SCOTUS delivers another blow to the administrative state
Supreme Court clips Biden’s climate-change wings
On the danger of bureaucratic legislative power: “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. 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. Stability would be lost, with vast numbers of laws changing with every new presidential administration.” — justice Neil Gorsuch
Last week, on the heels of the U.S. Supreme Court’s decision supporting Second Amendment rights, religious liberty, and the reversal of Roe v Wade, came yet another monumental court decision, this time siding with the state of West Virginia in a battle over carbon emissions with the federal Environmental Protection Agency.
In West Virginia v EPA, the high court not only dealt a blow to President Joe Biden’s climate agenda but rendered a ruling that will have far-reaching implications for the ability of executive federal agencies to engage in autonomous, that is to say totalitarian, rule-making. For decades the administrative state, aka the bureaucratic collectivist state, has run wild under Democratic and Republican administrations alike, whittling away at constitutional freedoms, not to mention at the authority of our elected representatives to legislate this nation’s laws, and, until the moment Donald Trump was elected, had all but wrapped up the absolute centrality of its political power.
Since that election, the tide has turned, well, maybe the better way to say it is, the tide has come to a near standstill. Trump valiantly fought the administrative state, with some success, and he put three justices on the Supreme Court who have carried on the battle, enabling a new majority that has delivered significant court decisions that clip the wings of the nation’s governing bureaucracies ever so slightly. The latest decision, delivered by the court last Friday in West Virginia v EPA, is the most significant yet.
Before we look at that decision, however, it should be noted how critical to the preservation of the constitutional republic the new Supreme Court majority is. To wit, except for Trump, every president since Ronald Reagan, Democratic and Republican alike, fed and nurtured the collectivist enterprise, and, even though the Carter-Reagan years were ones of general restraint, the bureaucracy still grew in power significantly. In 1975, there were 71,224 pages of regulations in the Code of Federal Regulations; by 2019, 185,984 pages (to be sure, this is only a general way to look at federal regulations because minor rules can take up more pages than major ones but still a good overall indicator of the scope of regulatory growth). Patrick McLaughlin of the Mercatus Center proposed a more absolute measurement, analyzing regulatory words that create “binding, legal obligations either to do something or not to do something, such as ‘shall,’ ‘must,’ and ‘may not.’” In other words, words that assert government control. By 2016, there were more than 1.1 million of them. The word “shall” alone appeared more than 512,000 times—making it one of the most commonly used words. The number of controlling restrictions grew by 31 percent between 1997 and 2016, when Trump was elected. Trump disrupted the narrative but could not reverse it, and now Biden has ramped up the bureaucracies once more.
But it’s not just the executive branch showering power and authority on the bureaucratic state. Congress, too, has willingly abdicated its constitutional responsibilities, delegating ever more power to administrative agencies—in their view, better to let the agencies enact something and take the blame rather than to do so themselves. The problem grew so bad that Utah Sen. Mike Lee started the Article I Initiative to restore Congress’s rightful authority. Here’s how he put it:
Congress, not the courts, bears primary responsibility for abdicating lawmaking responsibility. After Chadha and Chevron, we could have found new ways to exercise control over agencies. But over the years, we’ve chosen to outsource our constitutional prerogatives, because doing so is politically expedient.
And, of course, the courts, particularly in Chevron, have done their part to create a bureaucratic collectivist state, awarding federal agencies “due deference” in the interpretations of federal statutes. In Chevron, the court determined that judges should defer to the bureaucracies if the law isn’t clear and the agency’s interpretation is reasonable. So, if both the agency and the challenger have reasonable interpretations, the courts sit it out and it’s checkmate in favor of the administrative state. Never mind that in the seminal early decision in Marbury v Madison, the court determined that it was “emphatically the province and duty of the judicial department to say what the law is.”
Perversely, in recent times, our courts, our executive branch, and Congress have all determined that it is emphatically the province and duty of unelected administrative bureaucrats to say what the law is, with virtually no checks and balances. No wonder we are so screwed up. However, conservatives on the bench have been chipping away at Chevron for a while, and, though West Virginia v. EPA did not finally end Chevron, it was the biggest chip yet, a gouge actually, so let’s take a look.
The sword thrust of the libertarian …