None of the Republican presidential candidates have bothered to translate their websites into Spanish — except Ron DeSantis.
That Latino voters will play a pivotal role in the 2024 presidential election is no secret. These traditionally Democratic voters have been behaving more like contestable swing voters over the last two election cycles — less loyal to Democrats and more persuadable in down-ballot elections. If those contests have taught Republicans anything, it’s that their party and candidates have a prime opportunity this cycle to grow their support, if they start early and act smart.
Democrats still over-performed in competitive races during the 2022 midterms and continue to win the majority of Latino voters. But final results from last year’s contests have since confirmed that, since 2016, Republicans have made gains and held a higher share of Latino voters nationally than in the pre-Trump years.
Those GOP gains have been made even though Republicans don’t have the best reputation with these voters and haven’t made the smartest investments in outreach and turnout. And Republicans have a solid chance to win over even more Latinos next year, according to post-midterm polls and analyses of 2020 and 2022.
Those gains won’t materialize automatically. They will require hard work starting now — but it’s unclear whether the Republican presidential primary contenders realize that or have begun that labor.
Their work includes rehabilitating the brand of Republican politics and policy: potentially playing down hardline immigration politics, playing up messaging on economic opportunity, moderating on abortion, and turning the cultural fights over gender and sexuality into issues of parental rights. Practically, that means hiring staff that understands the Latino communities candidates are trying to win over, and developing plans for spending on Spanish-language ads.
It might seem early to begin to discuss this kind of general election strategy, given the campaigns’ attention on qualifying for primary debate stages, raising the funds to even make it to the first primary day, and winning the nomination, but experts in Latino politics have long argued that substantive changes in how Latinos vote hinge on early and regular outreach and investment, that long precedes any actual voting. The Republican primary electorate is overwhelmingly white, especially in the two earliest-voting states of New Hampshire and Iowa, though Latinos make up a bigger share of voters in Nevada, California, and Texas.
At the very least, primary candidates should have Spanish-language websites.
Have these candidates started this work? It doesn’t seem like most of them have.
The real opportunity Republicans have to grow their national Latino support
Though there’s still more than a year until the 2024 presidential election, Latino political experts, strategists, and organizers have long held that it is never too early to reach out to, engage, and build persuasion and turnout operations in communities of Latino voters. These cohorts of voters have long been relegated to the category of the infrequent, or “low-propensity” voter that requires more investment in order to get them to vote, but as Latinos become a bigger chunk of the electorate with every passing year, campaigns have no choice but to work harder — meaning campaigns should start earlier.
Early outreach also matters because Republicans will have to make up significant ground when pivoting from the primary to a general election next year. Biden and national Democrats now have the advantage of incumbency that Trump had in 2020, when he spent months campaigning in Arizona, Florida, Nevada, and Texas before the Democrats had even chosen a nominee.
In 2020, Biden and his campaign were the frequent targets of criticism from Latino activists and strategists, who complained about his campaign’s weaker and slower efforts compared to rivals like Sens. Bernie Sanders and Elizabeth Warren (Sanders in particular saw greater support among Latinos than Biden). Strapped for cash, Biden’s campaign had to make strategic decisions about just how much to invest in Latino outreach in the primary while keeping his campaign alive in early-voting states, which hobbled his general election Latino outreach efforts, and contributed to Trump’s improvement.
In looking to contest more states in 2024, Latino voters will be crucial for both parties. Any inroads by Republicans in swing states where Latino voters make up a significant chunk of voters would make a Biden victory much more difficult next year. His road to the White House still hinges on a victory in the three so-called “Blue Wall” states of Wisconsin, Michigan, and Pennsylvania or the southwestern Sun Belt states that he won in 2020: Arizona, Nevada, and Georgia. Big enough Republican gains among Latinos to flip the Sun Belt, plus victory in Florida (which seems likely) would set the Republican presidential nominee on the path to the White House.
And those kinds of marginal gains are very possible. Most post-2020 analyses of how Latinos voted in that presidential election and the 2022 midterms show Republicans have room to grow and might not have yet hit their ceiling for support among swing Latino voters. Republican candidates won about 39 percent of Latino voters nationally in 2022, keeping the share of GOP support steady from 2020, when Trump won about 38 percent of Latinos. Both were high points recently in GOP Latino support: In 2018, Republicans had lost Latinos by a 40-point margin; in 2016, Trump had lost them by nearly the same number. Those trends show up when looking at battleground states specifically too.
As things stand, Republicans stand likely to repeat this showing, pulling in support from the upper 30 percent of Latino voters. A post-election poll from the progressive Latino research group Equis found that among registered Latino voters in battleground states, Trump or a generic Republican candidate could still grow their support by anywhere from 4 to 9 points, mostly due to Latinos who sat out the midterm elections reengaging in politics. Republicans have the biggest room to grow among those least-engaged Latino voters who turned out in 2020 but neither of the last two midterms.
“The discussion now turns to: Okay, so, now what? Do we just focus on keeping our gains? Is it possible to win the Hispanic vote outright or are we looking at a more gradual approach?” the Republican media strategist Giancarlo Sopo told me. “Most of our gains are coming from English-dominant Hispanics. How can we build upon that and gain ground with Spanish-dominant Latinos? A lot of this will depend on who our nominee is next year and what the map looks like.”
Sopo, who is supporting Florida Gov. Ron DeSantis’s primary campaign, said Biden’s consistently low polling support from Latino voters (compared to past Democratic presidents and nominees) is a further sign that Republican candidates have opportunities for slow chipping away of support. To him, DeSantis’s success in Florida (winning 60 percent of Latinos in his reelection bid) is a sign of what could work nationally.
“I have never seen a Democratic president consistently poll in the low 40s with Latinos — it is unheard of,” Sopo said. (Biden’s favorability ratings have sunk to the low 40s for the last year, matching his favorability among all voters.) “If Ron DeSantis is able to replicate in places like the Lehigh Valley [in Pennsylvania], Phoenix, Milwaukee’s South Side, and Vegas just a fraction of what he’s done in Florida with Hispanics, the 2024 map suddenly becomes very interesting.”
But aside from DeSantis, it doesn’t seem like the Republican presidential hopefuls have gotten too serious about signaling that they care about Latino voters just yet.
The Republican primary contenders’ Latino influence efforts are virtually nonexistent
The first glaring sign that Republicans might not have learned their lessons isn’t immediately obvious, but would be clear to any Spanish-speaking voter trying to understand who these candidates are. None of the nearly dozen-declared GOP presidential primary contenders (except for one) have a Spanish-language website, or an option to read about the candidate in a language other than English.
That includes the candidate who made those big national gains among Latino voters — Donald Trump — his more moderate challengers like former Govs. Asa Hutchinson, Nikki Haley, Chris Christie, or Sen. Tim Scott, and the sole Latino candidate in the race, Miami Mayor Francis Suarez. The one candidate who has a Spanish-language option is Ron DeSantis — whose campaign website can toggle to a Spanish translation.
That none of the candidates of color, who have made their identities a part of their quest to distinguish themselves from the frontrunner, have options to read their sites in Spanish is also jarring. None of the campaigns replied to requests for comment on their sites, or on plans for Latino voter outreach and engagement, except for Suarez’s.
“We are the only campaign that speaks Spanish, posts in Spanish, and gives speeches in Spanish. Campaigns that call using a translation software an effort at outreach is laughable,” a Suarez spokesperson said in a statement.
In contrast, the Biden-Harris campaign site has a Spanish-language portal that visitors can toggle to on the campaign’s main landing page, even though it was scrutinized for typos and hard-to-understand translations when it was launched. That Spanish portal includes links to a Spanish-language translated version of the ticket’s campaign launch video, a donation portal, and ways to get in touch with the campaign.
Spanish language translations aren’t the be-all-end-all of Latino outreach: Most Latino voters in the US do speak English. But experts say it’s the lowest-hanging fruit for a campaign to signal to voters, donors, media, and the world that they are serious about a constituency that has often been taken for granted by candidates and campaigns on both ends of the political spectrum.
“A lot of [political campaigning and outreach] is about symbolism, that you show that you care and are considering the Latino voter. People can say that you’re pandering, but it’s being considerate of who we are,” Daniel Garza, the president of the fiscally conservative, libertarian-aligned Libre Initiative, told me.
The issue mattered back in the heat of the 2020 Democratic primary too. Democrats faced heat for having poorly translated Spanish-language websites or not having websites at all. It was an especially jarring realization for many progressive candidates and supporters, given the primary had become a proxy for the identity and future of the Democratic Party — and its leading establishment-type contenders had just failed one highly visible test.
Now, it’s Republicans who may face some heat over this omission.
“Part of [the reason they don’t have Spanish-language options] is that they recognize that in order to win a primary they need the base Republican voter, and that base Republican voter sadly identifies with the Trump party more than anything,” Maria Teresa Kumar, the president and CEO of the liberal activist group Voto Latino, told me. “Doing a hat tip of any kind to Latinos would actually be counter-brand to white nativist movements.”
Beyond the missing Spanish on these presidential websites, it’s not clear that these Republican primary contenders have stood up any outreach operations or begun hiring any Latino talent to do that outreach.
In response to questions from Vox asking about their Latino strategy or hiring, none of the campaigns provided any details. Never Back Down, the super PAC supporting DeSantis, did highlight DeSantis’s accomplishments last year — “the first Republican governor in decades to win majority-Hispanic Miami-Dade County, increasing his vote share by 16 points and flipping the long-time Democratic stronghold,” spokesman Dave Vasquez said — but didn’t provide details of plans by the organization to spend in Spanish-language advertising or engage Latino voters in early voting states.
Garza, meanwhile, said that even the simple fact that DeSantis has a Spanish-language option is one immediate flag that his campaign will likely try to build on the support the governor won in 2022. “There’s a Spanish saying: ‘Dime a lo qué atiendes y te diré quién eres.’ [“Tell me what you tend to and I’ll tell you who you are.”] If already DeSantis is giving attention to the Latino community by putting out a website in Spanish, and he’s the only one, that’s actually a way of distinguishing yourself,” Garza said. “I can see why he got a majority of the Latino vote in Florida. It’s a ripe community that can render big benefits for you if you do cater to them.”
Trump and DeSantis both have advantages with certain Latino communities in Florida — though DeSantis may face a challenge as an anti-immigrant law he championed is enforced in his state.
Trump’s frequent stops in South Florida show his staying power and appeal, while DeSantis obviously won their votes, but their first test in the 2024 cycle will come in Nevada.
Latino voters make up a significant chunk of general election voters there, but not as large a part of the primary electorate. Republicans have a chance to show how they could expand a general election electorate if they turn out new primary voters, but that will require a degree of investment and campaigning that Republicans haven’t shown in recent elections.
They have a lot of time to work with — it’s best if they start now.
13 questions about bird flu, answered.
In the last two years, more than half a billion birds have died globally. The cause isn’t deforestation or climate change or the destruction of grasslands — all of which are contributing to the precipitous decline of wild birds — but avian influenza, i.e., bird flu.
The majority of these birds were farmed chickens and turkeys; as the virus, known as H5N1, began circulating among poultry flocks in the US, Europe, and elsewhere, farmers started culling a record number of birds to stop the pathogen from spreading.
Yet what’s unusual about this virus is that it’s also been spreading rapidly among wild birds and even mammals, such as mink and sea lions, often causing severe infection or death. This raises a red flag among health officials.
“The increasing number of H5N1 avian influenza detections among mammals — which are biologically closer to humans than birds are — raises concern that the virus might adapt to infect humans more easily,” three United Nations agencies, including the World Health Organization, warned in a recent statement. “These outbreaks pose ongoing risks to humans.”
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Bruna Prado/AP
The risk of humans contracting bird flu is still incredibly low, new research shows, and the virus does not have the biological machinery to cause a pandemic (unlike the SARS-CoV-2 virus, which is great at spreading among humans). But the more this pathogen spreads, especially among mammals, the more opportunities it has to evolve traits that make it dangerous. That’s why scientists are taking it so seriously.
What is bird flu?
Avian influenza, or bird flu, is a general term for the disease caused by influenza viruses that primarily infect and spread among poultry and some wild birds. They’re distinct from viruses that cause the flu in humans, though they’re related.
These avian viruses are common. They’ve been circulating for eons among wild waterfowl, such as ducks and geese, without causing them much harm. Mild forms of infection are called low-pathogenic avian influenza, or LPAI, which means they’re typically not deadly.
The type of avian influenza spreading today is different.
Occasionally, an LPAI virus can jump from wild birds to poultry farms. As the virus replicates in densely packed warehouses of farmed birds, it can quickly evolve and pick up adaptations that make it highly deadly to poultry. At that point, it gets dubbed a highly pathogenic avian influenza virus, or HPAI virus. That’s what’s circulating today — an HPAI virus.
Still, these more deadly forms of avian influenza viruses are not new. They’ve caused outbreaks on poultry farms many times in the past that have killed thousands to millions of farm birds. What makes this particular form of avian influenza virus so unusual is that it easily spreads and causes severe disease among wild birds and — importantly — some mammals.
Why is it in the news right now?
The particular type of avian influenza spreading today descended from a virus that caused an outbreak on a goose farm in Guangdong, China, in 1996. That virus — one of a type of virus known as H5N1 — was highly pathogenic and killed more than 40 percent of the farm birds it infected.
Since then, H5N1 viruses of Guangdong descent have caused sporadic outbreaks among poultry and some wild bird populations, largely in the Eastern Hemisphere. But around late 2021, the HPAI virus started going global, arriving in North America and then spreading south.
Bird flu first became big news in the US when it started spreading among poultry farms, forcing farmers to cull millions of egg-laying hens. That threatened the livelihood of farmers and sent egg prices soaring in late 2022 and early this year.
Then more and more reports of the virus spreading among wild birds and both farmed and wild mammals emerged, raising concern among health officials and independent scientists. That made it clear that this virus is different than past forms of avian influenza — and potentially a greater risk to humans.
Last summer, thousands of dead seabirds began washing up on the shores of eastern Canada. That fall, meanwhile, avian flu infected large numbers of mink at a fur farm in northwestern Spain. On the farm, the virus picked up a genetic mutation that could make it better at replicating within mammalian cells, raising concerns that it could eventually jump over to humans.
This form of HPAI virus has now spread to every continent other than Australia and Antarctica. Scientists now say it’s causing a “panzootic,” meaning a pandemic among animals, and health officials are racing to get it under control.
What kinds of animals are getting infected?
What makes the virus particularly troubling is that it infects an incredibly wide array of both farmed and wild animals. The list includes more than 150 species of wild birds — from terns to owls to vultures — including those that are already threatened with extinction for other reasons.
Since March, for example, more than 20 endangered California condors in the Southwest have died, and most of them tested positive for avian flu. The largest bird in North America, with a wingspan that can reach more than 9 feet, the California condor almost went extinct in the 1980s due to lead poisoning and other factors. A successful captive breeding program revived the population, which now stands at roughly 550 worldwide.
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Richard Vogel/AP
These sorts of die-offs are troubling, ecologists say.
“Large die-offs can impact populations of these species for decades and may contribute to species collapse and further ecosystem damage, particularly given the critical declines seen in North American bird biodiversity over the last half century,” scientists wrote in the April study, which tallied reported and suspected cases of H5N1 in North American birds.
Then there is the growing list of infected mammals. Outbreaks among mink and marine mammals have garnered the most attention; earlier this year, officials reported that bird flu killed almost 3,500 seal lions in Peru and thousands more in Chile. Officials have also detected the virus in dozens of other wild animal species including tigers, bears, otters, raccoons, coyotes, and dolphins. Some pet dogs and cats have also been infected (more on that below).
How many birds have died?
Globally, the current outbreak has killed — or forced farmers to cull — more than half a billion poultry worldwide, according to a preprint (i.e., not yet peer-reviewed) paper published in May. In the US, that number is roughly 59 million as of July 12.
The toll the virus has taken on wild birds is more difficult to pinpoint.
In the US, suspected or confirmed cases of H5N1 in wild birds are in the tens of thousands, according to a study published in April. Reporting by the Guardian revealed that the flu has killed more than 50,000 birds in the UK. In eastern Canada alone, roughly 40,000 birds have been reported as sick or dead, likely linked to the flu, as I previously reported.
Most of these numbers are likely underestimates. Government agencies don’t have the resources to test every dead bird. Plus, many individuals die out at sea, or in rural areas that lack surveillance. In reality, the total number of dead birds is likely in the millions globally, according to the preprint.
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Seth Wenig/AP
Is bird flu still inflating egg prices?
As avian flu swept through poultry farms last year, farmers killed millions of birds. Fewer birds meant fewer eggs, and fewer eggs sent egg prices soaring. In December of 2021, the US had roughly 328 million egg-laying hens; a year later, that number had fallen to about 308 million.
While avian flu is still spreading among wild animals globally, health officials and farmers have largely managed to curtail infection among poultry in recent months, at least in the US. And that’s caused egg prices to drop. The wholesale cost of a dozen eggs in the US is now just over a dollar, compared to around $5 in parts of the country earlier this year.
Can humans get bird flu?
Yes, we can, though infection is highly uncommon.
Prior to the current outbreak, several hundred people had been infected by H5N1 viruses (similar to the one spreading today) and more than half of them died, according to the Centers for Disease Control and Prevention.
But that should not alarm you. Even though avian flu is currently somewhat widespread among birds and some mammals, it rarely spreads to humans, according to the WHO. Since late 2021, when the virus was going global, health officials have only reported eight cases of H5N1 infection in humans. At least one of them, an 11-year-old girl in Cambodia, died.
Nearly all cases of human infection involve people interacting with loads of sick birds on poultry farms. That indicates that the virus is likely only capable of infecting a human if they are exposed to an enormous viral load.
What are the symptoms of bird flu?
Sick birds can shed the virus through their saliva, mucus, and droppings. Humans risk infection when these infectious substances get into their eyes, nose, or mouth. (Fortunately, most people naturally want to avoid bird poop in their mouths.)
What’s a bit confusing about bird flu symptoms is that they can vary a lot — and they can overlap with those of other respiratory diseases including Covid-19. Symptoms can be nonexistent or subtle, such as eye redness or a mild flu, or show up as a high fever (above 100 degrees Fahrenheit) and pneumonia. Coughs, sore throats, congestion, body aches, headaches, fatigue, difficulty breathing, and diarrhea have also been linked to bird flu, according to the CDC.
If you’ve been exposed to birds infected with avian influenza, you should monitor yourself for any signs of illness for 10 days, per the CDC. And if you have any of them, err on the side of caution and contact your local health department. (Here’s a directory.)
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Erin Hooley/AP
Could bird flu become a human pandemic?
The avian influenza virus circulating today is almost certainly incapable of spreading dangerous infections to people around the planet. Simply put, it does not have the proper biological machinery to easily invade — let alone circulate among — humans. If you want to go a layer deeper, here’s how my coworker Dr. Keren Landman (a physician) and I explained it earlier this year:
To infiltrate a host, viruses first have to bind to certain receptors on the surface of their cells. The virus that’s currently spreading, H5N1, does this using a specific kind of protein known as hemagglutinin 5, or H5. You can think of H5 as a key and receptors as the locks.
Following this metaphor, H5 can unlock certain receptors found in cells that line the respiratory and digestive tracts of birds. By invading those cells and replicating, the virus can damage these vital systems, making it difficult for the birds to breathe and easy for them to spread the virus among themselves (through breath and feces).
Humans have some similar, avian-type receptors in our respiratory systems, too. But for reasons scientists don’t fully understand, they don’t make us as vulnerable to avian flu as birds are. Critically, we also have a higher number of different, non-avian-type receptor that bird flu viruses don’t like to bind to quite as much. The abundance of those non-avian receptors in our noses seems to protect us from being easily infected by viruses like H5N1.
The bottom line: In its current form, the virus doesn’t easily bind to cells in our airways, so it’s harder for the virus to infect us.
But even if HPAI could easily infect humans, and replicate within our cells, it wouldn’t necessarily become a public health emergency. Typically, for a virus to cause a pandemic, it must be human-to-human transmissible — particularly through the air, like how SARS-CoV-2 spreads — and, at this time, there’s no indication that this virus has that ability.
“With the information available so far, the virus does not appear to be able to transmit from one person to another easily,” said Dr. Sylvie Briand, WHO’s director of epidemic and pandemic preparedness and prevention, in a recent press release.
So why are health officials concerned?
Viruses evolve quickly, and unpredictably. Not only do they mutate, but they can also swap entire portions of their genomes with other viruses — creating new frankenviruses — if two or more of them infect the same host. Under the right circumstances, this evolution could give the virus the tools to replicate more easily in mammals, which would make them more threatening to humans.
That’s what makes the outbreak among wild birds today so concerning. The more the virus spreads, the more opportunities it has to evolve dangerous traits.
During most past outbreaks, only poultry farms were badly infected, so farmers and health officials could kill giant flocks of infected farm birds and exercise other biosecurity measures to stem the spread. But now that wild birds are a reservoir for HPAI, containment is much, much harder. Indeed, no matter how much culling farmers do, wild flocks could still pass H5N1 over to domestic populations.
Once wild birds contaminate farms, the risks skyrocket. Viruses evolve much more quickly within animals that are packed tightly together, simply because they have more bodies to grow in. On farms, they’re also known to pick up adaptations that make them better equipped to replicate among mammals, Wendy Puryear, a molecular virologist at Tufts University, told Vox earlier this year. (It’s not clear why).
Another challenge is that when the virus is widespread among wild birds, it has more opportunities to spill over directly into mammals. That’s how all those seals and mink and other mammals likely got sick, Puryear said — they came into contact with infected birds. And as these microbes replicate within their cells, the flu viruses can pick up traits that make them more harmful to humans.
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Robert F. Bukaty/AP
This is not just theoretical. In a recent study, Puryear found that some H5N1 viruses infecting seals in New England had genetic changes that have been shown to make them more efficient at replicating within the cells of mammals. Researchers have found similar adaptations in H5N1 viruses found in foxes and mink. Studies in wild birds and poultry have also identified mutations that may make the virus better at binding to “human-like receptors,” according to the WHO’s recent statement.
“Studies are underway to identify any changes in the virus that may help the virus to spread more easily among mammals, including humans,” the WHO said.
What about dogs and cats?
Although it’s rare, both dogs and cats can catch bird flu. Earlier this summer, veterinary officials reported that at least 16 cats died in Poland and tested positive for H5N1 bird flu, according to the Netherlands-based news agency BNO News. It’s the first time avian influenza has been linked to a large die-off in cats.
Influenza in pet dogs and cats is, in most cases, linked to the consumption of sick birds or infected raw meat. Last spring, for example, a pet dog in Canada died from H5N1 after chewing on a dead goose. So a simple way to protect your animals is to keep them indoors or on a leash. You should also avoid feeding them raw meat from game birds or poultry, according to the government of Canada.
Keep an eye out for symptoms of bird flu, which include fever, exhaustion, pink eye, lack of appetite, difficulty breathing or other respiratory symptoms, and neurological signs (such as tremors or seizures), per the Canadian government.
Is there a human vaccine for bird flu?
Yes. The US government has a stockpile of vaccines, including those specifically for H5N1, according to the CDC. “Since flu viruses change constantly, CDC continues to make candidate vaccine viruses (CVVs) as needed,” the CDC states.
Meanwhile, companies that manufacture vaccines say they could quickly make millions of flu shots, Reuters reported. Last spring, three companies including GSK and Moderna told the news agency that they’re developing vaccines designed to strengthen the human immune system against the particular type of HPAI spreading today.
“It’s not Covid,” Puryear said, referencing how there were no coronavirus vaccines stockpiled when the pandemic hit. “In theory, we should be able to respond quickly if this becomes an issue.”
One big caveat: Should we need bird flu vaccines, a large portion of them will likely go to rich countries first, leaving more vulnerable nations at risk.
What about a vaccine for birds?
Yes, there are some effective bird vaccines for H5N1 on the global market, as my colleague Kenny Torrella has written; countries including Egypt, Mexico, and Indonesia are already using them.
In the past, the USDA has licensed a handful of bird flu vaccines, though none of them are approved for the current strain, according to the American Medical Veterinary Association. Still, the USDA hasn’t approved them for actual use in mass vaccination campaigns on farms, Torrella writes, due to something called the “DIVA problem”:
DIVA is short for “differentiating infected from vaccinated animals” — the challenge of identifying whether a bird is actually infected with avian influenza, or just has avian influenza antibodies after vaccination. Countries fear that importing eggs or slaughtered meat from vaccinated birds in countries where the virus is circulating could inadvertently spread it within their own borders by introducing the virus to wild or domesticated animals through discarded raw meat.
That means that big poultry exporters like the US — which sends 18 percent of its poultry abroad — don’t vaccinate, for fear they’ll miss out on a huge part of their revenue: international trade.
That said, the USDA began testing several potential bird flu vaccines in April to see how well they might respond to the current strain of influenza virus. Vaccines could be commercially available within 18 to 24 months, the agency said in April. Several other countries are also testing influenza vaccines for birds.
Separately, USDA has approved the emergency use of a bird flu vaccine for the critically endangered California condors “in an attempt to prevent additional deaths of these birds.” Veterinary officials will start vaccine trials for condors later this month, according to Joanna Gilkeson, a spokesperson for the US Fish and Wildlife Service.
How can I help?
If you have pets, prevent them from interacting with infected birds. That means keeping your cat indoors and your dog on a leash.
You can also help monitor the outbreak, especially if you already spend a lot of time outdoors looking for wildlife. Birders are “the eyes and ears of this panzootic,” Nichola Hill, an infectious disease ecologist at the University of Massachusetts Boston, told Vox earlier this year. “I don’t think they’re being harnessed enough.”
While people are used to photographing beautiful wildlife on their phones and uploading it to platforms like iNaturalist, right now it’s more important that they document dead birds, she said. (iNaturalist actually has a webpage exactly for this purpose.) If you find a dead wild bird and are not sure what to do, check out this one-pager from the USDA.
Tips, comments, or questions? Reach me at benji.jones@vox.com.
Keren Landman and Kenny Torrella contributed reporting.
The major questions doctrine, explained.
In the less than three years since President Joe Biden took office, the Supreme Court has effectively seized control over federal housing policy, decided which workers must be vaccinated against Covid-19, stripped the EPA of much of its power to fight climate change, and rewritten a federal law permitting the secretary of education to modify or forgive student loans.
In each of these decisions, the Court relied on something known as the “major questions doctrine,” which allows the Court to effectively veto any action by a federal agency that five justices deem to be too economically significant or too politically controversial.
This major questions doctrine, at least as it is understood by the Court’s current majority, emerged almost from thin air in the past several years. And it has been wielded almost exclusively by Republican-appointed justices to invalidate policies created by a Democratic administration. This doctrine is mentioned nowhere in the Constitution. Nor is it mentioned in any federal statute. It appears to have been completely made up by justices who want to wield outsize control over federal policy.
And the implications of this doctrine are breathtaking. In practice, the major questions doctrine makes the Supreme Court the final word on any policy question that Congress has delegated to an executive branch agency — effectively giving the unelected justices the power to override both elected branches of the federal government.
Consider, for example, the Court’s recent decision in Biden v. Nebraska, which invalidated a Biden administration program that would have forgiven up to $20,000 in debt for millions of student loan borrowers. The Court did so despite a federal law known as the Heroes Act, which permits the secretary of education to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs … as the Secretary deems necessary in connection with a war or other military operation or national emergency.”
So Congress explicitly granted the executive branch the power to alter or forgive student loan obligations during a national crisis like the Covid-19 pandemic. But six justices, the ones appointed by Republican presidents, decided that they knew better than both Congress and the executive.
The premise of the major questions doctrine is that courts should cast an unusually skeptical eye on federal agencies that push out ambitious new policies. As the Court said in a 2014 opinion, “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”
In practice, however, this doctrine functions more as a freewheeling judicial veto than as a principled check on agencies. The Heroes Act, after all, is crystal clear in giving Education Secretary Miguel Cardona — and not the Supreme Court — final say over which loans are forgiven during a national emergency.
It is likely, moreover, that, although the Court did not invoke this doctrine once during the entire Trump administration, these justices will continue to wield this doctrine aggressively for at least as long as President Biden remains in office, fundamentally altering the balance of power among the three branches of government — and between the Democratic and Republican Parties.
A brief history of the major questions doctrine
The full origin story of the major questions doctrine is also an important chapter in one of the most important debates in US law: When should judges, who are not elected, defer to the two branches of government that are actually accountable to the American people?
The question of where exactly the doctrine comes from is nearly as contentious as the doctrine itself. Justice Neil Gorsuch has argued that it stretches back at least as far as an 1897 Supreme Court decision involving railroad prices. Other conservative legal experts, including former federal appellate judge Thomas Griffith, point to the Court’s decision in FDA v. Brown & Williamson Tobacco (2000) as “the seminal statement of the major questions principle.”
The reality is more nuanced. If anything, the Court has applied two entirely different versions of the doctrine in the last several decades — a weaker form that the Court announced in Brown & Williamson, and the much stronger form that the Court has used more recently to veto Biden administration policies.
In 1984, less than six months before President Ronald Reagan won reelection in a landslide, the Supreme Court handed down its decision in Chevron v. National Resources Defense Council. Chevron dealt with a perennial problem that will arise in any system where a legislature delegates policymaking authority to government agencies like the EPA or the FDA. Sometimes, the federal law laying out an agency’s authority is ambiguous, and it’s not entirely clear whether the agency is allowed to regulate in the way that it wants.
According to Chevron, courts should typically defer to an agency’s reading of a federal law if that law’s meaning is unclear. Such deference made sense, according to the Chevron opinion, for two reasons. The first is that “judges are not experts” in the wonky questions that often come before federal agencies. And it makes more sense to give the final say on questions of policy to experts, rather than to black-robed lawyers who may not know anything at all about, say, how much nitrogen should be discharged by a wastewater treatment plant.
Additionally, Chevron argued that giving the final say on policy questions to agency leaders is more democratic than giving this authority to judges. “While agencies are not directly accountable to the people,” the Court said in Chevron, the leaders of agencies are political appointees, and they answer to a president who is accountable to the voters. And so “it is entirely appropriate for this political branch of the Government to make such policy choices.”
Notably, Chevron — which again, was handed down at a time when the Republican Party was politically ascendant — was widely celebrated by conservatives. One of its biggest cheerleaders was Justice Antonin Scalia, who predicted in a 1989 lecture that “in the long run Chevron will endure and be given its full scope” because it “reflects the reality of government, and thus more adequately serves its needs” than the alternative.
During the Clinton administration, though, the Court created a narrow exception to Chevron. The conservative commitment to letting agencies make policy decisions without too much interference from the judiciary began to fray in Brown & Williamson, which involved a Clinton administration effort to discourage tobacco use by minors. To accomplish this, the Clinton-era Food and Drug Administration announced that nicotine counts as a “drug” that the FDA may regulate under the law giving it the authority to regulate “drug delivery devices.”
The Supreme Court, however, rejected this interpretation of federal law in a 5-4 decision that divided the justices along ideological lines.
Chevron held that courts should defer to an agency’s reading of an ambiguous federal law. The Brown & Williamson opinion argues that federal law “clearly precluded the FDA from asserting jurisdiction to regulate tobacco products” — that is, that the law is unambiguous and therefore Chevron does not apply. Essentially, the Court argued that tobacco is so dangerous that, if nicotine qualified as a drug that the FDA may regulate, then the FDA would have to ban it altogether. But other federal laws made it clear that Congress did not intend to ban tobacco outright.
After devoting nearly 30 pages to this argument, Brown & Williamson then tacked on four brief paragraphs laying out one more “reason to hesitate” before concluding that Congress intended the FDA to have authority over tobacco. “Contrary to its representations to Congress since 1914,” Justice Sandra Day O’Connor wrote for her Court, “the FDA has now asserted jurisdiction to regulate an industry constituting a significant portion of the American economy.”
The significance of this assertion, combined with the fact that Congress “repeatedly acted to preclude any agency from exercising significant policymaking authority” over tobacco, led O’Connor to conclude that “we are obliged to defer not to the agency’s expansive construction of the statute, but to Congress’ consistent judgment to deny the FDA this power.”
Brown & Williamson was a far cry from the aggressive major questions doctrine that the Court invoked in recent cases like Nebraska. In Brown & Williamson, the economic significance of tobacco was only one of many factors driving the Court’s decision, offered essentially as an afterthought after many pages of legal analysis. Brown & Williamson also did not hold that an agency’s action is invalid simply because that action was ambitious.
Nothing in Brown & Williamson prevents an agency from taking big swings when a federal law unambiguously permits it to do so. As legal scholars Daniel Deacon and Leah Litman lay out in a 2022 paper, neither Brown & Williamson, nor any other Supreme Court decision authored before Joe Biden became president, “purported to conclude that a statute unambiguously granting the agency the authority in question in fact required something more.”
During the Obama administration, though, many Republican lawyers and judges turned hard against Chevron, and against the broader idea that courts should stay away from decisions made by expert policymakers in federal agencies. Indeed, in Obama’s second term, the conservative Federalist Society’s annual meetings became a showcase of competing proposals to limit the power of executive agencies. And these proposals played a significant role in shaping the Trump administration’s judicial appointments.
According to a 2018 book by legal journalist David Kaplan, the reason the Trump White House chose Neil Gorsuch as their first Supreme Court nominee is that Gorsuch was an outspoken opponent of Chevron and a clear ally in the Federalist Society’s campaign to transfer policymaking authority from federal agencies to the judiciary.
One sign that the major questions doctrine is best understood as a partisan effort to frustrate Democratic administrations is that it laid dormant during the entire Trump administration — the Supreme Court did not invoke it once during the four years that Trump was in office, and it’s not like Trump’s administration was shy about using executive power.
After Biden took office, however, the major questions doctrine became a mainstay of the Court’s decisions limiting the new administration’s power to govern. The Court invoked it in decisions striking down an eviction moratorium intended to slow the spread of Covid-19, blocking a requirement that most workers either vaccinate against Covid or submit to regular tests for the disease, stripping the EPA of much of its authority to regulate power plants, and in its Nebraska decision halting the student loan forgiveness program.
The Court’s most recent major questions decisions went far beyond Brown & Williamson, wielding the doctrine as a freewheeling power to veto regulations that five justices do not like.
At most, Brown & Williamson created an exception to Chevron, holding that the Court will not defer to an agency’s reading of an unclear federal law when that agency seeks to regulate “a significant portion of the American economy.” In Nebraska, by contrast, the Court struck down the Biden administration’s student loan program even though it was unambiguously authorized by the Heroes Act.
The Heroes Act does not simply provide that the education secretary may “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs … as the Secretary deems necessary in connection with a war or other military operation or national emergency,” it also contains several other provisions indicating that Congress intended to delegate broad authority to the executive.
The Heroes Act, for example, permits the education secretary to bypass procedural barriers that agencies typically must overcome before they announce a new regulation. It allows the secretary to dole out student loan relief en masse, rather than “on a case-by-case basis.” And it states that the secretary may exercise this power “notwithstanding any other provision of law, unless enacted with specific reference to” the Heroes Act.
Congress, in other words, could not have been clearer that it intended for the secretary to have a broad power to provide student loan relief, “as the Secretary deems necessary,” to all student borrowers impacted by a national emergency. And yet Nebraska struck down the student loan forgiveness program despite this unambiguous authorization from Congress.
The Court’s Biden-era decisions also suggest that Biden’s political opponents may be able to invalidate a federal regulation simply by complaining about it.
The major questions doctrine applies when the Court determines that a federal agency’s action touches upon matters of “vast ‘economic and political significance.’” In West Virginia v. Environmental Protection Agency (2022), however, the Court struck down an environmental regulation that never went into effect, and that likely would not have had much economic impact at all had it done so.
The case concerned the Clean Power Plan, Obama-era regulations that, when they were announced in 2015, were believed to be a very ambitious effort to fight climate change. Among other things, they required many power generators to hit certain emission reduction targets by 2030. These regulations never took effect, however, because the Supreme Court temporarily blocked them in a party-line vote in 2016.
By the time the West Virginia case reached the Court in 2022, moreover, the Clean Power Plan looked much less ambitious than it had seven years earlier. Even though Obama’s regulations never took effect, the energy industry reached the Clean Power Plan’s 2030 goals in 2019 — largely because older, dirtier plants are more expensive to operate than cleaner energy sources, so the industry shifted away from these plants even without the government requiring them to do so.
So, by 2022, it was clear that the Clean Power Plan would not have a vast economic impact on the energy industry. It had, however, generated massive political controversy, as the plan was widely opposed both by Republican politicians and by the industry itself. And that may explain why the Supreme Court struck it down despite its relative economic insignificance.
The major questions doctrine, in other words, allows conservative political movements to gin up controversy around a federal policy, and then point to that controversy to justify striking the policy down because of its “political significance.” As Deacon and Litman write, “the Court’s new approach allows political parties — or political movements more broadly — to effectively amend otherwise broad regulatory statutes by generating controversy surrounding an agency policy.”
So what is the case for the major questions doctrine?
The Supreme Court has never explained in a majority opinion where the major questions doctrine comes from, or what legal authorities justify creating it. That said, some of the Court’s Republican appointees have written opinions, joined by only a minority of their colleagues, which attempt to defend its existence.
In a concurring opinion published alongside the Court’s decision in NFIB v. OSHA (2022), for example, Gorsuch argued that the major questions doctrine is closely related to a different, equally controversial doctrine known as “nondelegation,” which claims that the Constitution places strict limits on Congress’s power to delegate policymaking authority to federal agencies.
Gorsuch argued both of these doctrines ensure “that the national government’s power to make the laws that govern us remains where Article I of the Constitution says it belongs—with the people’s elected representatives.” His opinion was joined by Justices Clarence Thomas and Samuel Alito.
One problem with Gorsuch’s argument is that it cannot explain a decision like Nebraska. No one seriously contests that the “power to make the laws” rests with the “people’s elected representatives” in Congress. But it was Congress that enacted the Heroes Act. The Biden administration merely exercised the authority given to it by the people’s representatives.
Gorsuch’s reference to the nondelegation doctrine offers one way around this problem. But the nondelegation doctrine isn’t exactly grounded in well-settled law. From 1789, when the US Constitution first took effect, until 1935, the Supreme Court did not strike down a single law on the grounds that it delegated too much authority to a federal agency. It then struck down two such laws in 1935 — and then never did so ever again.
The Court, moreover, has held time and time again since 1935 that Congress has broad authority to delegate power to federal agencies. As it said in Mistretta v. United States (1989), “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.”
Nor is there any serious argument that the Constitution was originally understood to place significant limits on Congress’s ability to delegate power to federal agencies. As law professors Julian Davis Mortenson and Nicholas Bagley note in a 2020 paper, the very first Congress enacted numerous laws giving vast discretion to executive branch officials. It allowed officials overseeing the Northwest Territory, for example, to “adopt and publish in the district, such laws of the original States, criminal and civil, as may be necessary, and best suited to the circumstances of the district.” And the first Congress delegated the entirety of its power over patents to executive branch officials, allowing the secretary of state, the secretary of war, or the attorney general to grant patents so long as they “deem the invention or discovery sufficiently useful or important.”
Gorsuch’s NFIB opinion, in other words, attempts to justify the major questions doctrine, which has no basis whatsoever in the Constitution, by tying it to another legal doctrine that has no basis in the Constitution.
Meanwhile, in a concurring opinion, joined by no other justice, in the Nebraska case, Justice Amy Coney Barrett offers a completely different justification for the major questions doctrine — analogizing it to a conversation between a parent and a babysitter.
Barrett asks her readers to consider a parent who, as she is walking out the door for a weekend getaway, “hands the babysitter her credit card and says: ‘Make sure the kids have fun.’” She then imagines that 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.”
Barrett concedes that the babysitter’s action may be justified by the parent’s instructions “in a literal sense,” but that it was nevertheless unreasonable for the babysitter to spend so lavishly on the children temporarily in their care. “If a parent were willing to greenlight a trip that big,” Barrett writes, “we would expect much more clarity than a general instruction to ‘make sure the kids have fun.’”
This is, of course, a metaphor for the major questions doctrine. “Just as we would expect a parent to give more than a general instruction if she intended to authorize a babysitter-led getaway,” Barrett writes, “we also “expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”
It’s an interesting argument, but also an imprecise one. Courts typically hold Congress to the precise words it actually enacted into law, unless there is actual evidence in the law itself which suggests that those words should be given a counterintuitive meaning. And, like Gorsuch’s argument in NFIB, Barrett’s Parable of the Babysitter cannot explain the Court’s decision in Nebraska, which Barrett joined.
Indeed, Barrett seems to admit as much in her Nebraska concurrence. While she argues that a babysitter normally should not think they are authorized to go to Disney World, she admits a babysitter might be justified in taking such a trip if there were “obvious contextual evidence that the babysitter’s jaunt was permissible — for example, maybe the parent left tickets to the amusement park on the counter.”
But that is exactly the scenario presented by the Heroes Act! Congress didn’t simply determine that, in the midst of a national emergency, the education department may forgive student loans “as the Secretary deems necessary.” It also waived procedural barriers that would slow this process. It explicitly authorized the secretary to provide relief to many borrowers at the same time. And it said that the secretary may do so even if some other federal law contains language suggesting that they cannot.
The Heroes Act, in other words, is the equivalent of a parent who told a babysitter to “make sure the kids have fun” while simultaneously handing the babysitter a guidebook on Disney vacations, a list of hotels near the park, and a set of Mickey Mouse ears for each of the children.
All of which is a long way of saying that it is difficult to take the major questions doctrine seriously. The Court applies it in a haphazard way. It’s never settled upon an explanation for why this doctrine exists. And, when individual justices have attempted to offer such an explanation, their arguments cannot be squared with the Court’s actual decisions applying the major questions doctrine.
Worse, the doctrine is part of a 40-year cycle where the Court read the power of agencies to set federal policy expansively while the Republican Party was politically ascendant, and then reined in the executive branch once it was controlled by Democrats.
The whole point of decisions like Chevron is that they are supposed to prevent this kind of partisan behavior by judges. By instructing judges to stay out of policy matters that Congress delegated to a federal agency, regardless of whether that agency is led by a Democrat or a Republican, courts ensure that the voters will have the final word on federal policy, rather than a handful of lawyers in robes.
But this Court does not believe in such deference, at least as long as Joe Biden is president.