The Supreme Court’s Extreme Power Grab

In West Virginia v. EPA, the conservative justices acted like they were handing power to the people, but in reality they were giving it to themselves.

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While the Supreme Court has been busy this summer stripping women of their constitutional rights, hamstringing states’ ability to regulate guns, and sidelining the constitutional mandate to keep religion out of government, it was easy to miss the conservatives’ power grab in a case called West Virginia v. Environmental Protection Agency. On June 20, 2022, the Supreme Court issued a decision limiting the agency’s ability to regulate carbon emissions to address global warming.

To understand what is really going on here, let’s start with some government 101 basics about the regulatory power that Congress (not the president) gives agencies like the EPA.

Immediately after West Virginia v. EPA was issued, conservatives praised the Court for narrowing the regulatory power of administrative agencies. Patrick Morrisey, the Republican attorney general for West Virginia, tweeted:

I wrote an article for The Atlantic detailing why Morrissey’s “Congress triumphed” argument gets the power dynamic all wrong. From the standpoint of the separation of powers, it’s not Congress that won the power grab here, but the Supreme Court’s far-right majority.

Read Article Here

The majority’s legal analysis ultimately centers on Article I of the U.S. Constitution, which vests “all legislative powers … in a Congress of the United States,” and Article II, which gives the president the “executive Power.” Strictly speaking, these job descriptions envision a Congress that generates laws and an executive branch that enforces those laws. But hundreds of federal agencies dot Washington, D.C., and many routinely make laws, referred to as “regulations,” because Congress gave them the power to do so. The Court’s decision radically questions Congress’s authority to do this. It’s therefore a very big deal.

Read more in my article in the Atlantic!


Here’s more on the who, what, when and why of the West Virginia v. EPA case.

Case: West Virginia v. Environmental Protection Agency clipped the EPA’s power to regulate greenhouse gases to combat climate change. The Obama-era Clean Power Plan (CPP) sought to reduce carbon pollution across power plants with a “cap and trade” policy while setting goals for individual states to cut power-plant emissions by 2030. In a shadow docket ruling, SCOTUS put the CPP on hold in 2016. Trump repealed the CPP in 2019 and replaced it with the Affordable Clean Energy Rule (ACER), which was also stalled in the courts. EPA argued that SCOTUS should have stayed out of this policy debate altogether because the CPP was dead and the Biden Administration had no plans to reinstate it. The Court took the case anyway.

Outcome: SCOTUS sidestepped the constitutional problem with ruling on a CPP that no longer existed (the Constitution only allows courts to hear cases that present a live controversy or dispute between parties). It reached out to hold that EPA’s failed effort to make industry-wide changes to address climate change violated what it called the “major questions doctrine.” Justice Roberts wrote that Section 111 of the Clean Air Act has rarely been used, that Congress couldn’t have possibly meant for EPA to be able to cap emissions across different polluters, and that the agency had therefore exercised “unprecedented power over American industry.”

Reality: Congress gave EPA plenty of power to do what it did—that is, come up with the “best plan” for emissions reduction. Although the plain language of the Clean Air Act is clear, these conservative, “textualist” justices didn’t care. Before this case, the major questions doctrine was not even a thing in the law. The Court essentially made up a new mandate for this case. Under the major questions doctrine, the conservatives decreed that if Congress wanted to give an agency the power to regulate something this significant, Congress should have been more specific—giving EPA the power to implement the “best plan” to regulate emissions (as it did) was not specific enough. The Court didn’t give much of a framework for deciding in the future when Congress’s authorizations of regulatory power aren’t specific enough. The justices will basically know that when they see it. The problem is that know-it-when-you-see-it is not an actual test, and it’s certainly not a conservative one. As Justice Elena Kagan noted in her dissent, the conservatives anointed themselves the czars of climate change policy. Congress can no longer work with the EPA on Congress’s own terms.

Impact: Now that SCOTUS has slapped down Congress’s regulatory authorization to EPA, what other agencies will actually be able to do is also up-for-grabs. Will the U.S. Food and Drug Administration still be allowed by this Court to inspect food for contamination? Does the Department of Homeland Security have the power to regulate under the Homeland Security Act of 2002? We won’t know for sure until this Supreme Court majority decides what questions are too major for Congress to delegate to agencies.

The problem is … it’s not Congress that ensures the smooth and safe operation of many of the goods and resources we use as American consumers. It’s federal agencies. If agencies can’t regulate, we can rest assured that a dysfunctional Congress won’t, either. The possibility of an unregulated U.S. economy is frightening enough. But even more frightening is that it could happen because 5 or 6 unelected judges say so.

Some examples of federal agencies include: Department of Agriculture (USDA), Department of Commerce (DOC), Department of Defense (DOD), Department of Education, Department of Energy (DOE), Department of Health and Human Services (HHS), Department of Homeland Security (DHS), Department of Housing and Urban Development (HUD).

Follow the facts,

Kim Wehle

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