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U.S. Supreme Court Says ‘No’ to the Administrative State

July 1, 2022

We’ve long warned that one of the greatest threats to American constitutional government is the expansion of the “administrative state”—that is, regulatory agencies that combine the powers of the executive, legislative, and judicial branches of government. Fortunately, with its ruling yesterday in West Virginia v. EPA, the U.S. Supreme Court appears poised to push back.

Regulatory agencies, which are staffed not by elected officials, but by hired bureaucrats, make laws, investigate alleged violations of the law, and punish people for violating the law—in violation of the principle of separation of powers that the founders established to protect individual freedom. And such regulatory legislating also decreases democratic accountability, because it encourages legislators to simply give away their powers and their responsibility.

President Reagan used to say that the first rule of any bureaucracy is to protect and expand the bureaucracy. So it’s no surprise that every year, Congress passes only a few hundred laws at most—whereas unelected bureaucrats impose tens of thousands of new rules that have the force of law.

But in the West Virginia v. EPA decision, the Supreme Court justices held, 6-3, that the Environmental Protection Agency’s “Clean Power Plan” exceeded the agency’s authority. That plan sought to force the nation’s economy to shift away from coal and toward natural gas and other sources. Whatever one thinks of the viability of such requirements, it was clear that the agency had no legal authority to impose this restriction. Indeed, the EPA itself said so in 2019, before changing its mind when a new president took office. When that happened, it claimed Congress gave it that authority in an obscure provision of federal law—one so obscure that, as the Court noted, the EPA has virtually never invoked it.

That’s a problem because of a rule called the “major questions doctrine.” That doctrine simply says that Congress pretty much never gives administrative agencies power to answer “major questions” without expressly saying so. If Congress wants bureaucrats to make “decisions of vast economic and political significance,” it’s typically pretty overt about that. Therefore, the Court is skeptical when the EPA claims to have found sweeping authority over the nation’s power plants based on a single phrase buried in the immensity of the Clean Air Act.

The bottom line in yesterday’s decision was that, while Congress can give agencies such power if it wants to, it has to do so explicitly. And if it doesn’t, the Court won’t allow unelected officials to claim such power by clever legal arguments. While the decision has major implications for the nation’s economy, it establishes a relatively modest legal principle—one that should have been clear from the outset: laws should be enacted by Congress, not by bureaucracies. That’s a helpful step toward reining in a section of our government that the Constitution never even mentions, and that today exercises vast control over our lives. In future cases, we hope the justices will turn to reviving the “non-delegation doctrine” that bars Congress from giving agencies lawmaking power, and to overturning the deference rules of Chevron and other cases, which allow agencies to interpret their own authority in virtually any way they want.

“The framers believed that a republic—a thing of the people—would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable ‘ministers,’” Justice Neil Gorsuch wrote in his separate opinion. “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.”

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.



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