In this July 24, 2017, file photo, President Donald Trump speaks in the Blue Room of the White House in Washington. (AP Photo/Alex Brandon, File)

This week’s decision by U.S. District Court Judge Kathryn Kimball Mizelle striking down the Biden administration’s mask requirement for public transportation has attracted no shortage of online scorn for its highly improbable statutory interpretation. Even the thoughtful libertarian legal scholar Ilya Somin, who describes himself as deeply opposed to mask mandates in principle, concedes that Mizelle is “probably wrong about the bottom line” in reading the Public Health Services Act. Critics of the judge’s strained reasoning have not hesitated to point out that Mizelle, 33 years old when appointed by President Donald Trump, drew a “not qualified” rating from a majority of the American Bar Association Standing Committee on the Federal Judiciary because of her near-total lack of trial experience. 

It turns out, however, that highly dubious—even absurd—lower court opinions are not the exclusive province of those rated “not qualified.” On March 16, a panel of three Fifth Circuit judges issued a unanimous opinion blocking a lower court decision against the Biden administration, which was written by a “well qualified” Trump appointee. That decision, Louisiana v. Biden, would bar environmental rule makers from using as part of their regulatory cost-benefit analyses estimates developed by the president’s interagency working group (IWG) regarding the social costs of greenhouse gas emissions. The decision, if followed, could greatly curtail cost-effective regulatory strategies to combat climate change.

Here’s the background. On his first day in office, President Joe Biden issued an executive order reconstituting the Barack Obama–era IWG, which Trump had disbanded. Biden charged the group with producing “estimates of the monetized damages associated with incremental increases in greenhouse gas emissions.” Under the order, such estimates cover factors such as “human health” and “property damage from increased flood risk.” At the behest of 10 states, the U.S. District Court for the Western District of Louisiana ordered the EPA, the National Highway Traffic Safety Administration, and the Departments of Energy, Transportation, Agriculture, and the Interior to disregard the working group’s estimates. The agencies were ordered to comply with cost-benefit analysis guidelines issued by the George W. Bush administration, which yielded lower estimates for the cost of greenhouse gas emissions. Ambitious regulatory strategies for curbing emissions would appear less attractive using the Bush guidelines because the costs of mitigation strategies would remain the same, but the value of damages prevented with a reduction in emissions would be lower.

The district court opinion not only reached the wrong outcome but also was riddled with elementary administrative law errors and cockamamie notions of how the executive branch operates. These problems were recently cataloged in a thoughtful essay by Jonathan Adler, the politically conservative director of the Coleman P. Burke Center for Environmental Law at the Case Western Reserve University School of Law. 

A district court opinion this outlandish raises an important question about Trump judicial appointees who were graded “well qualified” by the American Bar Association. During Trump’s term, critics worried that at least some of his nominees were qualified less by achievements than by ideology. But the majority of Trump judges appeared impressive by the usual professional measures. Beth Williams, then the assistant attorney general at the Department of Justice’s Office of Legal Policy, pointed out in 2020 that Trump’s “judicial appointments earned the American Bar Association’s top rating”—“well qualified”—“at nearly the highest rate in five decades.” As tallied by Ballotpedia, out of 264 Trump judicial nominees, the ABA rated 187 “well qualified,” 67 as “qualified,” and 10 as “not qualified.” Yet the question remains for some “well qualified” Trump judges whether their loyalty to the Republican Party or unadorned antipathy toward a Democratic administration is so great as to overcome their professional grounding and any semblance of fidelity to the law.

The ABA deemed Judge James Cain Jr., the Trump-appointed author of Louisiana v. Biden, to be “well qualified.” Following college, three years as a congressional aide, and then law school, Cain clerked for a state appellate court, practiced law for 12 years at a small firm in Louisiana, and cofounded his own small firm, Loftin, Cain & LeBlanc, where he practiced for 12 years as a partner focused on civil litigation. One infers that more than two decades of legal work earned him a positive reputation.

Yet Cain’s opinion in Louisiana v. Biden was one-sided and tainted by fundamental error. The most obvious problem is that the IWG’s issuance of cost estimates for regulatory cost-benefit analysis posed no immediate or imminent injury to the states that were suing. The Supreme Court deems the presence of a concrete injury to be a constitutional prerequisite to bringing a dispute within a federal court’s jurisdiction. In lawyer parlance, injury is a nonwaivable element of plaintiff “standing.” No injury, no suit. This is why the Fifth Circuit stayed Cain’s judgment. 

Cain seems oblivious to the role of cost-benefit analysis in federal executive branch rulemaking. Since the Reagan administration, presidents have required agencies to clear proposed regulations through the Office of Management and Budget—specifically, its Office of Information and Regulatory Affairs—which performs a cost-benefit analysis of the agency’s regulatory strategy. There is no explicit legislative authority—that is, no enabling statute—for this exercise. The Office of Legal Counsel at the Justice Department has reasoned that a president need not seek Congress’s permission to ask agency heads to report the anticipated costs and benefits associated with the rules and regulations they promulgate. Article II, Section 2 of the Constitution itself grants the president authority to request information from the heads of government agencies regarding how they implement their statutory duties.

The role of regulatory cost-benefit analysis as practiced makes several of Cain’s conclusions incomprehensible. For example, he accepts the assertion of energy-producing states that the IWG will directly increase their “regulatory burdens.” By themselves, however, IWG cost estimates have no direct impact on any state at all. Any regulations that bind the states (or anyone else) must be implemented not through the IWG but via individual agency rulemakings authorized by statute. To the extent that a statute either permits or requires an agency to take economic costs and benefits into account, the agency must develop a fact-finding record that tries to explain its analysis in a non-arbitrary way. If the agency relies on IWG estimates as part of that analysis, any party burdened by the rule can challenge the estimates for defects in fact-finding or reasoning. But until an agency issues a rule using the estimates, there is no burden imposed on regulatory parties.

Cain also botches the so-called major questions doctrine as to whether Biden had the authority to task the IWG with developing its cost estimates. The major questions doctrine insists that agency initiatives that produce some “transformative expansion” of their regulatory power must find their legal basis in a specific statutory authority. The problem with invoking the major questions doctrine, in this case, is that the IWG cost estimates do not expand any regulatory authority. The authority any agency possesses to issue regulations must be based on a statute specific to the agency that Congress has enacted. The statute is the agency’s license to operate. A report to the White House on what some future regulation is likely to cost or on the anticipated scope of regulatory benefits does not change the terms of that license. There is no question of statutory interpretation that poses a question regarding agency statutory authority, major or otherwise.

Cain credits the states’ argument that the cost estimates were promulgated unlawfully because the IWG did not observe the notice-and-comment requirements of the federal Administrative Procedure Act. However, there is no mandatory requirement to supply advance notice and a public comment opportunity before issuing general statements of policy. And that, legally speaking, is what the IWG’s document is. 

This bill of particulars does not exhaust the list of what’s wrong with Cain’s opinion. To quote Adler’s more detailed analysis: “Judge Cain’s opinion was far from reasonable. It was wrong many times over and made a mess of relevant law.” That Cain insists that courts may enjoin administrative action that violates the Constitution’s “separation of powers clause”—there is no such clause—is itself a signal that something is seriously amiss.

Unfortunately, Cain is not alone among “well qualified” Trump judges reaching inexplicable results. Richard Myers II, the chief judge of the U.S. District Court for the Eastern District of North Carolina, recently interpreted an 1872 federal law as protecting the right of insurrectionists past and future to run for federal office. Myers, appointed by Trump in 2019, can boast an impressive academic and professional background. He took his undergraduate degree with highest honors at the University of North Carolina at Wilmington, from which he also earned a master’s degree. He earned his JD with high honors from UNC–Chapel Hill, where he was articles editor of the law review. After clerking on the D.C. Circuit, and spending five years in practice, first at a major law firm and then as an assistant U.S. attorney, Myers joined the law faculty of his alma mater, where—over the course of a 15-year teaching career—he was awarded a named professorship and became director of the school’s trial advocacy program.

Yet Myers produced more than an ordinary head-scratcher with his March decision in Cawthorn v. Circosta. Under North Carolina law, any voter in a candidate’s district may challenge the candidate’s eligibility for office, including their qualifications under Section 3 of the Fourteenth Amendment. That section provides: “No person shall be a … Representative in Congress, … who, having previously taken an oath, as a member of Congress, … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.” Madison Cawthorn, an extreme right-wing House member allegedly involved in planning the events of January 6 who has called the defendant rioters “political hostages,” sought an injunction to prevent any enforcement of Section 3 against him.

The basis of Cawthorn’s claim is a one-sentence federal statute called the Amnesty Act of 1872. Between 1868 and 1872, Congress—as Section 3 expressly permits—had already voted to restore the eligibility of specific individual Confederates to run for federal office. The obvious purpose of the 1872 act was to do the same on a group basis for all federal officials who had fought for the Confederacy but whose antebellum federal office holding had been at a low level. (The law did not protect anyone who served in Congress between 1859 and 1863 or former U.S. military officers, judges, heads of administrative agencies, or ambassadors.)

The entirety of Cawthorn’s argument—and the entirety of Myers’s analysis—is that the 1872 act applies to every oath-taking federal insurrectionist serving in Congress, whether in the Civil War or at any future time, except for those Congresses explicitly excluded from its amnesty. Myers cites a familiar adage that statutory words are customarily given their ordinary meaning, and the verbiage of the 1872 act does not contain a time limit. The Trump-appointed judge neglects to mention the equally familiar canon that a statutory interpretation that calls a statute’s constitutionality into serious question is to be avoided if a plausible reading is available that would pose no such problem. Seemingly unnoticed by Myers, his reading of the 1872 act would render it unconstitutional. For Congress to immunize future insurrectionists from the operation of the Fourteenth Amendment would have been to amend the Constitution through a mere statute. In this matter, not only is an alternative reading of the act available to avoid the problem; the alternative reading is the only one that is plausible.

Of course, two outlandish opinions do not by themselves establish a pattern. Whether or not these are isolated instances would require more systematic investigation. Happily, it is not difficult to find opinions by Trump judges as professionally competent and fair-minded as one would hope from any jurist. But experts, even experts in law, are not immune to error. And the apparent susceptibility of experienced lawyers like Cain and Myers to right-wing sophistry ought to raise concern. After all, whatever his future political fortunes, Donald Trump’s enduring impact on American governance is assured by the sheer volume of federal judges he appointed. He secured confirmation for 54 judges to the U.S. Court of Appeals in his single term—only one fewer than Obama appointed in two terms. Trump’s appointment of 174 district court judges means that one of every four federal trial judges is a Trump appointee. And because the average age of Trump judges was under 50 when appointed, lifetime tenure ensures that their influence will be felt for decades.

It was sometimes said that Trump’s judicial picks were of a sort that one would expect any Republican president to choose. Yet a study by the political scientists Adam Bonica and Maya Sen in the Journal of Economic Perspectives suggests only a partial resemblance. All Republican presidents since Gerald Ford appointed judges more politically conservative than the appointees of Democratic Presidents Carter, Clinton, and Obama. Yet Trump’s judges were more conservative, on average, than even those appointed by Ford, Reagan, and both Presidents Bush. Trump’s judges were more politically active in their pre-judicial careers. This may help explain their willingness to entertain legal arguments that would not do well on any law school final exam.

That any judge rules erroneously in a particular case does not necessarily prove bad faith or ideological blindness. Regarding the challenge to Biden’s IWG, some may take heart that, although plaintiff states asked the entire Fifth Circuit to reconsider the March 16 stay en banc, not a single member of this overwhelmingly conservative court voted to do so. However, because a judicial opinion did not accompany that vote, we cannot know whether the judges were persuaded by how the three-judge panel composed of one George W. Bush–appointed judge and two Obama appointees explained their stay. Some may be hoping that the Biden agenda will be effectively blocked when the case hits the right-wing Supreme Court.

As for Judges Cain and Myers, I do not doubt that they believe their opinions to be well reasoned. But when “well qualified” judges reach conclusions that are absurd on their face, it is fair to wonder if the problem is more significant than that the judge is just having a bad day. At some point, political commitments may run rampant and produce predetermined outcomes without regard to law. That would be an unqualified fiasco.

Peter M. Shane

Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus at Ohio State University and a Distinguished Scholar in Residence at the New York University School of Law. His forthcoming book is Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency. Follow Peter on Twitter at @petermshane