West Virginia v. EPA Part III: Roberts Puts A Band-Aid On The Regulatory State

The decision in West Virginia v. EPA, which saw the five more-or-less originalist judges on the Supreme Court (Justices Thomas, Alito, Bryant, Kavanaugh, and Gorsuch) join Chief Justice Roberts to uphold the extra-constitutional administrative state, is gut-wrenching.  It will not even be a speed bump on the unconstitutional march of the regulatory state.

And coming on the heels of what has been a tour de force of originalist jurisprudence (Dobbs, Bruen, Kennedy) seriously challenging a century of progressive judicial activism, it is disheartening.  A century ago, a cowed Supreme Court gave its stamp of approval to the unconstitutional regulatory state — and the Supreme Court maintains that studied cowardice today as it leaves in place a gross distortion of our Constitution and a primary means by which progressives force their ideology into the systems of our government.

As I wrote in Part I, and as the above makes clear, the regulatory state is a progressive creation that is an obscene assault on our Constitution.  It destroys the most fundamental right of the citizens — the people’s control over the legislative power through the ballot box — and it destroys the checks and balances between the House, the Senate, and the President.  And as I wrote in Part II, the claim that “climate change” is human-caused, imminent, and catastrophic is the deeply suspect conclusion founded on four decades of Lysenkoism and fraud masquerading as “science.”

The regulatory state intersected with the climate change juggernaut in the Obama EPA “Clean Power Plan” of 2015, which is the subject of the case West Virginia v. EPA.  The Supreme Court could have neutered the regulatory state with its decision and reinstated the system set forth in our Constitution, returning all legislative power to Congress.  Instead, the Supreme Court blinked.  In an act of cowardice, the Court prescribed an ad hoc test that, in the long run, holds no realistic promise of tempering the progressive march towards reshaping our nation.  Indeed, as will be discussed, the progressives in our government have made that eminently clear following the Court’s decision.

This from Justice Gorsuch in his concurrence is a good place to begin an analysis of West Virginia v. EPA. Gorsuch stresses the evils of the regulatory state as if it were not already in existence and twisting the fabric of our nation:

But by vesting the lawmaking power in the people’s elected representatives, the Constitution sought to ensure “not only that all power [w]ould be derived from the people,” but also “that those [e]ntrusted with it should be kept in dependence on the people.” Id., No. 37, at 227 (J. Madison). The Constitution, too, placed its trust not in the hands of “a few, but [in] a number of hands,” ibid., so that those who make our laws would better reflect the diversity of the people they represent and have an “immediate dependence on, and an intimate sympathy with, the people.” Id., No. 52, at 327 (J. Madison). Today, some might describe the Constitution as having designed the federal lawmaking process to capture the wisdom of the masses. See P. Hamburger, Is Administrative Law Unlawful? 502–503 (2014). Admittedly, lawmaking under our Constitution can be difficult. But that is nothing particular to our time nor any accident. The framers believed that the power to make new laws regulating private conduct was a grave one that could, if not properly checked, pose a serious threat to individual liberty. See The Federalist No. 48, at 309–312 (J. Madison); see also id., No. 73, at 441–442 (A. Hamilton). As a result,  the framers deliberately sought to make lawmaking difficult by insisting that two houses of Congress must agree to any new law and the President must concur or a legislative supermajority must override his veto.

The difficulty of the design sought to serve other ends too. By effectively requiring a broad consensus to pass legislation, the Constitution sought to ensure that any new laws would enjoy wide social acceptance, profit from input by an array of different perspectives during their consideration, and thanks to all this prove stable over time. See id., No. 10, at 82–84 (J. Madison). The need for compromise inherent in this design also sought to protect minorities by ensuring that their votes would often decide the fate of proposed legislation—allowing them to wield real power alongside the majority. See id., No. 51, at 322–324 (J. Madison). . . .

Permitting Congress to divest its legislative power to the Executive Branch would “dash [this] whole scheme.” . . . Legislation would risk becoming nothing more than the will of the current President, or, worse yet, the will of unelected officials barely responsive to him. “[T]he president may not have the time or willingness to review [agency] decisions”.  In a world like that, agencies could churn out new laws more or less at whim. Intrusions on liberty would not be difficult and rare, but easy and profuse. See The Federalist No. 47, at 303 (J. Madison); id., No. 62, at 378 (J. Madison). Stability would be lost, with vast numbers of laws changing with every new presidential administration. Rather than embody a wide social consensus and input from minority voices, laws would more often bear the support only of the party currently in power. Powerful special interests, which are sometimes “uniquely” able to influence the agendas of administrative agencies, would flourish while others would be left to ever-shifting winds. . . .

And yet, the Supreme Court did next to nothing in West Virginia v. EPA to disturb what has been a century-long, unconstitutional delegation of legislative authority to executive-body regulatory agencies.  Indeed, the Supreme Court in West Virginia v. EPA doesn’t disturb a single dot in one of the worst Supreme Court since Dred Scott, the 1980 holding in Chevron v. NRDC. In that case, the Supreme Court held that courts should defer to regulatory bureaucracy decisions interpreting the statutes that they administer unless there is clear congressional guidance to the contrary.  It was carte blanche for the regulatory agencies to take over the legislative function of a feckless congressional body all too happy not to be forced into making any hard or unpopular decisions.

West Virginia v. EPA concerned the Clean Power Plan, which the Daily Caller in 2015:

The EPA’s rule limiting carbon dioxide emissions from power plants is expected to cost billions of dollars per year and hundreds of thousands of jobs, according to recent reports.

President Obama unveiled the Clean Power Plan (CPP) Monday which aims to cut CO2 emissions from power plants 32 percent below 2005 levels by 2030 and limit emissions from newly built plants. Obama says the rule is key to galvanizing global support for a United Nations climate agreement, but it will come at a huge cost to the U.S. economy.

“The final plan will shutter 66 power plants and eliminate 125,800 jobs in the coal industry,” according to Sam Batkins, director of regulatory policy at the right-leaning American Action Forum. “Perhaps more alarming, using the 2012 baseline for coal generation and projections for 2030 output, the industry could shrink by 48 percent.”

The irony is that all of the economic pain that would be caused in this nation by the Clean Power Plan was not going to have any appreciable effect on global concentrations of CO2.  Indeed, using the EPA’s own data, the Clean Power Plan was only expected to “avert about 0.01 degrees Celsius of projected global warming.”  Suffice it to say, the real purpose of the Clean Power Plan was not as advertised.   Although the plan would have thoroughly reworked the American economy, it was not based on any vote of Congress.  On the contrary, much of the plan was lifted out of the Waxman-Markey Bill that a Democrat supermajority Congress had considered and rejected in 2009,
A number of states immediately brought suit to stop the Clean Power Plan.  The procedural history of the case became convoluted, with the decision of the Court delayed for seven years.


The Majority Opinion:

Justice Roberts began by examining the Clean Air Act that the EPA is charged with enforcing.  The Act long predated the “climate change” movement; its provisions addressing power plants were designed, in a series of three provisions, to address local problems of actual air pollution.  Within the “New Source Performance Standards” program that was part of the act, three provisions allowed the EPA to set standards for emissions of listed pollutants that were based on what was achievable in consideration of cost and modern technology applicable to the source.

Rather than continue with that system, the EPA, in their Clean Power Plan of 2015, relied on a provision of the “New Source Performance Standards” program that the EPA had invoked only a handful of times since it was written in 1970.  It was a gap-filler provision.  Yet the EPA relied on it to claim a newly-found power to establish standards for the release of greenhouse gasses that coal plants could not meet under any conditions, and that likely would be difficult for oil- and gas-fired plants.  This was, the EPA fully admitted, intended to force states to switch their energy generation to renewable sources.

Roberts announced what can loosely be called a test for regulation, focusing on the degree to which the court believes the proposed regulation is politically or economically significant to the nation.:

Where the statute at issue is one that confers authority upon an administrative agency, that inquiry must be “shaped, at least in some measure, by the nature of the question presented”—whether Congress in fact meant to confer the power the agency has asserted. . . .

In the ordinary case, that context has no great effect on the appropriate analysis. Nonetheless, our precedent teaches that there are “extraordinary cases” that call for a different approach—cases in which the “history and the breadth of the authority that [the agency] has asserted,” and the “economic and political significance” of that assertion, provide a “reason to hesitate before concluding that Congress” meant to confer such authority. Id., at 159–160. . . Formally baptizing this the “major questions doctrine”.

Formally baptizing this the “major questions doctrine,” Roberts wrote that the mere fact that the claimed power of the regulatory agency had a “colorable basis” in the text of the statute at issue was not dispositive.  A court must look at the political and economic consequences for the nation.

Moreover, in analyzing the Clean Power Act, Roberts amazingly found that the fact that Congress had considered but rejected the elements of the Clean Power Plan to be simply one consideration in an overall holistic analysis.  Shockingly, Roberts did not find this obvious statement of the will of Congress not to be dispositive of whether the regulatory body, exercising the delegated legislative power of Congress, exceeded its authority.

In conclusion, Roberts wrote:

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.” New York v. United States, 505 U. S. 144, 187 (1992). But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.

Frankly, this decision is by itself important but, within the mosaic of the regulatory state, it is a joke.  Roberts announces an ad hoc test that activist judges will ignore at will.  It does nothing to restore the Constitutional balance of Article I, Section 1, that grants the legislative power of this nation solely to Congress, with members of Congress under the direct control of their constituents through the ballot box, and all of whose decisions are subject to the checks and balances that exist between the three branches of government.

So, for example, when HHS drafts its next regulation requiring all individuals, whether or not practicing Christians, to fund abortion pills, will the major questions doctrine apply?  By the major questions doctrine’s very terms, the doctrine will not apply if the regulation’s proponents can argue that the statute giving authority to the HHS to draft such regulation is within the guidance that Congress provided. It does not matter if the regulation HHS drafts fundamentally changes the very foundation of this nation — and it would.  In his famous letter to the Danbury Baptists, Jefferson wrote that our Constitution was designed such that Christian men of conscience had “no natural right in opposition to his social duties” imposed by federal law.  If Christians are forced into funding abortions in opposition to their religious conscience, then that fundamentally alters our nation.

The question in the paragraph above is more than hypothetical.  HHS regulations mandating all employers fund abortion pills is what happened under Obamacare.  Only after years of litigation did the Supreme Court make even a partial correction of this issue.  And we see it in other contexts today with the Biden administration. For example, tens of thousands of soldiers are being forced from service because they object on religious grounds to the Covid vaccine developed from fetal stem cells of aborted fetuses.  The Supreme Court has refused to step in to protect these soldiers, even though what the Biden administration is doing is a criminal violation of the constitutional right these soldiers have to the free exercise of their religion.

So, to sum up, Roberts has announced a test that is supposed to limit the ever-expanding claim to power to the regulatory bureaucracy while leaving that unconstitutional bureaucracy in place.  It is a cruel joke.

Gorsuch Concurrence

Gorsuch, for his part, tried to add some form and substance to the ad hoc test of Roberts:

First, this Court has indicated that the [major questions] doctrine applies when an agency claims the power to resolve a matter of great “political significance,” or end an “earnest and profound debate across the country,” . .

Second, this Court has said that an agency must point to clear congressional authorization when it seeks to regulate “‘a significant portion of the American economy,’” . . . or require “billions of dollars in spending” by private persons or entities. . . . .        

Third, this Court has said that the major questions doctrine may apply when an agency seeks to “intrud[e] into an area that is the particular domain of state law.” . . .

While Gorsuch provides a more structured analytical framework, he does not provide any bright-line standard to the structures.  Thus the test remains ad hoc and will be used sparingly if at all by progressive justices.  Those justices will surely find a way to ignore it.

Kagan, along with Breyer and Sotomayor, dissenting

Kagan’s dissent follows a familiar pattern for the three progressive court justices.  She begins her dissent by setting forth all of the supposed ills of climate change.  She concludes this preamble with the claim that, “by the end of this century, climate change could be the cause of ‘4.6 million excess yearly deaths.'”  Later, she justifies the EPA’s unilateral action on the ground that the EPA is acting, with the Clean Power Plan, “to address the greatest environmental challenge of our time.”

Leaving aside the truth or falsity of those claims, what is not arguable is that they are purely legislative considerations, not judicial.  At issue is not whether a complete overhaul of our nation’s energy sector is a good idea in light of climate change, it is whether regulatory bureaucracies can claim powers to fundamentally alter our nation without an affirmative vote of Congress.  And yet Kagan makes eminently clear that she feels both the Supreme Court and the regulatory agencies should have the power to legislate, the limitation of that power to Congress in Article I, Section 1 of the Constitution be damned.

Kagan attacks the “major question doctrine” as a newly announced test.  Yes, it arguably is.  Kagan further claims that the statute at issue upon which the EPA relied to draft the Clean Power Plan is written so ambiguously that it could be read to grant the vast power the EPA claims.  And again, yes, it arguably is.  Lastly, Kagan points out that, even assuming “that a policy decision, like this one, is a matter of significant “economic and political magnitude . . . Congress delegates such decisions to agencies all the time— and often via broadly framed provisions . . .”  And again, yes, that is, without a doubt, true.  It has been true for a century of regulatory agencies legislating in place of Congress, though there has been no Constitutional amendment to allow for it.

Bottom line, Kagan’s dissent accurately points out the weakness and hypocrisy of the majority opinion.  Her solution, though, of allowing virtually unlimited power to regulatory agencies, is at complete odds with the Constitution.  Unfortunately, the majority opinion is only a little less at odds with the Constitution.  Any decision that allows the regulatory bureaucracy to stand is a travesty, and trying to put a restraint on just the worst abuses will not work.

The Response To The Court’s Decision

After the Court issued its decision in West Virginia v. EPA, a professor wrote at the Wall St. J.:

The Environmental Protection Agency had its way with both the Clean Air Act and the U.S. Constitution for decades. The Supreme Court’s decision Thursday in West Virginia v. EPA may be the beginning of the end of this baleful era. It closes the window on sweeping climate action by federal agencies without a congressional mandate.

This is what wishful thinking looks like.  Here is the reality:

According to a new report in The New York Times, the Biden administration isn’t going to let a Supreme Court loss slow down its bureaucratic machinery that’s been focused on the so-called “transition” from cheap and reliable sources of energy to so-called “green” alternatives that are expensive, unreliable, and vastly untested on a scale as large as the United States.

The insiders and industry experts that spoke with The Times explained that “the Biden administration will have to enact ‘layers and layers’ of new policies rather than rely on a single sweeping program” and “the E.P.A. has been ‘putting together a menu of three or four different approaches.'”

As the Manhattan Contrarian observed in the wake of West Virginia v. EPA, the Administrative State Moves to Show Who’s Boss On Energy Policy.  The Supreme Court decision is already having the opposite of its intended effect. with regulators are planning to redouble their efforts to rework our energy sector:

That’s not how these bureaucracies work. And such is most particularly the case with regard to regulators of the energy sector, sometimes known as “climate change” arena, where the bureaucrats are burning with a righteous religious fervor that they believe entitles them to cast the evil sinners into the fires of hell.

And thus, contemporaneous with the Supreme Court’s decision, several agencies promptly doubled down on efforts to strangle the oil and gas industries with regulatory restrictions, essentially daring the courts or anyone else to stop them. Thousands of pages of statutes give them thousands of arguments to claim they have the “clear congressional authorization,” any one of which arguments might stick. They are now out to show who’s boss.

The “major questions doctrine” is a bad joke.  It is not a decision grounded in originalism.  The only originalist decision possible would neuter the regulatory bureaucracy and restore Article I, Section I of the Constitution:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.