The howls of anguish from Democrats over the Supreme Court's 6-3 ruling in West Virginia v. Environmental Protection Agency may not have been quite as loud or as hysterical as the hyperbole generated by its decision in Dobbs v. Jackson Women's Health Organization the previous week. But savvy liberal observers understand that this case—which prevented the EPA from issuing a sweeping new set of regulations regulating carbon emissions at power plants that could have raised the price of energy and had a devastating impact on the economy and consumers without the express permission of Congress—is every bit as significant as Dobbs. It sets up a legal roadblock that should block the Biden administration from implementing some of the most significant and far-reaching policy shifts that are at the top of the Democratic base's climate change wishlist.
This decision isn't a case of right-wing judicial activism. It is instead based on a basic idea that ought to be at the heart of democratic self-rule. The laws and regulations that impact the everyday lives of both industries and individuals should be the result of the will of Congress—not an administrative state that has effectively taken over the nation's day-to-day governance.
For those raised on the "Schoolhouse Rock" explanation of the three branches of government, the existence of the administrative state is something of a mystery. Though technically under the purview of the executive branch, it has in essence taken over the responsibilities of Congress and the legislative branch. Partly the result of congressional inertia and gridlock, but mostly the product of the vast expansion of the government and its bureaucratic arm that has continued to metastasize since President Franklin Roosevelt's New Deal, it has become the long arm of the state drafting and then enforcing regulations that have the power of law, even though they were never part of any bill passed by Congress.
Unless Congress reasserts its lawmaking prerogative, the only other force that can check the administrative state is the judiciary. But the judiciary has been inhibited from doing so by the so-called "Chevron rule," named after a 1984 Supreme Court case in which it accepted the idea that judges should defer to administrative agencies' interpretations of the authority that Congress gave them in situations where the statutory text is ambiguous and the agency's interpretation is reasonable.
In the intervening 38 years, that has led to a state of affairs in which the courts have allowed the administrative state to completely usurp the constitutional role of the elected legislative branch—Congress.
The result is that the "Schoolhouse Rock" lesson on the Constitution has become obsolete. Despite the intentions of the Founders, it is now bureaucrats who are drafting the laws (in the form of regulations) and implementing them while simultaneously claiming that Congress passed legislation decades ago—in the West Virginia case, it was the Clean Air Act of 1970—giving them the authority to do so.
Chief Justice John Roberts, who is otherwise deferential to the point of obsequiousness when it comes to the Washington establishment, has nonetheless taken on the dismantling of the administrative state as a personal project. He has put forward a "major questions doctrine" that holds that in "extraordinary" cases that concern matters of great "economic and political significance," federal agencies must be able to point to specific congressional authorization for their actions, rather than vague language in bills that were never intended to authorize a bureaucracy to take independent action. In the West Virginia majority opinion, Roberts wrote that the courts should be "skeptical" about agencies seizing for themselves the authority to set broad, far-reaching policy.
This doctrine is constitutionally sound. An administrative state that arrogates to itself the power to rule the nation without checks from the legislative or judicial branches is unmoored from democracy.
But constitutional and democratic principles don't seem to matter much to Democrats these days.
The outrage about the court's decision rests primarily on the idea that some issues are simply too important to be left to constitutional processes or the will of the voters.
With respect to the EPA, the Left is fully convinced that the urgency of climate change means that the Constitution and democracy can be thrown out the window. As even Justice Elena Kagan wrote in her dissent after a lengthy dissertation on the horrors of global warming and the theories about it leading to planetary doom, "Whatever else this court may know about, it does not have a clue about how to address climate change."
She's right about that, but the Supreme Court's purpose isn't to make or approve environmental policy. It's to ensure that laws are properly constituted and enforced. That role is antithetical to a freewheeling administrative state.
Kagan's dissent was echoed in many liberal opinion columns, such as one by The New York Times' David Wallace-Wells, who thinks that even if Biden's appointees were able to sink the energy industry with new carbon policies, it wouldn't be enough to avert planetary "gloom" and "doom."
But the problem is, the kind of laws that would enable a climate change revolution—which would be a disaster for both the economy and the people—have no chance of being passed. Despite the American people's general willingness to care about climate change, the specific policies in the "Green New Deal" put forward by Rep. Alexandria Ocasio-Cortez (D-NY) are deeply unpopular. The same is true of the inevitable consequences of the EPA's crippling carbon plans.
Liberals, who otherwise make much of their devotion to democracy when it can be used as a club against former President Donald Trump and Republicans, clearly believe that being right is more important than having proper legal authority. They believe courts should simply let bureaucrats do as they like. The hard work of passing laws that would authorize their plans for remaking the economy is an impediment to their quest for power.
Government by fiat of intellectuals or scientific experts may or may not be good policy. But it is alien to the U.S. Constitution, and it has nothing to do with democracy. It is, in fact, a form of authoritarianism that far outstrips anything Trump might have tried when it comes to the rule of law.
What the Court did in West Virginia is to deal a devastating blow to the unaccountable and unelected federal bureaucracy that has largely usurped the governance of the country over the course of the last several decades. If liberals want to revolutionize American society to avert global warming, they're going to have to actually pass the laws that will enable them to do so. But in this case, the Court has done more than hobble one particular left-wing objective. It has placed the extra-constitutional administrative state on warning that its ability to implement far-reaching policies by decree is over.
Jonathan S. Tobin is editor-in-chief of JNS.org, a senior contributor to The Federalist and a columnist for the New York Post. Follow him on Twitter: @jonathans_tobin.
The views expressed in this article are the writer's own.
