(RightWing.org) – For decades, under Democratic and Republican presidents, Conservatives argued the executive branch was too large, powerful, and out of step with the US Constitution. Over the last number of years, Conservatives on the US Supreme Court (SCOTUS) expressed support for what’s known as the Nondelegation Doctrine. It’s likely to be at the heart of a case the High Court is about to hear regarding the role of the Environmental Protection Agency (EPA) in shaping global climate change policy.
Some believe that West Virginia v. Environmental Protection Agency could be one of the most consequential court decisions in a very long time. The case centers around a plan created by the EPA under the Obama administration to control greenhouse emissions. Republican-led states, energy companies, and coal mining operators believe the EPA went too far in creating laws through regulations without Congressional action. If the court rules against the government, it could have wide-sweeping consequences for the federal bureaucracy.
Could the Court Re-Establish the True Meaning of Separation of Powers?
President Obama once warned Congress if it didn’t do as he demanded, he had a pen and a phone and would use them to implement his agenda without the legislative branch. He did just that with the Clean Power Plan. Using the power of the EPA under the Clean Air Act, Congress authorized the president to use the “best system of emission reduction” possible using existing technologies.
The question is, did Congress give up too much power to the executive branch and violate the separation of powers?
The EPA is smack in the center of the question as a federal agency under the executive branch’s purview. According to the Clean Power Plan, presidents with differing perspectives can end and start new policies on a whim, setting off a litany of problems for the energy industry, which needs consistent policies to function properly.
The law, like most, is highly vague on specific actions the executive branch can and cannot take. Therefore, it leaves the full discretion of creating regulations that carry the weight of law without Congressional approval in the president’s hands. Advocates argue Congress shouldn’t be specific and hamper the executive branch’s ability to implement the spirit of the law. Those arguing against it believe Congress is creating a monster in the executive branch that wields too much unaccountable leverage by interpreting the law’s spirit through an ideological lens.
Will Justices Assert the Nondelegation Doctrine
In recent years, the Supreme Court nullified parts of Obamacare and other legislation under what’s known as the Nondelegation Doctrine. In short, it’s a Constitutional and administrative law principle that says Congress cannot delegate its lawmaking powers to the executive branch or agencies within it to create laws in the form of regulations. It comes from a strict interpretation of Article I, which says only Congress can write and pass laws.
If the 6-3 Republican-led majority of the SCOTUS asserts the Nondelegation Doctrine, it could weaken or abolish hundreds or thousands of regulations and force Congress to go back to the drawing board to get specific about what laws and policies it wants. The law could be even more wide-ranging if plaintiffs challenge federal agencies who may be overreaching.
The argument Congress is divided and can’t get anything done is nonsense. The framers designed Congress for passionate lawmakers to make their case, argue it out, persuade their colleagues, build coalitions, and pass legislation. It’s a dirty, tedious, iterative process. If the majority agree a piece of legislation is a good policy, it will pass. If not, it won’t.
The Supreme Court’s job is to interpret the Constitution and ensure the government adheres to it. It might be convenient to punt policy-making to unelected bureaucrats to do the work Congress doesn’t want to do, but that doesn’t make it permissible under the US Constitution.
That’s what’s really at stake in West Virginia v. Environmental Protection Agency.
Don Purdum, Independent Political Analyst
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