Liberals are gnashing their teeth over today’s decision by the Supreme Court in West Virginia v. EPA, in which the Court found that Congress has not delegated to the EPA power to reduce CO2 emissions by rearranging the country’s electricity producing system. The case, and the Left’s reaction to it, have several interesting features.
First, the Court has erected a barrier, at least in this instance, against the seemingly inexorable expansion of the administrative state. For the last century, Congress has steadily abandoned its Article 1 responsibilities by creating administrative agencies and delegating broad powers to them. Liberals have cheered this process since it inevitably has resulted in a steady expansion of unaccountable government power, so that, as I have written before, the government we live under is not the one that is described in our Constitution.
Chief Justice Roberts’ opinion links together several cases in which the Court has found that Congress did not intend to hide a radical expansion of regulatory authority in an obscure and seemingly innocuous statutory provision. Roberts groups these cases, including West Virginia, under the rubric of the “major questions doctrine”:
Precedent teaches that there are “extraordinary cases” in which the “history and the breadth of the authority that [the agency] has asserted,” and the “economic and political significance” of that assertion, provide a “reason to hesitate before concluding that Congress” meant to confer such authority. FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 159–160. See, e.g., Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___; Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324; Gonzales v. Oregon, 546 U. S. 243, 267; National Federation of Independent Business v. OSHA, 595 U. S. ___, ___. Under this body of law, known as the major questions doctrine, given both separation of powers principles and a practical understanding of legislative intent, the agency must point to “clear congressional authorization” for the authority it claims. Utility Air, 573 U. S., at 324. Pp. 16–20.
This represents, I think, plain common sense, but in the context of the administrative state a modicum of common sense is overdue. We can hope that West Virginia signals a broader willingness to rein in the excesses of delegation of powers, and return our government to the branches that are accountable to voters.
Second, liberal attacks on the decision are not coming, as far as I have seen, from people who have read it. Roberts’ opinion is well-reasoned and persuasive. The idea that 42 U. S. C. §7411(d) authorizes and directs the EPA to reorganize America’s energy system, closing coal plants and mandating wind and solar facilities, is absurd on any fair reading.
In that context, liberals’ reactions to today’s decision are revealing. Liberals view the actual words of statutes (like the words of the Constitution, see Roe v. Wade) as irrelevant. The one imperative is federal government power. If we have a supposed crisis–global warming!–the government must deal with it in the manner demanded by the Left, regardless of whether there is any statutory or constitutional authority for such action, and regardless of whether the people’s representatives have voted for it. This view is antithetical to both democracy and the rule of law, but it dominates today’s Democratic Party.
Finally, this is one more instance where liberal reaction is utterly unhinged. Exhibit A is Alexandria Ocasio-Cortez, the low-IQ but sort-of-cute representative from New York. She proposed that we abolish the Supreme Court:
Catastrophic. A filibuster carveout is not enough. We need to reform or do away with the whole thing, for the sake of the planet. https://t.co/if8PIbfs42
— Alexandria Ocasio-Cortez (@AOC) June 30, 2022
A filibuster carveout is not enough! It isn’t going to happen, of course: note that the plaintiff in the Supreme Court case is the State of West Virginia. And what might the “carveout” be? A one-time change in the Senate rules for this vote? Or maybe a ride-along with the carveout to pass a nine-month abortion bill. I don’t suppose either is likely.
But here is the real point: she says a carveout isn’t enough, so “we need to reform or do away with the whole thing, for the sake of the planet.” Reform means packing the court with newly-appointed liberal justices, which cooler heads have not proposed. It would be massively unpopular, would cement the GOP sweep in 2022, and would be undone by the next Republican president (likely in 2025) who inevitably would pack the Court further. But the dim-witted AOC is oblivious to these details.
“[D]o[ing] away with the whole thing, for the sake of the planet” means–evidently–abolishing the Supreme Court. This, of course, would require a constitutional amendment that would have to eliminate the entire Article III federal judiciary. To put it politely, that is an insane suggestion, and not one that any leftist would have advocated until approximately last week. Is this a serious proposal from the Democratic Party’s most popular (but perhaps least serious) member? Presumably not.
And, while no one expects New York’s best-known former bartender to be an expert on climate science, if we assume the Climatistas’ most dire calculations are correct, the Democrats’ proposed “Clean Power Plan” would have little or no measurable impact on the Earth’s climate. “The planet” is not at issue in today’s case.
So in multiple ways, today’s decision and reactions to it are signs of the times.