For far too long, our unelected federal administrative state has seemed to expand without end. Seizing on the most tenuous power grants from Congress, faceless functionaries have asserted more and more control over almost every aspect of our lives.
But last week, the U.S. Supreme Court sent those agencies an important message: No more.
The court’s opinion in West Virginia v. EPA caps off a long battle my state of West Virginia and many other states have waged against the EPA and its strident effort to reorder our nation’s power grid in the name of combatting climate change. In it, the court ruled that the transformational power to decide major questions like these belongs to the American people — acting through the representatives they elect, not the bureaucrats they don’t.
It all started in 2015 when EPA hijacked an obscure section of the Clean Air Act to try to dictate how the nation would produce electricity. But EPA’s self-styled “Clean Power Plan” bore the fatal flaw of a classic agency power grab: The American people, through Congress, never approved it. So, West Virginia and others took EPA to court. When the D.C. Circuit blessed (and even expanded) this overreach, the Supreme Court stepped in to have the final say. What followed was a blistering rebuke of agency overreach.
The court firmly rejected EPA’s attempt to use a “previously little-used backwater” of the Clean Air Act as a means to “force a nationwide transition away from the use of coal to generate electricity.” Because of EPA’s overreach, the Clean Power Plan presented one of the “extraordinary cases” in which “both separation of powers and a practical understanding of legislative intent” made the court “reluctant to read into ambiguous statutory text the delegation claimed to be lurking there.” Indeed, EPA purported to wield “newly discovered” “unprecedented power over American industry,” deciding on its own “that it would be best if coal made up a much smaller share of national electricity generation. But this effort required “comparative expertise” EPA did not have, and authority “Congress certainly has not conferred” it.
In other words, the American people tell the federal government when and how federal power may expand, not the other way around — and especially not in the name of what the federal government says is “best” for Americans as a whole. “Of all tyrannies,” wrote C.S. Lewis, “a tyranny sincerely exercised for the good of its victims may be the most oppressive,” as “those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.” Quite right.
Different results would be disastrous; as Justice Neil M. Gorsuch wrote in his concurring opinion, agencies would make “intrusions on liberty … easy and profuse” by “churn[ing] out new laws more or less at whim.” Agencies would muscle states out of the way, and the current president’s will “or, worse yet, the will of unelected officials barely responsive to him,” would prevail. Whether it be climate change or any other issue, West Virginia v. EPA establishes that bureaucrats have neither the power nor the right to impose their unilateral will on the American people.
Although we celebrate this important first step, our work is far from done. If this past year shows anything, it’s that agency overreach is poised to rear its ugly head around every corner. The Supreme Court had to keep the CDC out of the rental property business. Then the court had to stop OSHA from issuing broad public health edicts for millions of American workers. Now, the court had to remind unelected EPA officials that the Clean Air Act does not allow them to upend the entire power industry. And on and on.
Moving forward, President Biden’s efforts to elevate his powers to new heights will take on some new form — pushing hard, it seems, to make these “extraordinary cases” of agency overreach seem like ordinary ones. But liberty-loving Americans need not worry. West Virginia is ready to brush them back again. Except this time, the momentum is ours. And if one thing is certain now following the ruling in West Virginia v. EPA, it’s this: The growth of the administrative state is no longer guaranteed.
• Patrick Morrisey is the attorney general of West Virginia.
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