Supreme Court Rightly Restored Limits on Executive Agencies

Commentary

During the final weeks of the U.S. Supreme Court’s 2022 term, the justices issued some truly historic rulings. In doing so, the Court went a long way toward reestablishing itself as a coequal branch of government designed to uphold individual rights guaranteed by the Constitution against illegal government restrictions, while defending the separation of powers, laid out in the Constitution, among the three branches of the federal government and between the federal government and the states.

The cases decided by the Court included the president’s power to set immigration policy, state and local governments’ discrimination against expressions of religious faith, limits on gun rights, and the federal guarantee of access to abortions, among numerous other issues the Court ruled on.

As important as the rulings in this wide range of cases are, the decision in West Virginia v. EPA is arguably the most consequential and far-reaching from an economic standpoint, and in regard to the Constitution’s separation and delegation of powers.

The 6–3 decision, written by Chief Justice John Roberts, says the U.S. Environmental Protection Agency’s (EPA) attempt to use an obscure provision of the Clean Air Act to usurp states’ longstanding authority to manage their electric power grids doesn’t pass constitutional muster. In its 2015 Clean Power Plan, the EPA tried to force states to close their coal plants, limit the use of natural gas, and expand wind and solar generation in order to “decarbonize” America’s power supply.

The Court majority held that Congress never gave the EPA the far-reaching authority necessary to ban fossil fuel use for electricity to limit carbon dioxide emissions.

The Constitution delegates to Congress alone the power to regulate interstate commerce. Unelected bureaucrats may not usurp that power by addressing major questions, meaning policies that are politically and economically significant, without clear direction from Congress. Carbon dioxide is ubiquitous, and sharply limiting it by restructuring the nation’s power grid is a major undertaking that would impose trillions of dollars in costs, affect millions of jobs, and disrupt every sector of the economy. Redesigning the nation’s power grid, as the EPA attempted to do, is a major policy undertaking that Congress didn’t delegate to the EPA

“Capping 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,’” wrote Chief Justice John Roberts (pdf). “But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme …. A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”

Not only did the Court’s majority find Congress never explicitly granted the EPA the kind of power it claimed, but Congress had also taken up proposals to limit carbon dioxide emissions on several occasions and chose not to enact them, Roberts noted.

“At bottom, the Clean Power Plan essentially adopted a…