With West Virginia v. EPA, the Supreme Court finished its latest term on a strong note. As it had with Dobbs v. Jackson Women’s Health Organization, the court here took a step toward restoring lawmaking power in its rightful place — with the people and their representatives.
The decision in West Virginia v. EPA limited the power of a government entity illegitimately exercising lawmaking: the administrative state. Bureaucrats make most of our laws these days, contrary to the constitutional system that vests such authority with Congress. Congress has partnered in this unconstitutional program, yielding its legislative power to agencies through broad, often vague delegations of regulatory authority. These bureaucrats then run with those delegations, seeking to stretch their scope as far as they can get away with.
That stretching exercise happened in this case. During President Barack Obama’s second term, the Environmental Protection Agency sought to move a significant portion of the power plant industry from coal to natural gas, then eventually to wind and solar power. It did so in order to combat climate change. This move would cost the power plants billions of dollars, with the cost to consumers predicted to come to $200 billion. It would eliminate thousands of jobs. And it likely would shut down a number of currently operating plants as well. To justify this move, the EPA fixated on an obscure, rarely used section of the Clean Air Act. The agency extended it well beyond the text’s language or past EPA practice to cover this massive regulatory shift in the power plant industry.
The 6-3 majority rejected this move. Chief Justice John Roberts’s majority opinion said that changes of this magnitude require Congressional action. This action must not come in vague phrasings or obscure legislative passages. Either Congress must make the determination itself or clearly, directly bestow that decision-making on the agency. The disputed provision of the Clean Air Act would support neither Congressional action. The majority opinion made good points regarding the need for Congress to act on these big questions. However, Justice Neil Gorsuch‘s concurrence discussed the background concepts informing the court’s decision. These points took the case out of the technical realm of environmental administrative law and into the sphere of first principles.
Gorsuch began by emphasizing our country’s status as a republic. Republics are a form of popular government, meaning rule by the people, not a group of elites. He pointed out that the founders thought this type of government was most adept at forming just laws. It would shield against special interests, which more easily could influence a small group of bureaucrats than “We, the People.”
Of course, the people do not legislate directly. The Constitution vests the national government’s legislative power with Congress, a body chosen by the people to represent them in acts of lawmaking for the nation. Gorsuch did acknowledge a role for bureaucrats. As part of the executive branch, they carried out the laws passed by Congress. This action involved making certain determinations about how to enforce statutory provisions. But significant political and economic decisions are inherently legislative in nature. They involve important choices about what to permit or to punish in the lives of persons or the work of businesses. They thus implicate the exercise of our liberty. As Gorsuch argued here and has argued elsewhere, the regulation of our liberty should reside in those officeholders we choose to exercise that important and potentially dangerous power.
Taken together, Roberts articulated the “what” and Gorsuch the “why.” Together, they restrained the runaway EPA’s attempt to change the power plant industry unilaterally. In doing so, they struck a significant blow against the administrative state. They opened the door for Congress to do its job of legislating once again.
The question is whether Congress will show similar strength — whether it will listen and learn to fulfill its Constitutional role once again.
Adam Carrington is an associate professor of politics at Hillsdale College.
