Monday, August 07, 2023

Is the President Congress' Babysitter?

A newly-ascendent doctrine the Supreme Court has used to strike down disfavored executive regulations is the so-called "Major Questions Doctrine". The MQD, in essence, says that we should not assume that Congress has legislated on issues of major social or economic importance unless it does so very, very clearly. This means that even where the plain statutory text seems to authorize presidential action, courts can still nullify it if they decide that Congress' language was not "clear" enough given the magnitude of the policy at issue.

For example, in NFIB v. OSHA, the Supreme Court invalidated the Department of Labor's vaccine mandate despite statutory text authorizing OSHA to issue emergency rules when necessary to protect employees against "grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards." COVID-19, of course, is an "agent" which poses "grave danger" to employees, so it would appear based on the plain language that Congress had authorized this course of action. But no, said the Supreme Court -- if Congress wanted to authorize OSHA issuing blanket rules covering essentially all employers across the entire economy, it needed to be even clearer than that.

Many critics have assailed the MQD as the Court abandoning textualism when it conflicts with conservative policy preferences. In response, conservatives have tried to argue that the doctrine can be reconciled with textualism because the MQD comports with how ordinary readers read texts. In the student loan case, Justice Barrett made a popular version of this argument:

Consider a parent who hires a babysitter to watch her young children over the weekend. As she walks out the door, the parent hands the babysitter her credit card and says: "Make sure the kids have fun." Emboldened, the babysitter takes the kids on a road trip to an amusement park, where they spend two days on rollercoasters and one night in a hotel. Was the babysitter's trip consistent with the parent's instruction? Maybe in a literal sense, because the instruction was open-ended. But was the trip consistent with a reasonable understanding of the parent's instruction? Highly doubtful. In the normal course, permission to spend money on fun authorizes a babysitter to take children to the local ice cream parlor or movie theater, not on a multiday excursion to an out-of-town amusement park….

Problem one with this defense is that it turns out Justice Barrett's intuitions may not be accurate. A new article actually empirically tested Justice Barrett's example and found that most respondents did not find the babysitter's actions to be unreasonable. Whoops. (Kudos to Ilya Somin for at least acknowledging that this study is countervailing evidence against his own affinity for the MQD).

But my problem with this analogy is a little different: is it really fair to characterize the President as akin to Congress' babysitter? The Executive and Congress are coequal branches of government. Their relationship is not as one-sidedly hierarchical as the parent who makes a one-off hire of a babysitter. If we adjusted the hypothetical so it was two parents, one leaving on a business trip and who tells the other "make sure the kids have fun this weekend!", I doubt anyone would find the choice of the stay-at-home parent to take the kids to an amusement park to be even remotely problematic.

Now, I'll concede a potential problem with the revised hypothetical: the relationship between two parents doesn't generally involve delegations of authority. Mom and dad both are generally authorized to make choices about the kids on their own initiative. By contrast, nominally under our separation of powers system the executive is only empowered to act upon authorization by Congress.

I'm not sure this objection fully holds, however, and in any event it can be easily traversed. It doesn't necessarily hold because -- as any couple knows -- lack of a formal hierarchy between spouses does not mean that it's impossible for there to be instructions and acrimony where they're not followed. If mom says "make sure the kids take a bath", and dad lets them get away with just running through the sprinkler -- well, woe is about to fall upon dad, and it'll be worse for him still if he comes back with "as a co-equal parent, I am equally authorized to make parenting decisions on my own initiative."

But even if we think the parent-to-parent relationship doesn't quite work, it still seems clear that the relationship between Congress and the President is still more distant from a parent and babysitter. So how about parent and grandparent. Take Justice Barrett's hypothetical, but it's grandma watching the kids for the weekend. Grandma, unlike dad, does only have delegated authority to look after the kids. But nonetheless, I think very few people would think that grandma's amusement park trip would be unreasonable or out-of-bounds. The fact that grandma is herself part of the family, and not some random acne-faced fifteen year old, makes a huge difference in terms of what should be deemed reasonable.

When Congress passes laws for the executive to enforce, it is not "delegating" power to some ad hoc temporary babysitter who may or may not ever be hired again for $20/hour plus tips. It is interacting with an intimate family member with whom it has a long-standing relationship that will continue across a multitude of cases into perpetuity. That sort of relationship, it seems to me, makes the MQD less feasible. That Congress wouldn't be presumed give some random stranger authorization to make "major" alterations to social or economic policy does not mean that Congress wouldn't be presumed to give the President of the United States such alterations -- particularly when we're talking about legislation that is by its nature inherently imbricated in issues of major social and economic concern (workplace safety, environmental protection, educational access, and so on).

College Football is Ruining College Sports

[Graphic: Washington Post]

Another huge wave of conference consolidation just hit, as eight schools just departed the PAC-12. Oregon, USC, Washington, and UCLA are headed to the Big Ten, while Arizona, Arizona State, Colorado, and Utah are moving to the Big 12 (the schools currently remaining in the rump PAC-12 are Stanford, Cal, Washington State, and Oregon State).

These conference realignments and consolidations are entirely being driven by college football. Even men's college basketball -- the other marquee moneymaker -- really doesn't play a role (we saw that when Maryland moved from the ACC to the Big Ten, a clear sacrifice of basketball rivalries for football dollars even though Maryland's outstanding basketball program is far more storied than its pedestrian football team). And all the other sports are complete afterthoughts -- there is no advantage whatsoever to UCLA's baseball team flying all the way across the country to play Rutgers.

The thing is, I don't know of anyone who's defending this on any basis other than the football cash grab.  And given the titanic sums in play, one can even understand that the schools in question feel like they've got no choice but to make the moves. I do feel a twinge -- just a twinge -- of sympathy for Florida State, which is missing out on massive payouts because it's stuck in the comparatively uneconomical ACC.

But the fact is that outside of football these conference realignments are just terrible for college sports. It makes me wonder whether there is a way to spin off the Big Ten and Big 12 as football-only conferences, so that in all other sports universities play in their traditional and more regional home bases. I can't imagine the Big Ten actually cares if they're still Oregon's home for gymnastics, so long as they're getting those big football games. If the NCAA or whomever could step in and basically broker a compromise where these conferences get whatever football teams they want but leave the other sports programs alone, you'd think something could be worked out. 

To be sure, I think even for football these realignments are doing real damage -- but with the money in question I'm dubious there's any way to put up resistance. It might be more feasible to just give up on college football being anything but a soulless cash grab and work to make it so that "what makes sense for football" doesn't end up dragging all the other sports down with it.

Sunday, August 06, 2023

The LLM Blues

LLMs depress me.

It's not so much the existential threat to my profession and livelihood (though that does lurk in the background, at least over the midterm).*

Rather, right now the depression stems from the fact that LLMs are almost inevitably going to diminish the importance of teaching writing skills in my law school classes. And helping people become better writers is one of my great joys as a professor. It's something I truly love doing. Yet the take-home essay -- essential to providing the sort of close reading and feedback I use to develop people as writers -- feels like one of those assignments that LLMs are going to make largely obsolete, or at least shift dramatically in terms of structure. I'm already pivoting in my syllabus -- this year is going to be a relatively experimental in terms of how to accommodate the existence of LLM -- and while I still expect that I'll do some amount of writing coaching, it definitely feels like the ground is shifting, and I'm already mourning what I anticipate losing.

* On the more existential threats, there does seem to be a bit of literary irony here for persons in the highly-educated literati contingent. I don't think I've personally engaged in this, but on a class level it certainly seems that the intelligentsia often blithely responded to the risks of tech disruption with "learn to code!" bromides, back when we thought that the machines were going to displace largely blue-collar workers. It turns out that while it's hard for a machine to develop the fine motor coordination necessary to serve as your plumber, one thing the robots are really great at is being smarter than the smart people. Whoops. "Learn to woodwork, radiologists!"