On the last day of its term, the Supreme Court struck a major blow against the EPA (and the administrative state generally) in its 6-3 decision in West Virginia v. EPA.
It is no secret that the Left is willing to sacrifice the economy as an offering to the “god” of environmentalism. Just look at today’s gas prices. Joe Biden inherited an energy-independent nation, but he immediately took action to shut down the Keystone Pipeline and other sources of energy. Now, in Alabama, gas is over $4 per gallon, while Biden begs for oil from the Arabs, Venezuela and even Iran.
It should be no surprise that Barack Obama was willing to do even worse. During his second term in office, after he couldn’t get Congress to do what he wanted, President Obama infamously said, “I’ve got a pen, and I’ve got a phone.” He used those to make law, which is reserved for Congress alone.
As part of that initiative, the Environmental Protection Agency (EPA) rolled out a plan to shift American energy largely from coal to gas to wind and solar power in three phases from a series of rules to reduce carbon emissions. The EPA itself admitted that coal plants would not be able to comply. The federal government estimated that this would cost billions in compliance costs and eliminate tens of thousands of jobs. (The Trump administration tried to change the rule but was sued immediately by environmentalists. Biden came in while that suit was pending.)
This would have been devastating for the country. But just as the Aztecs found that cutting the hearts out of unwilling victims was a necessary sacrifice to the sun-god, so liberal environmentalists found that cutting the heart out of American energy was a necessary sacrifice to the earth-god. (I hear he looks a lot like Al Gore, has a bad track record of failed prophecies and flies around not on cherubs but on a private jet. Apparently hypocrisy isn’t a big sin in this religion. But I digress.)
Fortunately, when this case got to the Supreme Court, it held that the EPA couldn’t cut the heart out of the law-making process.
Over the last 20 years, the Court has been developing a doctrine called the “major question doctrine.” This holds that if Congress intends to delegate the power to an administrative agency, then it must clearly and unequivocally state that it is giving the power to the agency to make that decision. Because this is undoubtedly a major question, and because the EPA was trying to base its authority to make that decision on a statute that did not clearly give it the power to do so, the Court held that the EPA acted beyond its authority.
The Court made a good decision, not only because it saved American energy and the economy (well, rather, what Biden has left of them), but also because it stood up to abuses of power by the administrative state. Sometimes called the “fourth branch of government,” the constitutionality of the administrative state has long been questioned but rarely challenged since the New Deal Era. In a system where federalism and separation of powers are supposed to be prized, the courts have too often deferred to the administrative state, trampling these bulwarks of liberty. But three times over the last year, the Court has invoked the major question doctrine to check the Biden administration’s power to make major decisions for the American people when their representatives did not assent. My hope is that this will be a meaningful check on the administrative state going forward.
Justice Neil Gorsuch wrote a concurring opinion tracing the roots of the major question doctrine to the Vesting Clause of Article I of the Constitution, which says that all legislative power (which is the power to make laws) is vested in Congress alone. I think Justice Gorsuch is right, and I’m grateful that he said it. In the best line from the opinion, Justice Gorsuch concluded his concurrence as follows:
“When Congress seems slow to solve problems, it may be only natural that those in the Executive Branch might seek to take matters into their own hands. But the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives.”
The parting shot at Obama signals that no president can take Congress’s place. That’s a win for the rule of law, the environment, the economy, and all other would-be victims that the administrative state would have considered necessary sacrifices to a god that is not God at all.
Matt Clark is the President of the Alabama Center for Law and Liberty, a conservative nonprofit law firm that fights for limited government, free markets, and strong families in the courts. His column appears every Friday in 1819 News. The opinions expressed in this column are those of the author. The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819News.com.
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