Justice Kagan’s sophomoric misunderstanding of West Virginia v. Environmental Protection Agency

By Thomas Lifson – July 1, 2022

The Supreme Court’s decision on West Virginia v. Environmental Protection Agency, issued on the last day of its term, may mark the beginning of the decline of the unchecked power of administrative agencies to make law and issue judgments on their own.  The so-called “fourth branch of government,” the “administrative state,” has been grabbing power with no accountability to voters for many decades.  Congress has been its co-conspirator in short-circuiting political accountability.

The Wall Street Journal summarizes:

The Supreme Court ruled Thursday that federal regulators exceeded their authority in seeking to limit emissions from coal plants in a decision that sharply curtails the executive branch’s authority to make policy actions on a range of issues without congressional direction.

In a blockbuster 6-3 decision penned by Chief Justice John Roberts, the court said the Environmental Protection Agency had overstepped when it devised the Obama-era regulatory scheme, known as the Clean Power Plan. The plan had been challenged by West Virginia and others.

The court said that when federal agencies issue regulations with sweeping economic and political consequences — in this case, rules to address climate change — the regulations are presumptively invalid unless Congress has specifically authorized the action.

“A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body,” the chief justice wrote, faulting the EPA for finding new powers in “the vague language of a long-extant, but rarely used, statute.”

Congress has defaulted for decades on its responsibility to write laws, by delegating its legislative authority to bureaucrats who then make up “regulations” (with the authority of law) and issue judgments and exact penalties (just like laws).  The benefit for the legislators is that they escape the responsibility they would face if they had written these regulations as laws, when they produce negative consequences for interested parties, including potential campaign donors.

It seems pretty straightforward: the Supreme Court is telling Congress to do its job and pass laws, just as the Constitution requires it to do, and thereby face the consequences of those laws.  Political accountability is essential if laws are to be made, after all.  There is no accountability for bureaucrats who cannot be fired under Civil Service regulations.

But Justice Kagan, who wrote a dissent that was also signed by Justices Sotomayor and Breyer, entirely misses the point:

“The Court appoints itself — instead of Congress or the expert agency — the decision maker on climate policy[.]”

No, the Court has not appointed itself the decision-maker, Justice Kagan.  It has told Congress that it must be the decision-maker, which is what the Constitution says.  Justice Kagan is far from stupid.  How does one get such an obvious and simple point so wrong?

American Thinker