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

AMAC Exclusive – By Katie Sullivan

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.