Dismantling the Administrative State

Last month’s Supreme Court ruling in West Virginia v EPA curtailing the authority of the Environmental Protection Agency (EPA) to regulate carbon emissions is a body blow to government’s ability to balance unrestrained corporate power, a libertarian strike in the decades-long conservative war on progressive government.

The so-called “Administrative State” is the libertarian bogeyman that would take away our freedom.  In fact, the Administrative State is the Food and Drug Administration (FDA) when it issues regulations to ensure the safety of food, medicines and other consumer products.  The Administrative State is the Occupational Safety and Health Administration (OSHA) when it regulates business to protect workers from injuries.  The Administrative State is the Securities and Exchange Commission (SEC) when it thwarts insider trading or prevents financial panics.  The Administrative State is the EPA when it protects our air, water and soil from hundreds of toxic chemicals.  The Administrative State is the hundreds of Executive Branch agencies and cabinet units that do the fundamental work of government.

In addition to the very real environmental disasters that are certain to follow the kneecapping of the EPA’s authority to control greenhouse gas emissions, there are four, decidedly non-conservative aspects of the decision that illustrate the frightening reality of the Court’s new radically right-wing supermajority,

• its impatience with judicial restraint,
• its eagerness to ignore precedent,
• its creation of a new constitutional principle out of thin air, the “major questions doctrine,” and
• its willful blindness to the current-day political realities and their real-life consequences.
  

Judicial Restraint and the Court’s Political Legitimacy

Just two weeks previously, Chief Justice John Roberts had pleaded with the conservative majority overturning Roe v Wade to remember the importance of “judicial restraint,” a core principle of truly conservative jurisprudence.  Roberts wrote that the Court could have decided Dobbs v Jackson Women's Health Organization by declaring constitutional the Mississippi law prohibiting abortion after fifteen weeks; the Court did not need to take the radical step of overturning Roe v Wade completely.  Defining the essence of judicial restraint, Roberts wrote, “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.”  

Roberts is aware that in our polarized times, the Supreme Court’s legitimacy depends on the public perception that the justices are acting on the basis of law — the Constitution, government legislation, precedent, and objective principles — and not on partisanship or the philosophical views of new judges.

In this EPA case, it turns out, actual judicial restraint would have meant not taking the case at all, and Roberts himself seems to have forgotten his concern with legitimacy.  Judicial restraint would have called for the Court to wait at least until there was an actual, real-life legal issue.  To the contrary, West Virginia v EPA involves regulations proposed in 2016 by the Obama Administration’s EPA but already rendered moot.  The regulations would have required the states to submit plans for shifting away from fossil-fuel power plants in favor of alternative forms of energy.  Even before those regulations were promulgated, however, the Supreme Court issued a stay that kept them from going into effect.  Real-life economic conditions then made the regulations unnecessary: the expense of coal-fired plants and ever-cheaper wind and solar so encouraged the use of alternative energy sources that the emission-reduction goals of the Obama-era regulations were met ahead of schedule anyway.  So there were, in fact, no EPA regulations in effect or pending.  The Biden administration has been in the process of developing its own regulations and, well before the ruling, asked the Court to wait for its new guidelines before deciding the case.  There was, therefore, no actual need for the court to take it up.  

The Court’s reactionary majority, however, was so eager to curtail the power of government that it ignored judicial restraint, accepted the case and decided it, anyway.  

Ignoring Precedent

The legal standard on which the majority relies is the “nondelegation doctrine,” a putative constitutional principle that Congress may not delegate rulemaking authority to administrative agencies without breaching the Constitution’s separation of powers.  The problem for the orginalist, as Adrian Vermeule makes clear, is that the nondelegation doctrine did not exist in the founding era and as a constitutional principle has been used only twice by the Court, both times by the reactionary Court of the 1930s trying to invalidate the New Deal.  Nondelegation is an invented tradition.  

The reality is that for almost one hundred years, Congress has made clear — and the Supreme Court has agreed — that the congressional legislative process is not well suited to formulate the detailed regulations that are necessary for the complex and ever-changing technical, scientific, economic, and moral milieus to which its laws must respond.  Rather, it has been obvious that Congress sets the intention and general parameters but then expects the relevant Executive Branch agency’s scientific and technical experts to do the research, balance the conflicting claims, and make the decisions about how best to fulfill the mandate.  Chris Winters writes that this

administrative rule-making process has been the primary method by which the federal government has governed since the New Deal era.  Congress, a collection of politicians who are mostly lawyers, has neither the expertise nor intention of making laws governing the highly technical nuances of a modern administrative state.  

The Supreme Court has long made clear that it should not second-guess a regulatory agency’s interpretation of congressional intent.  In its 1984 Chevron Deference, the Court wrote that it must defer to administrative agencies’ interpretation of congressional intent, even when that intent is only implicit.  Specifically, a court may not substitute its own interpretation of the statute for any “reasonable” interpretation made by the administrative agency; only Congress can overrule an agency decision.  

Congress’s Clean Air Act mandates that the EPA figure out the scientific and technical details of air pollution, decide how clean the air should be, and promulgate the regulations necessary to clean it.  

It’s true that the Clean Air Act (passed in 1970 and amended in 1977 and 1990) does not specifically mention carbon dioxide (CO2) as a pollutant to be regulated.  However, discussion of the nascent science of climate change is part of the congressional record in the original version of the law and its updates.  In addition, the Clean Air Act explicitly allows for evolving atmospheric science.  Furthermore, in its 2007 Massachusetts v EPA decision, the Court determined that the EPA does have the authority to regulate CO2 emissions.

Writing for the majority, Chief Justice Roberts ignores these precedents and simply declares, “[I]t is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme” that would require the move to alternative sources of energy.  

Not “plausible”?  Why not?  Justice Elena Kagan notes in her dissent:

The enacting Congress told EPA to pick the “best system of emission reduction” (taking into account various factors).  In selecting those words, Congress understood — it had to — that the “best system” would change over time.  Congress wanted and instructed EPA to keep up. To ensure the statute’s continued effectiveness, the “best system” should evolve as circumstances evolved — in a way Congress knew it couldn’t then know.

According to its own precedents, therefore, the Court has no power to do what it has just done, blocking the agency from regulating carbon emissions.  As Kagan writes,

The Court appoints itself — instead of Congress or the expert agency — the decisionmaker on climate policy. I cannot think of many things more frightening.

The “Major Questions Doctrine”

How did the Court defend substituting its own judgment for that of the EPA?  

In order to justify its radical activism, the majority jumped upon a recently excavated “major questions doctrine” that has been percolating in conservative legal circles since the late 1970s but which has never been previously mentioned in a majority opinion.  Suddenly, Congress must speak with “particular clarity” when it authorizes executive agencies to address “major political and economic questions.”  As Vermeule writes,

Who knows when the court, or for that matter any one of the nation’s 700 district judges, will deem a case “extraordinary” and shut down a national federal regulatory program?  Moreover, despite insisting that major questions cases are extraordinary, the court inconsistently went on to describe them as arising “from all corners of the administrative state” — a clear signal that the court expects its anti-regulatory approach to be routinely invoked in the future. The extraordinary has become ordinary.

And in a further clue to the lack of seriousness with which the conservative majority approaches the question, nowhere is there guidance as to what a “major question” is.  For the time being, it’s any question that the Supreme Court thinks is important.

It is not difficult to predict the hundreds of thousands of lawsuits paralyzing the regulatory process as every business, individual, or organization brings its favorite “major political or economic question” to local, state, or federal court.  It is hard to imagine a more efficient way to dismantle the administrative state

Willful blindness to real-world consequences

The Court is being willfully blind to the political realities of contemporary congressional dysfunction.  Fully cognizant that in our current polarized politics Congress is incapable of acting on climate change, the court is nevertheless demanding that nothing happen unless Congress acts anew.  Roberts acknowledges that “[c]apping 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,’” but the conservative majority knows full well that it is destroying the ability of government to enforce such a sensible solution.

Kagan writes that the ruling strips the government of “the power to respond to the most pressing environmental challenge of our time.”

Whatever else this court may know about, it does not have a clue about how to address climate change.  …  And let’s say the obvious: The stakes here are high. Yet the court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. 

In the term just passed, the conservative majority used the same rationale to forbid OSHA from mandating large employers to have their workers vaccinated or undergo frequent testing.  Four of the conservative justices would have even prevented Health and Human Services from mandating that hospital workers be vaccinated.  

The Supreme Court is now dominated by a radical supermajority that is intent on dismantling the administrative state and upending government protection from corporate power.  That may be good news for the unrestrained libertarians among us.  It’s not good news for anyone interested in day-to-day good governance.