In nuking nuclear waste plans, Judge James Ho saves room for a "major questions" aside

The Supreme Court conservatives' favorite new doctrine for striking down government action finds a summer home in the Fifth Circuit.

It’s late August, but that doesn’t mean the “major questions” doctrine can rest.

Or so Judge James Ho would have us believe.

In a decision out of the U.S. Court of Appeals for the Fifth Circuit on Aug. 25, an all-Republican-appointee three-judge panel tossed out a license issued by the Nuclear Regulatory Commission under the Atomic Energy Act for storage of “spent nuclear fuel” in an “away-from-reactor storage facility” in Texas.

I admittedly don’t know all of the ins and outs of the longstanding debate over nuclear waste storage. It’s complicated, and I get that. I saw Yucca Mountain mentioned and knew this would go afield of my knowledge base. But, I read through it, in large part to see how the “major questions” doctrine is continuing to morph and be overused in this moment.

So, let’s dig in.

Ho, one of Trump’s most aggressively reactionary appellate judges, wrote the opinion for the court. In it, he summarized the main part of the ruling as such:

The Atomic Energy Act does not confer on the Commission the broad authority it claims to issue licenses for private parties to store spent nuclear fuel away-from-the-reactor. And the Nuclear Waste Policy Act establishes a comprehensive statutory scheme for dealing with nuclear waste generated from commercial nuclear power generation, thereby foreclosing the Commission’s claim of authority.

OK. In the 22 pages that follow, Ho detailed the history of the nation’s not-great record on addressing nuclear waste storage. (It’s a hot potato, if you don’t mind my awful metaphor.) He did so in a way that, by Ho’s telling, is partially a story of how the judges of the U.S. Courts of Appeals for the D.C. Circuit and 10th Circuit got the commission’s authority wrong on this issue when they considered the matter nearly two decades ago. Ho then also explained how, to him, the Nuclear Waste Policy Act makes that all the more clear. He does not address, however, the fact that Congress has never acted to “correct” these appeals courts’ decisions that he insists are incorrect in the 19 years since they were issued.

Nonetheless, Ho — joined by Judge Edith Jones, a Reagan appointee, and Cory Wilson, another Trump appointee — vacated the license that the commission had issued to hold “spent nuclear fuel” in an “away-from-reactor storage facility” in Texas.

As mentioned, though, the substance of this particular case, while important, wasn’t really why I was reading it. I wanted to read that to be able to properly place and contextualize Ho’s alternative reasoning in the last two paragraphs of the decision.

It was “major questions” time.

“[E]ven if the statutes were ambiguous, the Commission’s interpretation wouldn’t be entitled to deference,” Ho wrote. Then, in two paragraphs, Ho raised, discussed, and applied the “major questions” doctrine to this case and concluded that the commission’s longstanding policy is not authorized under the doctrine because there was no “clear delegation” — emphasis in original — to the Commission of that authority from Congress.

From Ho:

So, we go from Ho’s focus for the first 25 pages to one paragraph in which he described what is increasingly described most accurately as being as much of a power grab by the Supreme Court — and, apparently, lower courts — as it is any protection of power to Congress.

Then, Ho responded to the test for deciding when the “major questions” doctrine applies, such as it is, by describing the question in this case — and, with it, this license — in a way that almost literally answers itself.

I wanted to highlight this not only to show the “major questions” doctrine being used in an important lower-court case, but also to place it in the bigger picture of our legal landscape before we get into the fall and the new Supreme Court term.

This decision and the way Ho made it go to show just how ready (at least some) judges are to pop up and — with next to no reasoning — apply the newly invigorated “major questions” doctrine to resolve basically any case in which the government is doing anything important that was not explicitly described in legislation. This is so even, or perhaps especially, if the matter at issue was not specifically being considered by Congress when it passed the law — no matter how expansively the law was written and no matter whether it was intentionally worded in such a way to allow for agency flexibility to address new and important issues that would arise in the future.

This is, in many ways, the opposite of the textualism that legal conservatives pushed for decades. This is a purposivism for the right — where the only real purpose is to hamstring governing.

I’ve been writing about my concern on this front for more than a year now, including here at Law Dork and at MSNBC.

What I wrote here in July 2022 is particularly well-illustrated by Ho’s decision, and I want to reiterate it in closing:

Both history-based and “major questions” tests tilt the scales of justice for the right. If you don’t want modern developments to influence how we view our Constitution, say decisions have to be based on what people thought in the late 1700s or the mid-1860s. If you don’t want government regulation, say big decisions have to be explicitly, specifically authorized — how explicit? how specific? we’ll see! — by federal laws.

This path prevents constitutional provisions from being given forward-looking effect and it stymies forward-looking statutes. The Constitution is stuck in the past, and new laws must successfully be passed by a new Congress to address any changed circumstance whenever the Supreme Court’s majority decides that a changed circumstance raises a “major question.”

This is what the Supreme Court’s 6-3 conservative majority wants, with its twin guiding interpretative principles — constitutional interpretation tied to “history and tradition” and statutory interpretation tied to the restrictive “major questions” doctrine — leaving government, and Americans looking for government to act, in the lurch.

This isn’t, in other words, just a problem of nuclear waste. It’s a problem of whether the new court’s principles will allow us to govern.