Supreme Court Strikes Major Blow to the EPA

On the last day of its term, the Supreme Court came out with a major win for separation
of powers and the economy: West Virginia v. Environmental Protection Agency.
When Barack Obama was President, he ran out of political capital and could no longer
get Congress to do what he wanted. Defiantly, Obama declared, “I’ve got a pen, and
I’ve got a phone,” meaning that he would direct the Executive Branch to do what
Congress wouldn’t. Even Saturday Night Live mocked him when he used that pen and
phone to make a major immigration decision that should have been left to Congress.
One of his major decisions was using the Environmental Protection Agency to shift the
entire American energy sector from coal to natural gas to wind and solar power. The
federal government said that this would cost billions of dollars and tens of thousands of
jobs. The Trump Administration tried to change course but was immediately sued, and a
liberal court stopped it from changing the rule. Biden took over while that suit was still
pending, and West Virginia asked the Supreme Court to step in and kill the program
once and for all.
Fortunately, it obliged. In a 6-3 opinion, the Court held that the EPA’s decision violated
the “major question doctrine,” which provides that Congress must speak clearly when it
intends to delegate to an administrative agency the power to decide a major question.
This was undoubtedly a major question, and the EPA could not justify its authority
based on the statute that it invoked.
I have an op-ed coming out for 1819 News on Friday analyzing this case in layman’s
terms, but I wanted to take the opportunity to get more into the legal weeds here on The
Alabama Federalist.
While I like the major question doctrine, I wish the Court would do more to tie it to the
text of the Constitution. Technically, the Court considers the major-question doctrine a
canon of statutory construction. That’s all well and good, but to ensure that the Court is
not making up rules that nullify what the People’s representatives have said, the
sounder approach would be to get into the nondelegation doctrine and argue that the
Constitution itself does not grant the Executive Branch the authority to do things like
this.
Fortunately, Justices Neil Gorsuch and Samuel Alito took up the separation-of-powers
mantle. They traced the nondelegation doctrine’s roots to the Vesting Clause of Article I
of the Constitution, which vests legislative power in Congress alone. I think they were
right to do so. However, I wish the Court would be more courageous and take the
Vesting Clause to its logical conclusion. Not only does the Vesting Clause vest legislative power in Congress alone concerning major questions, but it also vests all legislative power in Congress alone.
Chief Justice John Marshall, early in the Supreme Court’s history, wrote that the
Constitution requires Congress to make the big decisions but allows agencies to fill up
the details. He may be right, but I wish that Justices Thomas, Gorsuch, or Alito would
take up the challenge by proving that through a thoroughly originalist analysis.
“Discipline” is the middle name of every good judge. The Supreme Court cannot simply
impose “reasonable” restrictions on constitutional commands; any exceptions or
limitations must be found in the text as informed by history so that they reflect the
Constitution’s original meaning.
But while there is work to be done on challenging the administrative state as a whole, I
am pleased that the Court’s three big major-question doctrine decisions from this year
struck down some of the federal administrative state’s worst actions. If you have to get
into problem-solving mode, it makes sense to knock out the biggest problems first and
then work your way down to the smaller ones.
I have to hand it to Justice Gorsuch, though: he concluded his concurrence with an epic
smackdown of Barack Obama: “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.”
That’s a burn that would have made the late Justice Scalia proud, and a great way to
end an epic term for the Court.