While it is understandable that most attention has been focused on the Supreme Court’s big ticket opinions at the end of its term – on abortion, separation of church and state, and gun rights – the enormously important decision restricting the powers of the Environmental Protection Agency has not been getting its due. In a very real sense, this latter ruling promises to change the way our democracy works in a fundamental way by reining in the trend towards government by unelected bureaucrats.

In West Virginia v. EPA, the Court examined whether the EPA overstepped its powers in 2015 when it dredged up an old, rarely-cited statute as authority to issue regulations limiting greenhouse emissions from power plants even though the statute did not directly speak to the issue.


Writing for the Court’s 6-3 majority, Chief Justice John Roberts invoked the Court’s “major questions” rule which requires a court to treat regulations with significant economic and political consequences as presumptively invalid unless Congress specifically authorizes the issuing agency to take such action.

To be sure, the issue in the case was climate control, but similar assumptions of transformative power are almost routine across the federal bureaucracy. As one Wall Street Journal editorial put it:

Contrary to their critics, the Justices aren’t blocking climate regulation. They are merely saying that the decision on whether and how to do it rests with Congress. As with many other decisions this Term, the Court is telling Congress and the executive to stay in their proper constitutional lane. Congress must give clear commands before the executive branch can write costly rules that tell Americans how to live their lives. The Court is reinvigorating the separation of powers and enhancing liberty in the bargain.

Perhaps if Congress spent more time debating the nitty gritty of how we live our lives rather than turning things over to bureaucrats, consensus government might actually be the rule rather than the rare exception.


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