West Virginia v. EPA is an intriguing decision in a term with many important Supreme Court decisions because it limits the authority of unelected bureaucrats in the administrative state. This decision has far-reaching implications for the success or failure of the entire American political system, not just the issue at hand.
The Clean Air Act, under which the EPA plans and implements new regulations on the power industry in the name of preventing climate change, was originally passed in 1963 and last amended in 1990, long before “climate change” became an accepted political crusade. The original intent of the Clean Air Act was to control the release of harmful chemicals and particles into the atmosphere, like lead and large particulate matter, which are known to cause illness and premature death. West Virginia, which has a clear vested interest in the coal mining industry’s longevity, argued that the EPA’s regulation of greenhouse gas emissions constitutes an unlawful attempt to restructure the entire energy industry, going beyond what was authorised in any version of the Clean Air Act.
Chief Justice John Roberts wrote the majority opinion for the Court, which sided with West Virginia. He referred to the “major questions doctrine,” which states that Congress must “speak with particular clarity when it authorises executive agencies to address major political and economic questions.” That is to say, Congress can’t just give the EPA carte blanche when it comes to making decisions; rather, it must be careful to limit the scope of the agency’s authority.
In his concurring opinion, Justice Neil Gorsuch wrote as follows:
It’s natural for the executive branch to want to take matters into their own hands when Congress moves slowly to address pressing issues. However, agencies cannot replace laws passed by elected officials with rules written on paper or discussed over the phone, as this would violate the Constitution.
The term “pen-and-phone” was coined to describe former President Obama’s threat to use executive power to enact his preferred solution if Congress failed to pass the legislation he wanted. It was a familiar threat from any modern president: using the overly broad delegation of power to executive agencies to usurp the legislative powers of Congress.
The Supreme Court’s decision to impose restrictions on this obvious overreach is welcome. If Congress weren’t so eager to abdicate its authority, however, presidents wouldn’t be able to usurp it. That points to a more systemic issue.
Faulty Procedures?
An interesting parallel is drawn by commentator David French between the EPA case and another recent Supreme Court ruling that seems unrelated: Biden v. Texas, which deals with immigration law.
What is the connection between these incidents? They both originated from Congress’s failure to address pressing issues. In the case of the EPA, the executive branch was responding to valid concerns about climate change, but it is not supposed to legislate. In the “remain in Mexico” case, the president was unable to enforce Congress’s mandate that all immigrants who are not “clearly and beyond a reasonable doubt” entitled to entry “shall be detained” due to a lack of funding for immigration detention facilities.
Congress has been debating and has thus far implemented neither a more open nor a more restrictive immigration policy. Therefore, the U.S. government cannot legally admit large numbers of migrants, and it lacks the resources to detain them all in a humane manner. This has led the executive branch to exercise the legal discretion it has in order to address the issue. According to French, this proves the Constitution is failing.
What’s wrong is that Congress isn’t as powerful as it should be. It’s at its most dysfunctional right now. It’s broken in part because the Founding Fathers underestimated the influence of partisanship over official accountability.
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The dysfunction in Congress has a domino effect on the rest of the government, which is bad enough. The presidency and the judiciary each take on too much power, raising the stakes of presidential elections and judicial confirmation hearings.
According to French, the Founders should have thought about the possibility of stalemate and the inability to act on major issues, and now action must be taken. However, I believe the Founders knew all too well, from their own experiences, the dangers of inaction on major issues. They are the same people who, throughout the early years of the republic, repeatedly put off dealing with slavery. They expected the next generation to solve the problem, but instead that generation became more adamant in their positions and more divided, leading to civil war among their descendants.
Have we then witnessed a violation of the Constitution? True, we weren’t. There was an irreconcilable schism among the people over a core value, and no constitution could unite them.
When there is widespread consensus on a topic, the current constitutional system serves its purpose admirably. There is a great deal of leeway for action to be taken if it has widespread support from the population. However, it does not let a small group or even a majority pass whatever policy it wants on the grounds that “something must be done.” Also indicative of the system’s success is the fact that it motivates politicians, activists, and concerned citizens to rally widespread support by appealing to similar values and interests.
If the American people are not fully persuaded that climate change is a real problem and that the proposed solutions are the right ones, then the political system in the United States should prevent us from doing anything about it. And Americans should be glad that the system prevents a powerful leader in Washington from forcing his own solution on immigration, as doing so would prevent a bad solution in addition to a good one.
David French is correct, however, that the Founders erred in assuming Congress would guard its power jealously against encroachment by the other branches. The Consent of the Governed In the end, Congress showed itself to be eager to hand it over. Who could be against “clean air”?—but then leave to unelected bureaucrats the controversial and unpopular job of deciding what those laws actually do. This is how vague, overly-powerful bills get passed.
This process reached its nadir in the ignoble and, God willing, brief political career of Madison Cawthorn (R-North Carolina), whose only lasting claim to fame (if any) will be his boast that, when assembling his congressional staff, he focused on “comms” (i.e., messaging to the public) rather than on the staff’s ability to draught or understand legislation. The ideal representative of today is someone who spends all their time complaining about what the executive and judicial branches are doing wrong and not enough time passing laws that tell them what to do.
The irony is not lost on the right. The core belief of the conservative legal movement is that Congress, not the courts, should resolve all the “major questions” facing the country. In practise, however, conservatives in Congress have avoided confronting tough issues like immigration, spending, entitlements, and regulation. They won a majority in Congress but failed to repeal Obamacare despite seven years of campaigning on the promise to do so; doing so would have required them to propose an alternative healthcare system.
That’s how things work, and in the grand scheme of things, it’s not a flaw but rather a feature. Members of Congress truly do represent our interests. They are a reflection of the real divisions amongst Americans insofar as they do nothing to address pressing issues like immigration or global warming. After that, those who want Congress to take action will have to win over the public at large, not just their own constituency.
That is the intended operation. After all, the consent of the governed is what holds the American political system together. A counterexample to the all-comms representative would be the Democratic congressional aides who are protesting against their own leadership to pass a climate change bill as if they are the constituents rather than the actual voters out in their states and districts. Legislative aides urging the president to bypass Congress and use emergency powers is another possible example.
It is clear from these events that the United States’ political system needs to be reoriented toward debate and persuasion. What’s wrong with the American political system, and the root of its rampant partisanship, is that both major parties have largely stopped treating politics as a contest of ideas and instead view it as a struggle for power. But if you give up on the battle of ideas, you will quickly find yourself on the back foot in the American political system.
These ongoing conflicts over executive authority highlight the importance of rediscovering the skill of winning over voters rather than trying to circumvent democracy through means such as judicial decisions, executive agencies, or emergency powers.
