Supreme Court Rightly Restored Limits on Executive Agencies

CommentaryDuring the final weeks of the U.S. Supreme Court’s 2022 term, the justices issued some truly historic rulings. In doing so, the Court went a long way toward reestablishing itself as a coequal branch of government designed to uphold individual rights guaranteed by the Constitution against illegal government restrictions, while defending the separation of powers, laid out in the Constitution, among the three branches of the federal government and between the federal government and the states. The cases decided by the Court included the president’s power to set immigration policy, state and local governments’ discrimination against expressions of religious faith, limits on gun rights, and the federal guarantee of access to abortions, among numerous other issues the Court ruled on. As important as the rulings in this wide range of cases are, the decision in West Virginia v. EPA is arguably the most consequential and far-reaching from an economic standpoint, and in regard to the Constitution’s separation and delegation of powers. The 6–3 decision, written by Chief Justice John Roberts, says the U.S. Environmental Protection Agency’s (EPA) attempt to use an obscure provision of the Clean Air Act to usurp states’ longstanding authority to manage their electric power grids doesn’t pass constitutional muster. In its 2015 Clean Power Plan, the EPA tried to force states to close their coal plants, limit the use of natural gas, and expand wind and solar generation in order to “decarbonize” America’s power supply. The Court majority held that Congress never gave the EPA the far-reaching authority necessary to ban fossil fuel use for electricity to limit carbon dioxide emissions. The Constitution delegates to Congress alone the power to regulate interstate commerce. Unelected bureaucrats may not usurp that power by addressing major questions, meaning policies that are politically and economically significant, without clear direction from Congress. Carbon dioxide is ubiquitous, and sharply limiting it by restructuring the nation’s power grid is a major undertaking that would impose trillions of dollars in costs, affect millions of jobs, and disrupt every sector of the economy. Redesigning the nation’s power grid, as the EPA attempted to do, is a major policy undertaking that Congress didn’t delegate to the EPA “Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’” wrote Chief Justice John Roberts (pdf). “But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme …. A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” Not only did the Court’s majority find Congress never explicitly granted the EPA the kind of power it claimed, but Congress had also taken up proposals to limit carbon dioxide emissions on several occasions and chose not to enact them, Roberts noted. “At bottom, the Clean Power Plan essentially adopted a cap-and-trade scheme, or set of state cap-and-trade schemes, for carbon,” Roberts wrote. “Congress, however, has consistently rejected proposals to amend the Clean Air Act to create such a program. … It has also declined to enact similar measures, such as a carbon tax.” Justice Neil Gorsuch’s concurring opinion expanded on Roberts’s line of reasoning. Congress’s choice not to act on an issue a particular presidential administration may think is important isn’t a grant to executive agencies to undertake action on their own. According to Gorsuch, “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. In our Republic, ‘[i]t is the peculiar province of the legislature to prescribe general rules for the government of society.’” Commenting on the ruling, S.T. Karnick, a senior fellow at The Heartland Institute, said: “The Supreme Court rightly stayed in its lane in this case, as the Trump Court has increasingly been doing, restoring the separation of powers that is necessary to avert tyranny while leaving policy questions to Congress. … Regardless of one’s opinion of the policy the rule was meant to establish, the EPA had no authority to impose it.” The Court’s ruling in West Virginia v. EPA has implications far beyond the EPA’s desire to regulate greenhouse gas emissions. The Court’s reasoning also limits the ability of Cabinet departments, such as the Department of Housing and Urban Development and the Department of Transportation, as well as executive branch agencies such as the Securities and Exchange Commission and the Federal Energy Regulatory Commission to regulate gr

Supreme Court Rightly Restored Limits on Executive Agencies

Commentary

During the final weeks of the U.S. Supreme Court’s 2022 term, the justices issued some truly historic rulings. In doing so, the Court went a long way toward reestablishing itself as a coequal branch of government designed to uphold individual rights guaranteed by the Constitution against illegal government restrictions, while defending the separation of powers, laid out in the Constitution, among the three branches of the federal government and between the federal government and the states.

The cases decided by the Court included the president’s power to set immigration policy, state and local governments’ discrimination against expressions of religious faith, limits on gun rights, and the federal guarantee of access to abortions, among numerous other issues the Court ruled on.

As important as the rulings in this wide range of cases are, the decision in West Virginia v. EPA is arguably the most consequential and far-reaching from an economic standpoint, and in regard to the Constitution’s separation and delegation of powers.

The 6–3 decision, written by Chief Justice John Roberts, says the U.S. Environmental Protection Agency’s (EPA) attempt to use an obscure provision of the Clean Air Act to usurp states’ longstanding authority to manage their electric power grids doesn’t pass constitutional muster. In its 2015 Clean Power Plan, the EPA tried to force states to close their coal plants, limit the use of natural gas, and expand wind and solar generation in order to “decarbonize” America’s power supply.

The Court majority held that Congress never gave the EPA the far-reaching authority necessary to ban fossil fuel use for electricity to limit carbon dioxide emissions.

The Constitution delegates to Congress alone the power to regulate interstate commerce. Unelected bureaucrats may not usurp that power by addressing major questions, meaning policies that are politically and economically significant, without clear direction from Congress. Carbon dioxide is ubiquitous, and sharply limiting it by restructuring the nation’s power grid is a major undertaking that would impose trillions of dollars in costs, affect millions of jobs, and disrupt every sector of the economy. Redesigning the nation’s power grid, as the EPA attempted to do, is a major policy undertaking that Congress didn’t delegate to the EPA

“Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’” wrote Chief Justice John Roberts (pdf). “But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme …. A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”

Not only did the Court’s majority find Congress never explicitly granted the EPA the kind of power it claimed, but Congress had also taken up proposals to limit carbon dioxide emissions on several occasions and chose not to enact them, Roberts noted.

“At bottom, the Clean Power Plan essentially adopted a cap-and-trade scheme, or set of state cap-and-trade schemes, for carbon,” Roberts wrote. “Congress, however, has consistently rejected proposals to amend the Clean Air Act to create such a program. … It has also declined to enact similar measures, such as a carbon tax.”

Justice Neil Gorsuch’s concurring opinion expanded on Roberts’s line of reasoning. Congress’s choice not to act on an issue a particular presidential administration may think is important isn’t a grant to executive agencies to undertake action on their own.

According to Gorsuch, “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. In our Republic, ‘[i]t is the peculiar province of the legislature to prescribe general rules for the government of society.’”

Commenting on the ruling, S.T. Karnick, a senior fellow at The Heartland Institute, said: “The Supreme Court rightly stayed in its lane in this case, as the Trump Court has increasingly been doing, restoring the separation of powers that is necessary to avert tyranny while leaving policy questions to Congress. … Regardless of one’s opinion of the policy the rule was meant to establish, the EPA had no authority to impose it.”

The Court’s ruling in West Virginia v. EPA has implications far beyond the EPA’s desire to regulate greenhouse gas emissions. The Court’s reasoning also limits the ability of Cabinet departments, such as the Department of Housing and Urban Development and the Department of Transportation, as well as executive branch agencies such as the Securities and Exchange Commission and the Federal Energy Regulatory Commission to regulate greenhouse gas emissions. If the EPA, which is charged with protecting the environment, can’t restructure the economy to limit greenhouse gas emissions, neither can other departments or agencies for which protecting the environment is at best tangential to their areas of authority.

The Court’s ruling also goes beyond the issue of climate change. With this decision, the Court has effectively informed federal agencies that the separation of powers doctrine is alive and well, and Congress alone makes law. Going forward, Cabinet departments and executive agencies will have to exercise appropriate restraint and humility when regulating, strictly adhering to their mission and the letter of the laws passed by Congress. If executive agencies enact policies that involve major questions, courts will no longer necessarily defer to their judgments about whether a particular rule or policy is justified or sanctioned by Congress.

There remains much to do to halt dangerous efforts to end fossil fuel use and restructure the economy to far-left elitists’ liking. However, the Supreme Court’s decision in EPA v. West Virginia is a good start in limiting the vast overreach that executive agencies have wrought over recent decades.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.


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Sterling Burnett, Ph.D. is a senior fellow on environmental policy at The Heartland Institute, a nonpartisan, nonprofit research center headquartered in Arlington Heights, Illinois.