Opinion | The Supreme Court Restores a Constitutional Climate
This has been an historic Supreme Court term, and the Justices kept it going to the end with a major 6-3 decision Thursday (West Virginia v. EPA) reining in the administrative state. The subject was climate regulation but the message should echo across the federal bureaucracy.
The question was whether the Environmental Protection Agency could invoke an obscure statutory provision to re-engineer the nation’s electric grid. Prior to the 2015
rule, the EPA had used the provision only a handful of times to regulate pollutants from discrete sources.
The rule would have effectively required coal and gas-fired generators to subsidize renewables. It was stayed by the Court in 2016 but revived by the D.C. Circuit Court of Appeals last year. Now the Court is burying it for good, and its legal rationale is especially important.
Writing for the majority, Chief Justice
relies on the Court’s “major questions” doctrine. This requires courts to look with skepticism when agencies claim “‘in a long-extant statute an unheralded power’ representing a ‘transformative expansion” in its power. That’s what the Obama EPA did.
The three liberal dissenters criticize the majority for announcing “the arrival” of the major questions doctrine. But the Court has often invoked it over two decades to block administrative overreach, including during the Bush Presidency. Lower courts, by contrast, have mostly relied on the Court’s
precedent to defer to regulators.
The majority’s decision in effect diminishes Chevron by instructing lower courts to first consider whether regulators are seizing unheralded powers that Congress hasn’t authorized. The Chief cites the Centers for Disease Control and Prevention’s eviction ban and the Occupational Safety and Health Administration’s vaccine mandate, both of which the Court overturned.
dissent accuses the majority of abandoning textualism. “Some years ago, I remarked that ‘[w]e’re all textualists now,’” she writes. “It seems I was wrong. The current Court is textualist only when being so suits it.”
Textualism has become en vogue among liberal jurists because they can use it to bend statutory text to their policy preferences. First, they claim statutory language is ambiguous. Then they decide that under Chevron an agency’s statutory interpretation is reasonable.
Or sometimes they interpret narrow text broadly to give agencies expansive powers to do something that Congress never explicitly authorized or contemplated. Such faux-textualism divests the text of meaning.
The Court is now placing guardrails on Chevron to prevent lower courts from going off the constitutional road. Justice
concurrence, joined by
is especially helpful in lighting the way for lower courts grappling with when and how to apply the major questions doctrine.
First, he writes, the doctrine applies when “an agency claims the power to resolve a matter of great ‘political significance.’” Second, an agency “must point to clear congressional authorization when it seeks to regulate ‘“a significant portion of the American economy.”’” Third, it may apply when an agency seeks to intrude “into an area that is the particular domain of state law.”
Justice Gorsuch adds that courts must examine the legislative provisions on which the agency seeks to rely “‘with a view to their place in the overall statutory scheme’” and “may examine the age and focus of the statute the agency invokes in relation to the problem the agency seeks to address” as well as its “past interpretations of the relevant statute.” Note his emphasis on statutory language. The majority’s decision reinforces textualism as properly understood and bolsters the Constitution’s separation of powers.
The dissenters bemoan that Congress lacks the expertise to regulate technical subjects such as climate change. In a footnote, Justice Gorsuch devilishly cites
a progressive critic of the Constitution and a founder of the administrative state, as believing in government by experts because the people are fools. The real beef of the dissenters is that the Constitution purposefully makes it hard to pass laws.
Contrary to their critics, the Justices aren’t blocking climate regulation. They are merely saying that the decision on whether and how to do it rests with Congress. As with many other decisions this term, the Court is telling Congress and the executive to stay in their proper constitutional lane.
Congress must give clear commands before the executive branch can write costly rules that tell Americans how to live their lives. The Court is reinvigorating the separation of powers and enhancing liberty in the bargain.
Copyright ©2022 Dow Jones & Company, Inc. All Rights Reserved. 87990cbe856818d5eddac44c7b1cdeb8