At the end of its 2021-22 session, the U.S. Supreme Court issued major decisions greatly restoring Constitutional jurisprudence and the rule of law and getting the court out of politics. One of the most important was West Virginia vs. Environmental Protection Agency, which reversed 130 years of destructive metastasis of the federal administrative state developed by progressives, statist liberals and other leftists.
Writing for a 6-3 majority in West Virginia, Chief Justice John Roberts ended the rubber stamping, via the 1984 Chevron decision, of federal administrative agency decisions not based on actual law. He did so by fleshing out the major questions doctrine the court has developed in recent years. Under Chevron, when Congress’s laws were unclear or ambiguous about the authority delegated to a federal agency, regulators were presumed to have special expertise to take Congress’s vague mandates and decide by application what the exact law should be. Likewise, due to that purported expertise to determine appropriate policy undemocratically, courts were expected to extend deference to the judgement and actions of the regulators.
The major questions doctrine holds that when an agency asserts authority over questions of great economic or political significance, it requires clear authorization from Congress to do so. As the Constitution states: “All legislative powers herein granted shall be vested in a Congress of the United States.” Chevron deference allowed Congress’s leftists willfully to write extravagant vague laws with flowery language that was difficult to oppose, while avoiding committing supporters to the draconian measures the leftists intended. The latter was left to the backroom arts of unaccountable appointees, who being of the same political stripe, did the dirty work.
In West Virginia, President Barack Obama’s EPA used a tortured misinterpretation of an inapplicable provision of a 52-yearold statute to conclude it has the power to set national carbon dioxide standards and remake the nation’s power grid, despite Congress never having considered giving it such power. The decision has ramifications for all federal regulation, and the Biden Administration has been unsuccessfully trying the same overreach in other areas. The legal soundness of the decision was so clear it left the court minority and other opponents sputtering only a parade of horrible possibilities they imagine will result in many areas. If any of that hyperventilating is merited, the critics should talk to a feckless Congress about doing its job.
A concurring opinion by Justice Neil Gorsuch, joined by Justice Samuel Alito, notes that President Woodrow Wilson, father of progressivism and the administrative state, promoted government by purported experts because he believed the people are “selfish, ignorant, timid, stubborn, or foolish.” (Wilson was also a staunch racist.) Along similar lines, a New York Times ideologue recently falsely alleged, “The ruling is the latest sign that the Republican Party is unconcerned about climate change.” The point is, the EPA had no authority to do what it did, despite the Biden Administration’s idea the “whole of government” will promote all its policies.
The decision and especially the concurrence confront directly the metastasis of early progressive dogma into today’s government-wide practice and the sad jurisprudence of the last 50 years. The court has only started to halt this anti-constitutional, anti-democratic, authoritarian over-reach of the fetid swamp’s bureaucracy. The tide has turned against those seeking to “fundamentally transform” our society to tyrannical progressivism. We will return to the Constitution and laws’ text, tradition and history.
Nineteen years ago, Nevada’s supreme court issued its worst decision ever in Guinn v. The Legislature, seeking to render ineffective the two-thirds vote a people’s amendment required for tax increases. It later walked back the completely disingenuous decision, which one judge told a legislator had been intended to “help” the legislature. But the Nevada court continues to frustrate the people’s participation with spurious, politically driven rulings about the summaries of initiative petitions. With the turn toward the rule of law and away from judicial politics, we can hope that court gets on board, too.
Ron Knecht is Senior Policy Fellow, Nevada Policy Research Institute.