoping to narrow the search for Johnson’s replacement to two candidates by the time Parliament’s summer recess begins on July 21, teeing up a new leader to be selected by September.

• Just one day after announcing the first COVID-19 vaccine mandate in mainland China, Beijing officials reversed course on Thursday, withdrawing the policy—which would’ve required residents to provide proof of vaccination to enter most public places—after fierce pushback from the public. Instead, residents will have to provide a negative COVID-19 test from within the past three days and submit to a temperature check. 

• WNBA superstar Brittney Griner—detained in Russia since February—pleaded guilty to drug charges in a Russian court on Thursday, telling the judge the vape cartridges containing hashish oil were in her luggage out of “carelessness” and she did not intend to break the law. President Joe Biden spoke with Griner’s wife Cherelle earlier this week, telling her his administration was pursuing “every avenue” to bring Brittney—and other U.S. nationals “wrongfully detained” in Russia—home. The charge against Griner carries a maximum sentence of 10 years in prison, and her next court hearing is scheduled for July 14.

• President Joe Biden wrote a letter to Congress on Wednesday informing members he will rescind Afghanistan’s designation as a major non-NATO ally, reversing a decision made in 2012 now that the Taliban has returned to power. Non-NATO allies aren’t bound by joint defense pacts, but the status allowed Afghanistan to receive military training and assistance from the United States over the past decade.

• Days after ordering Juul Labs to stop selling and distributing its e-cigarettes and vape cartridges in the United States due to insufficient toxicological data, the Food and Drug Administration announced it was pausing its decision so it could conduct an “additional review.” The decision—which comes after a federal appeals court temporarily blocked the FDA from enforcing the order—will allow Juul products to remain on the market, and amounts to a significant backpedal by the regulatory agency.

• With crude oil prices falling as recession fears grow, the pain at the pump is beginning to ease. After surpassing $5.00 for the first time last month, the national average price of a gallon of regular gas was $4.75 on Thursday, according to AAA data. 

• The latest COVID-19 wave continues to wane, with the average number of daily confirmed COVID-19 cases in the United States declining 13 percent over the past two weeks. The average number of daily deaths attributed to COVID-19 is falling more precipitously, down 30 percent over the same time period. According to Centers for Disease Control estimates, the Omicron BA.5 subvariant—the most effective one yet at evading immunity from previous infections and vaccines—became the predominant strain in the United States last week, supplanting BA.2.12.1.

• Term-limited Arizona Gov. Doug Ducey on Thursday endorsed Karrin Taylor Robson—a member of the Arizona Board of Regents—in the state’s Republican gubernatorial primary, labeling her a “proven conservative” who would be “ready to lead on day one.” The move pits him against former President Donald Trump, who is backing former local TV news anchor and election denier Kari Lake in the August 2 primary. 

• The Labor Department reported Thursday that initial jobless claims—a proxy for layoffs—increased by 4,000 week-over-week to 235,000 last week, remaining slightly above historic lows.

Unless you’re in the hospitality industry—or a professional baseball player—the summer months tend to be a slower time at work, with warmer weather and time off of school leading to shorter workdays, more vacations, and getting less done. That, unfortunately, hasn’t been the case for morning newsletter editors this year.

Over the past several weeks, we’ve been occupied with Republican primaries and January 6th Committee hearings, sky-high gas prices and Federal Reserve machinations, three mass shootings and the war in Ukraine. There was the reckoning at the Southern Baptist Convention and the planned assassination against Brett Kavanaugh, a toppled prime minister and a new COVID-19 vaccine plan. Oh, and half a century of abortion policy was thrown to the curb.

All that’s to say, please forgive us for devoting today’s newsletter to something that happened eight days ago. There’s been a lot going on—and we promise it’s important.

The End of ‘Pen and Phone’

Dobbs v. Jackson has understandably received the bulk of the attention, but the most consequential decision of the current Supreme Court term may have been handed down on its final day. On the surface, West Virginia v. Environmental Protection Agency dealt primarily with the EPA’s authority to limit carbon emissions from power plants. But the Court’s 6-3 majority opinion, authored by Chief Justice John Roberts, will have far-reaching implications for the operations of the federal government.

The ruling was nearly a decade in the making, concerning the Obama administration’s Clean Power Plan (CPP) and the Trump administration’s replacement, the Affordable Clean Energy Rule (ACE). The first regulation—which was adopted in 2015—sought to further Democrats’ environmental goals by imposing national carbon emissions standards that power plants across the country would need to meet by 2030, primarily by shifting from coal-generated electricity to natural gas or renewable sources. The rule never went into effect—the Supreme Court issued a stay in February 2016 at the behest of several Republican states—and it was repealed by the Trump administration in 2019 and replaced with a far more lenient rule that focused on making coal-burning power plants more efficient. The D.C. Circuit Court of Appeals struck down that plan, too, on January 19, 2021—teeing up the incoming Biden administration to craft a replacement.

In oral arguments back in February, Solicitor General Elizabeth Prelogar made the case on behalf of the Biden administration that, because neither the CPP nor the ACE were in effect, the Republican-led states and coal companies weren’t really affected by the D.C. Circuit Court decision—and therefore didn’t have standing for their suit. “They can’t say that they have any concrete injury or harm from not having the regulation of ACE, from not having to start working on state plans that are just going to become overtaken by events when EPA completes [its new] rulemaking,” Prelogar said. “Instead, what they’re focused on is the effects of what’s going to happen in the future.”

She may have had a point about the lawsuit’s underlying rationale—to tie the Biden administration’s hands as it was crafting the new EPA rule—but that doesn’t mean the suit was meritless. “There is little question that the petitioner States are injured,” Roberts wrote. “[And] the Government ‘nowhere suggests that if this litigation is resolved in its favor it will not’ reimpose emissions limits predicated on generation shifting.”

In siding with the GOP-led states and coal companies last week, the Supreme Court ruled that the CPP unlawfully pushed power plants to shift their electricity production from higher-emitting to lower-emitting sources, as Section 111(d) of the Clean Air Act—on which the Obama administration leaned in justifying the rule—did not explicitly grant the EPA that authority. 

“Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’” Roberts wrote. “But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme. A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”

“This is a major questions case,” he continued, referring to the Supreme Court doctrine that dictates executive branch agencies must have explicit authorization from Congress in order to issue regulations of major economic or political importance. “EPA claimed to discover an unheralded power representing a transformative expansion of its regulatory authority in the vague language of a long-extant, but rarely used, statute designed as a gap filler. That discovery allowed it to adopt a regulatory program that Congress had conspicuously declined to enact itself.” 

The Court came to a similar conclusion earlier this year, when it blocked the Biden administration’s attempt to use the Occupational Safety and Health Act to institute a sweeping COVID-19 vaccine mandate for large employers. “[OSHA] empowers the Secretary to set workplace safety standards, not broad public health measures,” the majority held in January.

Importantly, this time around, the Court didn’t rule that Congress couldn’t grant the EPA authority to require shifts to cleaner energy sources—only that it didn’t grant that authority in the Nixon-era legislation the Obama administration cited. And paradoxically, that could actually benefit climate activists’ efforts in the long run, as congressional legislation is much more durable than easily repealed executive actions and rules.

“They arguably have more ammunition now to put pressure on legislators,” said Jonathan Adler, an environmental and constitutional law professor at Case Western Reserve University School of Law. “From an environmental standpoint, if this decision forces environmental groups to think more seriously about legislation—forces them to think more seriously about things that are harder to tie up in court and harder to delay within the administrative process—that might actually push us towards better policy.”

The problem with that line of thinking, of course, is that Congress isn’t exactly operating at peak performance right now from an environmentalist’s point of view. With his Build Back Better plan stalled and Republicans set to retake at least the House in this year’s midterms, President Joe Biden didn’t welcome last week’s ruling as an opportunity to get something done legislatively—he labeled it a “devastating decision” that “aims to take our country backwards” and damages “our nation’s ability to keep our air clean and combat climate change.”

Justice Elena Kagan highlighted similar concerns in her dissent. “If the current rate of emissions continues, children born this year could live to see parts of the Eastern seaboard swallowed by the ocean,” she wrote. “Rising waters, scorching heat, and other severe weather conditions could force ‘mass migration events[,] political crises, civil unrest,’ and ‘even state failure.’” But she devoted most of her effort to contesting her colleagues’ view of the Clean Air Act.

“The majority’s decision rests on one claim alone: that generation shifting is just too new and too big a deal for Congress to have authorized it in Section 111’s general terms,” she wrote. “But that is wrong. A key reason Congress makes broad delegations like Section 111 is so an agency can respond, appropriately and commensurately, to new and big problems. Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues—even significant ones—as and when they arise.”

But Kagan was only able to convince her fellow Democratic-appointed justices, with the conservative majority loath to grant such broad power to the executive branch bureaucracy. “Legislation would risk becoming nothing more than the will of the current President, or, worse yet, the will of unelected officials barely responsive to him,” Justice Neil Gorsuch wrote in his concurrence. “In a world like that, agencies could churn out new laws more or less at whim. Intrusions on liberty would not be difficult and rare, but easy and profuse. Stability would be lost, with vast numbers of laws changing with every new presidential administration. Rather than embody a wide social consensus and input from minority voices, laws would more often bear the support only of the party currently in power.”

To many conservatives, that doesn’t sound like some far-off dystopia, it’s how the federal government has been operating for years. And they see last week’s decision as an important step in reversing that trend. Patrick Morrisey—the Republican Attorney General of West Virginia who led the lawsuit against the EPA—indicated additional lawsuits were coming when he told reporters the major questions doctrine “could be a very positive tool in the ongoing fight against federal overreach.”

“If you start from the premise that agencies only have that power that Congress gave them—which should not be a controversial premise—then the majority of the Court’s view is, I think correctly, that the agency has to be able to show that Congress gave it the power that it wants to exercise,” Adler said. “And if it’s a fairly dramatic power, or a redirected power, or a power without much precedent, there are reasons to doubt that Congress gave that power, absent some sort of evidence or indication.”

“[That view] admittedly makes it harder to deal with certain problems than I might like given that Congress is not as functional as I would like it to be,” he continued. “But that doesn’t give the courts or the agencies the authority to make it up.”

Worth Your Time

• In an excerpt from his forthcoming book, Thank You for Your Servitude, Mark Leibovich profiles some fellows he sees as “the most pathetic men” in America. “Early in 2019, I asked [Sen. Lindsey] Graham a version of the question that so many of his judgy old Washington friends had been asking him. How could he swing from being one of Trump’s most merciless critics in 2016 to such a sycophant thereafter?” Leibovich remembers. “‘Well, okay, from my point of view, if you know anything about me, it’d be odd not to do this,’ he told me. ‘This,’ Graham specified, ‘is to try to be relevant.’ Relevance: It casts one hell of a spell. ‘I could get Trump on the phone faster than any staff person who worked for him could get him on the phone,’ [Rep. Kevin] McCarthy bragged to me. There was always a breathless, racing quality to both men’s voices when they talked about the thrill ride of being one of Trump’s ‘guys.’ What would you do to stay relevant? That’s always been a definitional question for D.C.’s prime movers, especially the super-thirsty likes of McCarthy and Graham. If they’d never stooped this low before, maybe it’s just because no one ever asked them to.”

• The Constitution Center commissioned three teams—conservative, libertarian, and progressive—to identify potential reforms that could address current threats to American democracy and strengthen its institutional guardrails. The conservative team—some folks named Sarah, David, and Jonah—made some pretty good points. “The Founders counted on Congress to possess a core institutional identity that could or would ultimately trump the members’ factional interests. It turns out that members are more than happy to punt their responsibilities to a president and then turn their focus to achieving personal fame, mainly as ferocious partisans who support or oppose the person in the White House,” they write. “By subordinating their branch of government so thoroughly to the presidency, they’re frustrating the Founders’ virtuous intent of placing the most powerful branch of government closest to the people. The result, as outlined below, is an enormous amount of public frustration and alienation. Very few Americans feel as if their vote truly counts, and every four years our upside-down system entrenches itself. Presidents rule, Congress serves the White House, and courts ratify the legislature’s abdication of responsibility of power. It’s time to turn the system right-side up.”

Presented Without Comment

Also Presented Without Comment

Toeing the Company Line

• No seriously, you should probably get off of TikTok. In this week’s edition of The Current (🔒), Klon revisits the security concerns surrounding the Chinese social media app. “Simply hoping things somehow get better isn’t a strategy, it’s an abdication of responsibility,” he warns. “It is now an unavoidable fact that TikTok is a threat to the American people and to our national security. The only question is, what are we going to do about it?”

• On Thursday’s episode of Advisory Opinions, David and Sarah run through SCOTUSBlog’s end-of-term Stat Pack before being joined by Hiram Sasser, co-counsel for Coach Joseph Kennedy in Kennedy v. Bremerton School District. How did the facts of the case become so muddled? Tune in for a lively debate about how the case could have—or should have—been handled.

• “Even for a determinedly unserious people, Boris Johnson was a very, very silly person to make prime minister,” Chris writes in this week’s Stirewaltisms (🔒). “How he ended up in 10 Downing Street and persisted there for so long despite massive ineptitude and scandal is very much like how America ended up with a similarly silly president who nearly ended up winning re-election despite his chaotic, corrupt tenure.”

• On today’s episode of The Dispatch Podcast, Sarah, Steve, Jonah, and David discuss this week’s tragedy in Highland Park, and whether red-flag laws actually work in practice. Plus: Boris Johnson’s inevitable resignation, and updates on both Ukraine and the 2022 midterms.

• On the site today, Charlotte writes about the plight of Afghan refugees in neighboring Pakistan, Oliver Rhodes examines the Tories’ forthcoming decision to pick Boris Johnson’s successor, and Price St. Clair breaks down the likely fate in a post-Dobbs world of the abortion drug mifepristone.

Let Us Know

Do you tend to judge Supreme Court decisions by their outcomes and implications, or by the process and reasoning by which the justices arrived at their decision? Can you think of any cases where you disagree with the outcome but agree with the judicial philosophy that led to it? What about vice versa?