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Editor's Note: Happy 4th of July weekend! We’re going to take some time to wish America a happy birthday; we’ll be back in full swing Tuesday morning. Pro tip if you’re visiting family in the coming days: mentioning The Flip Side is a great way to defuse tense political debates! ;)
“The Supreme Court on Thursday truncated the Environmental Protection Agency’s power to regulate greenhouse gases… [Chief Justice John] Roberts wrote that the EPA’s effort to regulate greenhouse gases by making industry-wide changes violated the ‘major-questions’ doctrine – the idea that if Congress wants to give an administrative agency the power to make ‘decisions of vast economic and political significance,’ it must say so clearly.” SCOTUSblog
The left opposes the decision, arguing that it is inconsistent with both the plain text of the law and the Court’s longstanding approach to Congressional delegation.
“Roberts makes no serious effort to defend his assertion that EPA exercised a ‘power beyond what Congress could reasonably be understood to have granted.’ Congress, in fact, designed the Clean Air Act to be an economically transformative statute that would force the development of new technologies to address air pollution. When Congress gave the EPA authority to establish the ‘best system of emission reduction’ for stationary sources of pollution like power plants, it presumably included the word ‘system’ for a reason…
“Moreover, when Congress wrote the Administrative Procedure Act—the fundamental charter for our regulatory state—legislators repeatedly stated that agencies could decide ‘important’ decisions, so long as they did so through fair procedures. That’s what the EPA did in this case, not only by going through the public comment process but also by holding extensive public hearings and by giving states a significant role in how to implement the [Clean Power Plan]’s provisions.”
Blake Emerson, Slate
“Under [the ‘major questions’] doctrine, the Court explained in a 2014 opinion, ‘we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’’ Thus, if a majority of the Court deems a regulation to be too significant, it will strike it down unless Congress very explicitly authorized that particular regulation. This doctrine comes from nowhere. Last week, the Court said that abortion is unprotected by the Constitution — leaning heavily on the fact that abortion is not mentioned in the Constitution. But [the] major questions doctrine is also mentioned nowhere in the Constitution. Nor can it be found in any statute. The justices made it up…
“Roberts faults the EPA for issuing a novel kind of regulation pursuant to a ‘long-extant’ statute that had not previously been used to justify similar actions. He claims that the EPA relied on an ‘ancillary provision’ of the Clean Air Act, rather than a more central provision of that law…
“[But] Roberts admits that the major questions doctrine can nuke a regulation even when there is a ‘colorable textual basis’ supporting that regulation — that is, when the actual words of a federal law could support the action taken by a federal agency. The bottom line after the West Virginia decision is that agencies may still exercise regulatory authority, but only subject to a judicial veto. The Supreme Court has effectively placed itself at the head of much of the executive branch of the federal government.”
Ian Millhiser, Vox
“When Congress passes a law, it cannot possibly lay out every single step by which that law is to be implemented or every single circumstance in which it might be applied. The executive branch is responsible for enforcing the statutes that Congress writes, and it does so through an exhaustive rulemaking process that involves input from experts, stakeholders and the public…
“Yes, it’s all very bureaucratic. Try meeting the needs of a nation of 332 million people without a bureaucracy. But reality has little or no effect on the imprudent jurisprudence of Chief Justice John G. Roberts Jr.”
Eugene Robinson, Washington Post
The right supports the decision, arguing that sweeping policy changes should be made by Congress rather than unelected bureaucrats.
The right supports the decision, arguing that sweeping policy changes should be made by Congress rather than unelected bureaucrats.
“Roberts noted that what the EPA proposed was nothing less than, on its own authority, to require ‘capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal.’ Roberts wrote that even if such a policy may well be ‘a sensible ‘solution to the crisis of the day,’’ it nonetheless is ‘not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme’ — and certainly not by using the extremely vague and little-used clause of the Clean Air Act that the EPA had dubiously cited as the source of its new power…
“The elected representatives of the public absolutely have not decided that the costs of a nationwide abandonment of coal use are worth the alleged benefits of alternative fuels. Our constitutional system is designed to ensure that elected legislators, not presidential appointees and the bureaucracies beneath them, decide such policy questions. Especially at a time when skyrocketing energy costs are seriously threatening family budgets, we should all appreciate why only Congress, not some deputy agency chief, should decide what balance of energy policies is the best.”
Quin Hillyer, Washington Examiner
“The minority of the court's justices showed little concern for finding specific congressional authorization. Instead, they began their dissent by explaining that they think climate change is a really big deal, as if that was a relevant rebuttal to the constitutional rule that the executive cannot make laws. The minority took the words Congress wrote about what the EPA could force a power plant to do —adopt the ‘best system’ for reducing emissions at its own plant — and said those words basically give the EPA the power to create (to legislate) whatever the EPA believes is the ‘best system of emission reductions’ for greenhouse gases in the whole area power grid…
“The liberals' novel reading of the statute has no limits. Cratering the economy or curbing the population are the ‘best system of emission reductions,’ some argue. Under the court’s reading, Congress has delegated to the EPA the power to take steps that would curb birthrates, set immigration policy, or ruin our economy.”
Timothy P. Carney, Washington Examiner
“The dissenters bemoan that Congress lacks the expertise to regulate technical subjects such as climate change. In a footnote, Justice Gorsuch devilishly cites Woodrow Wilson, a progressive critic of the Constitution and a founder of the administrative state, as believing in government by experts because the people are fools. The real beef of the dissenters is that the Constitution purposefully makes it hard to pass laws…
“Contrary to their critics, the Justices aren’t blocking climate regulation. They are merely saying that the decision on whether and how to do it rests with Congress. As with many other decisions this term, the Court is telling Congress and the executive to stay in their proper constitutional lane. Congress must give clear commands before the executive branch can write costly rules that tell Americans how to live their lives. The Court is reinvigorating the separation of powers and enhancing liberty.”
Editorial Board, Wall Street Journal
40 Times Foxes Were Caught Being The Cutest.
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