Agencies must not change their statutes | News, Sports, Jobs
An end-of-term notice from the United States Supreme Court will not get the attention that other such notices will.
Yet the court’s opinion in West Virginia v. Environmental Protection Agency is important not because it limits the power of government – which it does not – but because it limits the power of the administrative state.
That is to say the bureaucracy.
Chief Justice John Roberts wrote the opinion. He is joined by judges Clarence Thomas, Samuel Alito, Neal Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
Judge Elena Kagan, joined by Justices Stephen Breyer and Sonia Sotomayor, dissented.
Roberts, writing for the court, and Gorsuch, concurring with the court’s opinion, explain the importance of exploitation.
“Agencies only have the powers given to them by Congress, and ‘enabling legislation’ is generally not an ‘open book to which the agency (can) add pages and alter the plot'” said Roberts. “We assume that ‘Congress intends to make major policy decisions itself, not to leave those decisions to agencies.'”
No one disputed that the EPA can act under the statute to which the notice relates. Yet Roberts says that in this action, the EPA’s view of its authority “was not only unprecedented; it also carried out a ‘fundamental revision of the statute, changing it from’” a form of regulation “in an entirely different genre.”
Besides, the “The EPA’s newly discovered regulatory executive order allowed it to enact a program that…” Congress (had) considered and rejected “repeatedly,” said Roberts. The EPA simply could not “indicate ‘clear congressional authorization’ to regulate” that the EPA sought to regulate.
In short, government agencies must respect the laws they administer, not make them unrecognizable, let alone change them.
Gorsuch’s concurring opinion, joined by Alito, adds more.
The “the editors thought that a republic – a thing of the people – would be more likely to enact just laws than a regime administered by a ruling class of largely irresponsible ‘ministers'” said Gorsuch. By Conferring the power to legislate upon the elected representatives of the people, the Constitution was intended to ensure ‘not only that all power(s) would belong to the people’, but also ‘that those vested with it would be maintained in dependence upon the people. ‘ … The Constitution, too, has placed its trust not in the hands of “a few, but (in) a number of hands”, … so that those who make our laws better reflect the diversity of the people they represent and have an ‘immediate dependence and intimate sympathy with the people.
“The drafters believed that the power to make new laws regulating private conduct was a serious power which could, if not properly controlled, pose a serious threat to individual liberty”, said Gorsuch. “As a result, the drafters deliberately sought to make law-making difficult by insisting that both houses of Congress must agree to any new law and that the (p)resident must agree or that a legislative supermajority must override his veto.
“The difficulty of the design also sought to serve other purposes. By effectively requiring a broad consensus to pass legislation, the Constitution sought to ensure that any new law would enjoy broad social acceptance, benefit from the input of a range of different perspectives during its consideration, and through all of this, would be stable over time. … The need for compromise inherent in this design was also intended to protect minorities by ensuring that their votes often decided the fate of bills – allowing them to wield real power alongside the majority. … The difficulty of legislating at the federal level was also intended to preserve leeway to legislate ‘by governments that are more local and more accountable than a distant federal authority’, … and thus allow the states to serve as ‘laboratory(s)’ for ‘new social and economic experiences.’
“Allowing Congress to cede its legislative power to the (e)executive(b)ranch would ‘undo (that) entire (structure)’…. Legislation would risk being nothing but the will of the current (p )resident, or, even worse, the will of unelected elected officials barely receptive to him….In a world like this, agencies could craft new laws more or less as they pleased. would not be difficult and few, but easy and abundant. … Stability would be lost, with many laws changing with each new presidential administration. Rather than embodying broad social consensus and the contribution of minority voices, the laws would have most often the support of the single party currently in power.Powerful special interests, which are sometimes “only” able to influence the agendas of administrative agencies, would thrive while others would be left to the ever-shifting winds.
Dr. Randy Elf’s Independence Day brief to the United States Court of Appeals for the Tenth Circuit discusses the limits of government power and can be found at https://works.bepress.com/elf/167 .
COPYRIGHT c 2022 BY RANDY ELF