Opinion | The court’s EPA ruling was about something much bigger than one agency | #computerhacking | #hacking


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The formal adoption of the “major questions doctrine” by a solid six-justice majority in West Virginia v. EPA on June 30 was covered by the media as primarily, if not exclusively, a blow to the Environmental Protection Agency’s proposed regulations to combat global climate change.

The news coverage largely missed the decision’s true significance. That’s understandable. Most journalists are not familiar with the far-reaching tentacles of the federal administrative state. The court’s ruling certainly was a setback for the “pen and phone” brigade of progressives who believe a progressive president ought to be able to use phone or email to order executive branch agencies to do whatever he or she determines is necessary and proper.

But that’s not how the Constitution spells it out: Ours is a Constitution-bound government, whose powers are enumerated by that document. As of Thursday, administrative agencies established by the Congress have been put on notice by the Supreme Court not to take action on controversies or issues — no matter how pressing those issues are believed to be — unless first given direction by Congress on the “major questions” the agency would like to answer in whole or part by regulation. In layman’s terms, federal bureaucrats need explicit permission from the Congress to undertake the sort of regulatory regime they propose to implement. Chief Justice John G. Roberts Jr. wrote a masterly explication of the major questions doctrine that should make it easy to understand even for the most progressive of law professors. Justice Neil M. Gorsuch added a kicker of a concurrence that includes as memorable a footnote as I’ve ever read.

The footnote, citing sources, says, “Woodrow Wilson famously argued that ‘popular sovereignty’ ‘embarrasse[d]’ the Nation because it made it harder to achieve ‘executive expertness.’ … In Wilson’s eyes, the mass of the people were ‘selfish, ignorant, timid, stubborn, or foolish.’ … He expressed even greater disdain for particular groups, defending ‘[t]he white men of the South’ for ‘rid[ding] themselves, by fair means or foul, of the intolerable burden of governments sustained by the votes of ignorant [African-Americans].’ … He likewise denounced immigrants ‘from the south of Italy and men of the meaner sort out of Hungary and Poland,’ who possessed ‘neither skill nor energy nor any initiative of quick intelligence.’ … To Wilson, our Republic ‘tr[ied] to do too much by vote.’ ”

If Gorsuch used a Thor’s hammer on the vanity of progressives’ faith in “experts” organized in bureaucratic enclaves, the chief justice used a stiletto of a single sentence to gut the overreaching ambitions of federal agencies everywhere, not just the EPA’s overreach:

About the EPA’s attempt to invent the provenance for its climate change regulations, Roberts concluded, “There is little reason to think Congress assigned such decisions to the Agency.” And, in an instant, a brick wall appeared, beyond which that agency may not pass without explicit direction from Congress to do so. And not just the EPA, with its now-doomed climate regulations; every federal agency has been put on notice. If there is “little reason to think Congress assigned such decisions” regarding, for example, the U.S. Fish and Wildlife Service’s “critical habitat” designations for subspecies of allegedly endangered species, the agency may soon be dragged into federal court.

The same goes for the Federal Trade Commission and its regulations of Big Tech’s data-collection practices, and for any agency seeking to control what Congress has not explicitly given them authority to control. The bureaucrats will have to defend what the plaintiffs from the private sector will label as usurpations that run afoul of the major questions doctrine. Some agencies should have already begun to live in fear — rightly — of an invigorated takings clause of the Fifth Amendment (applicable to state and local governments by operation of the 14th Amendment) that will oblige the government behind the bureaucrats to pay for impositions both permanent and temporary on private property.

Now they have to worry not only about paying for their past excesses but also about being expelled from whole ranges of their previous bureaucratic turf. “Evicted” is a sign that could soon hang in any number of corridors in Washington’s vast federal buildings. Thus concluded the most memorable Supreme Court term of any in my four decades as a lawyer and three as a professor of constitutional law. Headlines inevitably focus on the decisions with immediate impact on many, and about which the public knows something. But in West Virginia v. EPA, the chief justice and his colleagues began a long, long overdue trimming of the wildly overgrown federal administrative state.

The unelected and unaccountable have been grabbing power for decades. More such hacking back of the overgrowth cannot arrive soon enough. The federal circuit and district courts will read this decision and get to work. Good. Hurry.



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