WASHINGTON – In the aftermath of the Supreme Court overturning Roe v Wade it was easy to miss, but the court’s ruling in West Virginia v. EPA delivered a major blow to the federal bureaucracy.
The case considered the Obama-era Clean Power Plan. President Obama couldn’t get his plan to drastically change the nation’s power grid known as “Cap and Trade” through Congress, so he famously acted on his own.
“I’ve got a pen and I’ve got a phone and I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward,” the president said before a 2014 cabinet meeting and on a number of other occasions.
Working through the EPA on executive authority he expanded the Clean Air Act, written in the 1960s, to reduce toxic emissions. Instead of addressing individual power plants as the law had been applied, Obama went after the entire fossil fuel industry in a way that would have transformed the U.S. power grid, and for that, the Supreme Court called a foul.
“The court said Congress has to say specifically what they want EPA to do if they’re going to do something that has such a monumental impact,” said Derrick Morgan, executive vice president of The Heritage Foundation.
He says the court’s action is significant as presidents increasingly wield their executive pens to get their agendas passed around Congress.
“When you have a government that is looking to do so many things and they face resistance in the legislative branch, we’ve had a tendency for the president and through his agencies to try to do everything that they couldn’t do legislatively,” Morgan said.
However, it’s not just presidents. Congress is also guilty of delegating vast powers to federal agencies. It’s a way of dodging the details of their decisions. It’s also politically expedient to use bureaucrats as scapegoats.
“You know, allowing politicians to escape blame by them saying, ‘All I did was vote for clean energy, EPA took this and went way too far.’ Well, that’s not good for accountability. We need to be able to hold the lawmakers accountable for bad policy decisions and outcomes,” Morgan told CBN News.
It’s not just big industries that get caught in the crosshairs. Oftentimes ordinary citizens find themselves fighting against the weight of the federal government for things they couldn’t have imagined would land them in trouble.
That’s precisely what happened to Andy Johnson after building a stock pond on his Wyoming ranch. He got approval from his locality and state but didn’t ask permission from the EPA, and for that mistake, he faced $20 million in fines.
“The EPA has come in and threatened to take everything we’ve ever known,” Johnson said.
And it wasn’t just millions that were on the line.
“Almost every environmental statute includes criminal provisions, so you could go to jail and face criminal fines for things that most of us take for granted on our own property like moving dirt from one place to another,” Jonathan Wood with the Pacific Legal Foundation told CBN News.
In fact, there are so many government regulations concerning every aspect of American life that recent efforts to count them have failed.
“I’ve seen the estimate of at least 300,000. It’s probably more like 400 or 500,000 regulations that carry criminal penalties,” says John Malcolm, Vice President of the Institute for Constitutional Government and director of the Meese Center for Legal and Judicial Studies at The Heritage Foundation.
He’s talking about un-elected bureaucrats writing regulations that can land Americans in jail.
“Sure and it’s a huge number. We all have one thing in common, me included, which is one time or another we have probably violated some criminal violation. We just don’t know it and we were just lucky enough not to get caught and prosecuted,” he continues.
The administrative state was a progressive idea pushed by President Woodrow Wilson and others in the early 1900s. Wilson thought the government would be better if the experts were left in charge.
“And so the idea there was staff the government with experts who stay no matter who the president is and have them use their best judgment in order to promote new rules and regulations,” explains Morgan.
And if Wilson planted the seed, FDR cultivated it as his Depression-era New Deal would grow and fundamentally change the federal government forever.
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A number of legal scholars say America’s ever-ballooning bureaucracy is unconstitutional.
In a widely cited 1994 article published in the Harvard Law Review, legal scholar Gary Lawson wrote, “the post-New Deal administrative state is unconstitutional and its validation by the legal system amounts to nothing less than a bloodless constitutional revolution.”
So what does the Supreme Court’s action mean practically for Americans?
It may soon get its first test. California and other states have banned combustion engines starting in 2035. If allowed to stand, that move will dramatically change the national auto industry. In addition, that step was taken not by the California legislature, but by a state agency.
“Hopefully that will temper some of this Green New Deal that we are starting to see some of the impacts that are really worrisome in places like California or even in Europe where they have discarded coal,” says Morgan.
Also, look for more guidance from the Supreme Court. Chad Squitieri, an expert in administrative law at The Catholic University of America, says the court seems primed to examine whether the administrative state has drifted too far from the separation of powers which is a bedrock of America’s Constitution.
“The Major Questions Doctrine which was applied in West Virginia v EPA is sort of, I like to say, scratching at the non-delegation itch. It’s not the full-fledged non-delegation doctrine, but I think it’s something of a halfway measure and I think these types of questions – looking at different ways courts may police how Congress delegates authority to the agencies – is going to be a recurring theme in the years to come,” he told CBN News.
“I think it’s because the current court is more prepared than courts in the past to enforce the original understanding of the Constitution – what we would call the original public meaning of the Constitution, particularly the separation of powers and federalism,” he continues.
It will be a relief to many Americans who want to be governed directly by the people they elect and are eager to rid themselves of what they see as a gross overreach by unelected bureaucrats.
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