The Supreme Court’s Civics Lesson

By Noah Rothman

Thursday, June 30, 2022

 

A momentous term for the Supreme Court ended on Thursday with one of the most consequential rulings it has handed down this year. With its decision in West Virginia v. Environmental Protection Agency, the Court has affirmed the notion that it is the purview of Congress—not the federal bureaucracy—to write laws. That lesson will be bitterly resisted, which is why it is so vital.

 

In this case, the Court was asked to determine whether the EPA has the authority to set rules around emissions generated by coal-burning power plants that are so strict they could have no other effect than to remove coal from the nation’s electricity mix. The Court ruled that this administrative effort to render an entire sector of the economy obsolete was not supported by statute or Congressional intent. Indeed, it was contemptuous of both.

 

“EPA claimed to discover an unheralded power representing a transformative expansion of its regulatory authority in the vague language of a long-extant, but rarely used, statute designed as a gap filler,” read the syllabus of the decision authored by Supreme Court Chief Justice John Roberts. “That discovery allowed it to adopt a regulatory program that Congress had conspicuously declined to enact itself.”

 

The EPA’s expansive interpretation of its statutory jurisdiction extended well beyond what Congress had approved. Indeed, the agency’s authority appeared to have been derived from that which Congress explicitly spurned. “Nor can the Court ignore that the regulatory writ EPA newly uncovered,” Roberts added, “conveniently enabled it to enact a program, namely, cap-and-trade for carbon, that Congress had already considered and rejected numerous times.”

 

The EPA seems to have assumed that “Congress implicitly tasked it, and it alone, with balancing the many vital considerations of national policy implicated in the basic regulation of how Americans get their energy. There is little reason to think Congress did so.” Given the burdens these regulatory actions impose on private interests—”billions in compliance costs,” an increase in “retail electricity prices,” the inevitable “retirement of dozens of coal plants,” and the elimination of “tens of thousands of jobs”—only Congress has this authority. Moreover, those burdens and their political consequences are so weighty that there’s no reason to believe Congress would have pursued such a course.

 

We know what the objections to this decision will be. The agencies tasked with protecting the environment from abuses by avaricious actors in the private sector assumed this expansive authority because Congress had not acted with sufficient zeal or alacrity. “The plaintiffs want to hem in what they call the administrative state,” New York Times reporter Coral Davenport’s dispatch ahead of the Court’s decision in this case read. “That should be the role of Congress.” Correct. “But Congress has barely addressed the issue of climate change,” she continued. “Instead, for decades it has delegated authority to the agencies because it lacks the expertise possessed by the specialists who write complicated rules and regulations and who can respond quickly to changing science, particularly when Capitol Hill is gridlocked.” This is the essence of the majority opinion striking down the EPA’s power grab.

 

None of this justifies seizing power extra-legally. Moreover, just because the federal legislature’s lethargy has led it to cede power to the executive branch and its stable of “experts,” that does not render its “delegation” of its constitutional authority valid. Congressional inaction is a verdict in and of itself, and the federal legislature is not obliged to outsource its obligations to unelected functionaries just because it’s squeamish about doing its duty.

 

The word “Chevron” appears only in passing in the majority opinion (though it features prominently in Justice Elena Kagan’s dissent), but this ruling will have a sweeping effect on the power of the administrative state to do what the country’s elected representatives would not. In 1984, the “Chevron Deference” established a principle that compelled federal courts to generally defer to an executive agency’s interpretation of unclear statutory language under the assumption that those agencies are better equipped than Congress to understand the minutiae they are tasked with regulating. This ruling does, however, chip away at that principle. The cracks that are forming around the blow the Supreme Court just struck against that doctrine are likely to grow in future terms.

 

“When an agency claims the power to regulate vast swaths of American life, it not only risks intruding on Congress’s power, it also risks intruding on powers reserved to the States,” the majority opinion noted. For those who cannot abide sitting around and waiting for the nation’s elected legislators to act on their demands, this is a terrifying prospect. This decision could imperil any number of what they consider vital regulatory frameworks that are legally supported by a dubious interpretation of the law. They should be afraid. They’re right.