By Charles C. W. Cooke
Thursday, June 30, 2022
This morning, six unelected judges on the Supreme
Court struck a fatal blow against Our Democracy™. In the
case of West Virginia v. E.P.A., the Court rejected the expansive
authority of the nimble, responsive, and representative Environmental
Protection Agency, and insisted that, under the American system of government,
federal laws must be made by the elected lawmakers of the United States
Congress. From Heav’n, James Madison must surely have wept.
The majority’s opinion was predicated upon a loophole
within the U.S. Constitution called “Article I,” which, among other things,
reads that “All legislative Powers herein granted shall be vested in a Congress
of the United States, which shall consist of a Senate and House of
Representatives.” This provision, the Court reasoned, can be reasonably
construed to preclude the executive branch from doing whatever it wants,
whenever it wants, without underlying statutory approval. Because “Congress did
not grant EPA in Section 111(d) of the Clean Air Act the authority to devise
emissions caps,” the majority concluded, the EPA is not permitted to “devise
emissions caps.” This, I need not point out, is precisely the sort of
too-clever-by-half sophistry that gives professional lawyers a bad name.
“The question before us,” Chief Justice Roberts confirmed
early on in his opinion, “is whether [the EPA’s] broader conception of EPA’s
authority is within the power granted to it by the Clean Air Act.” And, over 31
highly un-democratic pages, Roberts decided that it was not. As one might
expect, his opinion relied heavily on technicalities, such as the facts that
nobody had claimed until recently that the Clean Air Act meant what the EPA now
says it means; that Congress had declined to give the EPA the power in question
on multiple occasions; that “under the major questions doctrine,” the Court
needs to see “clear congressional authorization,” and such authorization
doesn’t exist in this case; that the EPA’s interpretation would represent a
“fundamental revision of the statute”; and that “there is little reason to
think Congress assigned such decisions to the Agency.”
Most distressing of all, Roberts steadfastly declined to
apply the U.S. Constitution’s crucial “But What If Congress Is Stupid?” clause.
“Members of Congress,” Justice Kagan noted in her dissent, “often don’t know
enough—and know they don’t know enough—to regulate sensibly on an issue.” And,
as we all know, when judges believe that lawmakers are stupid, democracy
requires that they hand those lawmakers’ powers over to bureaucrats within the
executive branch as soon as possible. By pigheadedly refusing to acquiesce to
the EPA’s ambitions, the Supreme Court has made a mockery of its role as a
neutral arbiter of the law and rendered itself even more un-democratic
than it was when it returned the abortion question to the voters last Friday.
A bitter hostility toward self-government simmered
throughout both Justice Roberts’s majority opinion and Justice Gorsuch’s
concurrence. “A decision of such magnitude and consequence,” Roberts suggested,
“rests with Congress itself, or an agency acting pursuant to a clear delegation
from that representative body.” “Administrative agencies,” Justice Gorsuch
insisted, “must be able to point to ‘clear congressional authorization’ when
they claim the power to make decisions of vast ‘economic and political
significance.’” “By vesting the lawmaking power in the people’s elected
representatives,” Gorsuch concluded, “the Constitution sought to ensure ‘not
only that all power [w]ould be derived from the people,’ but also ‘that those
[e]ntrusted with it should be kept in dependence on the people.’” Not since the
days of General Pinochet have we heard such brazen anti-democratic language as
this.
Dissenting mightily, Justice Kagan tried her best to
overcome the onslaught. Beginning her rejoinder with the Constitution’s
oft-ignored “But It’s Really Bad” clause, Kagan drilled down on the key legal
questions from the outset. “Climate change’s causes and dangers,” she noted on
page one, “are no longer subject to serious doubt.” “If the current rate of
emissions continues, children born this year could live to see parts of the
Eastern seaboard swallowed by the ocean.” Having set the stakes, Kagan then ran
through a series of important canonical approaches, before deftly concluding
that, when it insists that the executive branch exercise only those powers that
Congress has accorded to it, “the Court appoints itself—instead of Congress or
the expert agency—the decision maker.”
In Washington, D.C., America’s elected lawmakers were understandably
apoplectic. By returning power to the legislature, Senator Warren complained,
the Court had “destroyed the federal government’s ability to fight back”
against the problems she has identified without explicit congressional
authorization. On Twitter, meanwhile, Senate majority leader Schumer neatly
underscored the problem that the Court’s “extremist justices” had
caused. Now that the executive branch had been confined to its statutory
powers, Schumer explained, those who wish to “fight the climate crisis” in ways
that are not currently permitted by federal law will have to “pass meaningful
legislation” to that end.
How will Our Democracy™ survive such an unprecedented
assault?
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