The Supreme Court decision in West Virginia v. EPA is being hailed by some as a “blockbuster” that put a brake on America’s regulatory state. The Court held that the Environmental Protection Agency exceeded the limits of the power that Congress delegated to it when the EPA drafted a regulation, the “Clean Power Plan.” The plan would have forced our nation’s power plants, at a substantial cost, to switch from using coal and natural gas to generate our nation’s energy to using renewables to generate that energy. Says the WSJ, the “decision . . . sharply curtails the executive branch’s authority to make policy actions on a range of issues without congressional direction.” Would that were true.
This post, Part I, looks at the Constitution and how it has been altered by the regulatory state. Part II, soon to follow, is an analysis of West Virginia v. EPA.
The reality is that the regulatory state as currently organized and operated is an obscene assault on our constitutional system. The regulatory state has been enacted by neo-Marxist progressives and supported by cowardly jurists over the past century. Chief Justice John Roberts’ decision in West Virginia allows the assault on our constitutional system to continue, even as Roberts announces an ad hoc test that does little more than nod towards the Constitution of our Founders. It is a thumb in the leaky dyke slowing down, but not holding back, a progressive takeover of this nation.
Progressive pundits have ultimately denounced the West Virginia decision on pragmatic grounds. Refusing to let the EPA dictate the energy policy of America is, says the Guardian, “a war on our future.” MSNBC says that the decision “was about whether we can avert climate change disasters” and that the “decision is a significant setback for that goal.” CNN says that the decision is “a massive blow to the planet.” These people — and indeed, it would seem to the three dissenting justices, Breyer, Kagan and Sotomayor, as well — wrongly view the Supreme Court as a political body and they don’t like their politics.
To understand how completely screwed that is, let’s look at the power of the regulatory state, through the lens of the Constitution itself. And since so few people today read the Constitution, let us begin at square one.
At our Founding, our Constitution was predicated upon:
- Separation of the three government Powers: (1) the legislature’s power to make the laws; (2) the executive’s and his agents’ power to enforce the laws; and (3) the judiciary’s power to adjudicate violations of the laws.
- Ballot Box — The most important of the “checks and balances” of the Constitution is the people’s right to directly elect their Congressmen; i.e., their Representatives and Senators who write the laws they must follow and who set the taxes they must pay. It is the most fundamental power of the people in a republic.
- Other Checks and Balances — These are a mix of some shared powers between the three branches of government to ensure that none of the branches exceeds its power and comes to dominate government as a tyranny.
These concepts of government written into our Constitution came out of centuries of bloody history and conflict that informed the political philosophies of John Locke and Baron de Montesquieu:
In the century and a half before our Founders drafted the Constitution, the British Isles were awash in tyranny, bloody rebellion, and conflict about the proper nature of government. Before settling on a Protestant constitutional monarchy with a supreme Parliament, England of the period endured three political Revolutions — the Civil War (1642-1651), the Restoration (1660), and the Glorious Revolution (1688), all followed in the 18th century by several major Jacobite Rebellions (1715 and 1745) and, finally, the American Revolution (1775-1783). During this tumultuous period, the conflicts were not merely fought on physical battlefield, but also in the realm of ideas. In that ideological battlefield, John Locke, the prolific author, political philosopher, and physician, made his mark.
Locke’s magnum opus, published circa 1688, was Two Treatises of Government in which Locke described the philosophical basis for — and the functioning of — a government of free people founded upon natural, God-given rights. He described those natural rights as the rights to life, liberty, and property, stating that government could not legitimately place burdens on those rights unless the people democratically approved of them as necessary for society to function.
As described by Locke, the cornerstone of a legitimate government was that the people had an absolute right to regularly elect representatives to government and that only those representatives would exercise the “legislative power” — the power to make laws and set taxes. Writes Locke in Chapter XI of his Second Treatise:
This legislative is not only the supreme power of the commonwealth, but sacred and unalterable in the hands where the community have once placed it: nor can any edict of any body else, in what form soever conceived, or by what power soever backed, have the force and obligation of a law, which has not its sanction from that legislative which the public has chosen and appointed: for without this the law could not have that, which is absolutely necessary to its being a law, * the consent of the society, over whom no body can have a power to make laws, but by their own consent, and by authority received from them; . . .
Later in that chapter, Locke makes another critical point:
. . . [T]he legislative neither must nor can transfer the power of making laws to anybody else, or place it any where, but where the people have entrusted it.
Lastly, in Chapter XIV, Locke observes that the legislature’s power to write laws and the power for the executive to enforce should be kept in “distinct hands.”
Charles Louis de Secondat, Baron de Montesquieu
The French jurist, Montesquieu, writing half a century after Locke, brought clarity to the need for separation of government power, something to which Locke alluded. As Montesquieu famously wrote in his magnum opus, the Spirit of Law, in 1748:
In every government there are three sorts of power: the legislative; the executive [and the judicial] . . . When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of everything, were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals. . . .
The U.S. Constitution
These concepts explained by Locke and Montesquieu go to the heart of our Constitution.
Separation of Powers:
The government’s three powers are divided. No person can serve simultaneously in two branches of government.
Article I, Sec. I of the Constitution vests “all legislative power” in Congress. Neither the President nor the Judiciary has the power to craft laws or to set taxes for our nation.
Congress has no power to adjudicate a violation of the laws it passes, a power reserved for the judiciary, nor does it have the power to enforce the laws that it passes, a power reserved for the executive. Thus, Article II Sec. I of the Constitution vests all executive power in a President. It is the President’s enumerated duty to “take Care” that the duly passed laws of Congress “be faithfully executed.” (Article II Sec. III)
Lastly, Article III, Sec. I, vests the “judicial power” of our government in “one Supreme Court.” The judiciary has no independent power to create laws, nor to enforce them, only the power to pronounce upon the laws. The Courts have also claimed for themselves a right to pronounce upon the Constitution.
Likewise, the judiciary has no role in amending our Constitution. Per Article V, that sole right belongs to the people acting through their state and federal legislatures or through a specially called Constitutional Convention.
Power of the Ballot Box
The single most important check the people have on the government lies in their power of the ballot box — i.e., their right to directly elect the members of Congress who exercise the sole power to write laws and approve taxes. Article I provides that the people in their respective districts must vote every two years to choose the person that will represent them in the House of Representatives. It provides a similar vote statewide for Senator every six years. And as the remainder of Article I makes clear, it is only those people, those representing their district and their state, who will vote on every federal law and every federal tax passed by Congress in respect of its “enumerated powers” (Article I, Sec. 8)
Other Checks and Balances
Overlapping powers, requiring agreement between government entities, to make and enforce the law appear throughout the Constitution. For but one example, the President has the sole power to nominate judges, but the Senate has the sole power to confirm or reject any such nominee. For this discussion though, at issue are those three checks and balances that pertain to legislation.
Article I Sec. VII of the Constitution describes how legislation is to be enacted. Our Constitution creates two separate government bodies to comprise our legislature, the House of Representatives and the Senate. No legislation may pass into law without those two bodies agreeing to the text of the legislation, then separately voting (a majority in the House, Sixty votes in the Senate in respect to the filibuster) to approve the legislation. The President then has a limited role in legislation. The President cannot alter or amend legislation that Congress sends him; he must, instead, either veto or approve it. If the President approves of the legislation, he signs it into law. If the President vetoes the legislation, it then returns to Congress. Both Houses, acting in concert, may still enact the legislation into law if two-thirds of the members of both Houses agree.
The Regulatory State as a Substitute for Congress and the Judiciary:
Our nation did not have the toxin of a regulatory state grafted on top of our Republic on its first day of existence, nor its first birthday, nor even on its 100th birthday. It wasn’t until the rise of the neo-Marxist Progressive movement in American politics at the turn of the 20th century our elected representatives’ law-making authority began to be replaced by the executive branch’s rule-making authority through agencies operating outside of the Constitution.
This began under Woodrow Wilson, a progressive who made no effort to hide his disdain for our Constitution, nor for the democratic processes built into it.
Wilson was convinced, in no small measure by his admiration for prominent late 19th century German social scientists, that “modern government” should be guided by administrative agency “experts” with specialized knowledge beyond the ken of ordinary Americans — and that these experts shouldn’t be unduly constrained by ordinary notions of democratic rule or constitutional constraints.
So, in his seminal 1887 article, “The Study of Administration,” published in the same year that the first modern regulatory commission, the Interstate Commerce Commission, was created, Wilson explained that he wanted to counter “the error of trying to do too much by vote.” Hence, he admonished that “self-government does not consist in having a hand in everything,” while pleading for “administrative elasticity and discretion” free from checks and balances.
Wilson’s vision has, over a century, become this nation’s nightmare, completely redoing our nation’s contract between government and the governed, moving us far to the progressive left without a single vote of Congress or the citizens of this nation, and all accomplished without any Amendment of our Constitution. Though it is beyond the scope of this post, if you wish to learn the history of the Administrative State, see here, or in more detail, see Jonah Goldberg’s book, Liberal Fascism.
Suffice to say, all three branches of government are complicit in the rise of the administrative state. The Executive has shown itself happy to aggregate power and to use the regulatory state as an end around Congress. Congress is too divided and, frankly, all too happy to leave all the hard decisions of governing to the regulators. (They should read Cromwell’s 1653 speech liquidating the Rump Parliament.) And lastly, since FDR’s court-packing scheme of the 1930’s, the Supreme Court has proved itself to be utterly feckless and unwilling to stop this utterly unconstitutional travesty.
Bottom line, the modern regulatory state is the very definition of systemic progressivism unconstitutionally fouling our nation. The agencies that make up the regulatory bodies are all part of the executive branch, violating the separation of powers. The regulations these agencies produce come with the force of law, thus violating Article I, Section I of the Constitution, which says that only Congress may legislate. More importantly, though, the regulations that these agencies produce automatically pass into law without a single vote of Congress, thus bypassing the people’s right to vote for those who make the laws to which they are subject. And lastly, many of these regulatory agencies have their own judiciary outside of Article III Courts.
The modern administrative state is now far more important than Congress as a source of law and progressives regularly use it to enact laws that could not possibly — or have actually been unable — to pass through Congress. As I wrote over a decade ago:
In our nation today, individuals, businesses, and private and public organizations can be fined, sanctioned, forced to close, and jailed for violating federal regulations that have never been subject to a vote by our elected representatives, nor signed into law by the President. The genius of our Constitutional system of checks and balances is wholly obliterated in the tyranny of our modern the regulatory bureaucracy. . . .
The most important consideration as regards these regulations is that, almost to a virtual certainty, none of the major regulations promulgated under Obama could ever have passed Congress to become law – even during the first two years of Obama’s administration when Democrats controlled Congress. A partial list of the extra-constitutional regulations and executive actions of Obama’s regulatory agencies includes:
– The EPA’s decision to regulate carbon dioxide as a pollutant, despite lack of any Congressional authority and in the face of Congress’s refusal to pass the proposed energy bill which would in fact have authorized such regulation. . . .
A very long list followed that first EPA example, but it is the first example that I referenced in 2012 that would soon be implicated in the EPA’s Clean Power Plan at issue in West Virginia v. EPA.