Government Watch / Politics

The Supreme Court’s Shot Across the Bow of Big Government Bureaucracy

AMAC Exclusive – By Katie Sullivan

Supreme Court

Following the conclusion of the most recent Supreme Court term, the Court’s decision in Dobbs v. Jackson Women’s Health Organization has continued to garner the lion’s share of media attention – and rightly so, considering the major victory that the case represents for the pro-life movement. But given Democrats’ ongoing push to massively expand the size and power of the federal bureaucracy, another case, West Virginia v. EPA, is proving to be a similarly monumental victory for conservatives. Far beyond correcting one specific wrong by the Environmental Protection Agency (EPA), this case has laid the groundwork for guarding against unconstitutional overreaches by every executive agency moving forward.

On the surface, the Court’s decision in West Virginia v. EPA answered a narrow question: whether the Clear Power Plan (CPP) implemented by President Obama in 2015 was an appropriate delegation of EPA’s regulatory authority under the Clean Air Act. Under the provisions of the CPP, the U.S. energy sector was ordered to reduce its carbon dioxide emissions to 32% below 2005 levels by 2030 – or a 9% reduction over 15 years when the CPP was enacted in 2015. For the power industry, this meant billions of dollars in additional costs – a prospect that would have forced many energy suppliers out of business entirely, particularly coal-fired power plants.

On June 30, the Court ruled that the EPA had indeed exceeded the authority granted to it under the Clean Air Act. Specifically, Chief Justice Roberts pointed to the fact that the CPP would force power companies into so-called “cap and trade” schemes – “capping” emissions at a certain level and allowing “trades” of emission credits – that Congress had expressly rejected in other legislation. In other words, the Court ruled, the CPP represented an illegitimate use of the authority granted to the EPA by Congress under the Clean Air Act.

But it’s not just the outcome of the case that is so important, but also how the Court arrived at its decision. In West Virginia, the Court for the first time invoked the so-called “major questions” doctrine, sending shockwaves through the legal and regulatory world.

In general, the major questions doctrine says that whenever a regulation has significant economic or political ramifications, Congress must be clear about what regulatory authorities an executive agency has. In the West Virginia case, the Court ruled that Congress was not clear in the Clean Air Act that the EPA had the authority to set such stringent regulations on coal-fired power plants – a question of significant political and economic ramifications. Therefore, EPA had overstepped its constitutional authority.

But as many Court watchers were quick to note, the decision put every federal agency on watch, not just the EPA. As Amy Howe of SCOTUSBlog put it, the ruling “likely will have ripple effects far beyond the EPA” that could apply “to any major policymaking effort by federal agencies.” Justice Roberts made as much clear in the majority opinion, writing, “Agencies have only those powers given to them by Congress, and ‘enabling legislation’ is generally not an ‘open book to which the agency [may] add pages and change the plot line.’”

This decision could thus lay the groundwork to finally begin to reign in the sprawling bureaucratic state that only grows larger with each passing year. According to the Office of Personnel Management, there are currently more than 2 million civilian federal employees, a figure which is easily doubled by adding in all defense, intelligence, and postal workers – and that doesn’t even include the millions of federal contractors. In 2020 alone, the federal government spent $665 billion on contract services.

With the recently-passed Inflation Reduction Act, this behemoth administrative state is only set to grow larger – most notably through the hiring of 87,000 new IRS agents. With each new hire, the executive bureaucracy grows more powerful and less accountable to the people and their representatives in Congress.

This system is directly at odds with what the Founders envisioned. The system of checks and balances laid out in the Constitution was specifically intended to prevent the growth of a bureaucratic state that usurps the authority of the legislative and judicial branches. Philip Hamburger, a law professor at Columbia University, has argued that all federal administrative action is unconstitutional, as it necessarily gives de facto legislative and judicial power to the Executive Branch. After all, Hamburger argues, if there is a question of application of a congressional statute – like with the Clean Power Plan – shouldn’t that question be answered by the judiciary? And yet every year the executive bureaucracy creates millions of pages of rules and guidance purporting to interpret the law.

By evaluating West Virginia V. EPA as a “major question” and not simply interpreting the statute, the Supreme Court has taken a shot across the bow of the administrative state. By holding the EPA accountable, the path is now open for other challenges to an executive branch prone to overreaching its Constitutional authority. In the years to come, this may well prove to be a major relief for millions of Americans who, whether knowingly or not, have borne the burden of an unwieldy and unaccountable administrative state.

Katharine “Katie” Sullivan was as an Acting Assistant Attorney General and a senior advisor to the White House Domestic Policy Council under President Trump. She previously served 11 years as a state trial court judge in Colorado.


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Stephen Russell
3 months ago

Long overdue & needed Hooray

DrScott
3 months ago

Where are they now with ALL THE EVIDENCE OF ELECTION FRAUD COORDINATED ON NATIONAL SCALE TO OVERTHROW OUR DULY ELECTED GOVERNMENT IN 2020?
SCOTUS IS NOT HELPING OUR NATION’S CITIZENS BY REMAINING ON THE SIDELINES FOR THIS.
I’M SICK OF THIS EVIL AND VERY CORRUPT DC SWAMP THAT’S SPREADING OUT OUR COUNTRY WITH IT’S VARIOUS WAYS OF EVIL, PERVERSION, CORRUPTION, THEFT, ETC.
WITHOUT THE JUDICIAL SYSTEM OF TRUTH AND EQUALITY AS FOUNDED, WE’VE GOT SERIOUS TYRANNY.
GOD, PLEASE HELP US LORD!

Hal
3 months ago

The DemocRat’s love Federal regulation of businesses. It gives them a good shot at feathering their Party and personal wallets. Typical of a so-called DamnocRat Party’s lust to RULE … not just GOVERN the Nation.

Matt
3 months ago

This is a very misleading article, and I would encourage you to do a better job of reporting, fact checking, and presenting your members with more honest and balanced information. abcnews.go.com/Politics/treasury-department-rejects-gop-claims-irs-agents/story?id=88495613

Nobody’s Business
3 months ago

The reason all these agencies are out there is to implement regulations that won’t pass congress . That way the politicians can act like they had nothing to do with it. When they are the ones forcing the agencies to act the way they do.

Hal
3 months ago

Bulls-eye!!!!

Larry W.
3 months ago

The democrat party should be called the “overreach “party. Every agency they control goes far beyond their constitutional limits. They don’t seem to understand the terms “individual freedoms” and “free enterprise system”

Letts Brandon
3 months ago
Reply to  Larry W.

That’s because they are communists. They are NOT the “overreach party”! They are the “COMMUNIST PARTY”!

edward
3 months ago
Reply to  Larry W.

no the democrat party should rightly be called the communist party. they have been hiding that until very recently. now they are so close to their ultimate goal of total domination they can taste it and are going for broke. who is going to stop them and hold them to our founders original constitutional intent, republicans like marble mouth mitch?
that’s a laugh.

Nick Murphy
3 months ago

The IRS is going to be the next gestapo like agency for the Biden Administration just like the FBI. They will be weaponized against anyone that is conservative. Be afraid very afraid! Don’t forget with the IRS you are guilty until you can prove yourself innocent. They can take down anybody they want to and now there’s going to be 87,000 more of them

Hal
3 months ago
Reply to  Nick Murphy

That speaks to my main critique of Trump’s presidency. He should have done much more in cleaning out a big group of Commie DemocRats in the FBI … not just the tall drink of water and Communist DemocRat head of the FBI.

David
3 months ago
Reply to  Hal

I was disappointed that Trump did not eliminate even one federal agency. Certainly Education should go because there is no grant of power over education to the federal government in the Constitution.

Deb Rockwell
3 months ago

We can seriously limit the power of the federal gov’t by calling a Convention of States through Article 5 of the Constitution. Significant progress is being made. Check out the Convention of States action to follow the progress. It is way past time to take OUR power back from the federal gov’t.

Letts Brandon
3 months ago
Reply to  Deb Rockwell

They do not follow the constitution now. Why would they follow any changes?

Steve Jones
3 months ago
Reply to  Deb Rockwell

And,We will!

Jeffrey Roddahl
3 months ago

The Department of Education needs to be abolished as it is not a constitutionally authorized Federal function; therefore, it is a state’s right. While we’re at it, get rid of the Teacher’s Union. It’s nothing but a political and ideological organization carrying out the wishes of the Democrat party. Then we could get back to educating our children, not brainwashing them.

Sharon Ormsby
3 months ago

Following constitutional law, the way every school kid in America should be taught, that the states are supposed to control things, not the feds.

Kyle Buy you some guns,and learn how to shoot
3 months ago

GEt rid of the EPA. Just a program under our 2nd worse president Jimmy (Peanut ) Carter. Kyle L.

Larry W.
3 months ago

Biden is trying his hardest to get first place.

Hal
3 months ago
Reply to  Larry W.

And I think he is leading!!!!!

PHG
3 months ago

Our congressional representatives either abdicate their responsibilities or are conniving in the structure of laws. The LD’s are too general and open the floodgates to bureaucratic interpretation (or “guidance” [a 4 letter word] in the vernacular). My praise for the high court’s decision in the matter. It’s a start that requires further vigilance and close scrutiny of unelected bureaucrats.

Rik
3 months ago

Communist wannabe Democrats WANT Complete Control to Dominate the American Populace!

Chris
3 months ago

Congress is lazy. While I hope for better, I expect that they will intentionally broaden the authorizing language in the laws going forward — especially Democrats who love the bureaucratic state.

I personally think many (most?) of the federal agencies should be taken out from under the President anyway. One vote every 4 years between 2 candidates is not enough say for the people to have on how the bureaucracies run — especially when so much else is wrapped up in that one vote (military, international relations, etc.)*. Congress and the States should get together and write up Compacts between the States as authorized by the Constitution to cover those agencies that truly need to be at the national level. Many of the rest can be made into cooperating regional agencies or returned to the States with possibly a *thin* national layer to enable communication/cooperation between the States agencies.

For the nation/regional agencies created by the Compacts, their chief executive/governing boards/bodies should be up for national/regional election — or appointed by State legislatures. The people need a more direct voice on who runs these agencies. The trickiest bit is figuring out financing. Ideally that would also move outside the federal budget with many of the agencies paying their own way but realistically it may have to remain there. That might be a good thing in that it would allow Congress a check on them but bad in that the federal workers’ unions would still a reason to wield massive political influence..

*Imagine Presidential elections that are primarily about them being the head of State and leader of the military instead of about what they will or won’t do for subgroups of the population.

anna hubert
3 months ago
Reply to  Chris

Most federal agencies should be dissolved they are useless bureaucratic nightmare

PaulE
3 months ago

Actually a very well written article that does an excellent job of covering the ramifications of the Supreme Court ruling. Yes, I expect the Supreme Court will be very busy over the next several years as the Democrats try to keep expanding their regulatory authority well beyond what past legislation ever actually authorized and Executive Branch agencies and departments to do.

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