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Friday, February 3, 2023

The Justices Send a Message to Congress

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The U.S. Supreme Court building in Washington, June 30.


Kevin Dietsch/Getty Images

It’s tempting to view Thursday’s Supreme Court decision to rein in the Environmental Protection Agency’s climate authority as a missile aimed solely at the bureaucratic swamp. It’s just as much a swipe at that bureaucracy’s enabler: the feckless U.S. Congress.

Sweep away the opinion’s numbing technical descriptions, and the ruling is a joy to read. The six conservatives on the court, in an opinion by Chief Justice

John Roberts,

have officially declared the “major questions doctrine”—a concept that has appeared in a handful of past court decisions—to be a living, breathing principle. The federal bureaucracy is no longer allowed to impose programs of major “economic and political significance” on the country absent “clear congressional authorization.” Hallelujah.

That’s a bummer for the executive branch—and its army of bureaucrats—which for decades has been acting as if it were king. In this case, the Obama administration was frustrated Congress wouldn’t enact a law empowering it to regulate climate emissions. So it magicked up the authority out of the 1970 Clean Air Act. Democratic administrations in particular are growing brazen in delegating to themselves these new superpowers. The Biden team last year in litigation insisted there existed in a 77-year-old law the authority to impose an eviction moratorium. Just as it found permission in a 51-year-old law to impose a vaccine mandate on the nation’s workforce. The high court struck down both and—just in case Mr. Biden didn’t get the hint—used this week’s EPA decision to lay out stricter rules going forward.

But it’s equally a bummer for Congress, which was essentially just told by the court to get off its lazy backside and resume the people’s work. It’s easy to bash the administrative state, but bureaucrats are simply filling a vacuum created by a legislature that these days can rouse itself to little more than naming a post office. “Federal agencies must have the authority to regulate carbon!” every Democrat wailed in response to this week’s ruling. To which the obvious response is: Then give it to them! Pass a law. Do your job.

Congressional sloth in recent years has hit mind-boggling new lows. It’s partly systemic, rooted in a mandatory spending regime that accounts for two-thirds of government dollars and runs on autopilot. That disconnect now imbues every aspect of governance. In the nearly 50 years since Congress created our current system of budgeting and appropriations, it’s managed to complete the process correctly four times. It last did so 25 years ago. The default is massive omnibus bills that are passed hours after release, minutes before the government shuts down for lack of funds.

It’s a function of power politics. Most high-profile legislation is crafted in a leader’s office or by “gangs”—bypassing committees, debate and amendments in favor of take-it-or-leave-it deals. Conference committees between the two chambers are essentially dead; the House and Senate simply rubber-stamp each other.

But the indolence is mostly a product of political cynicism. This has been a theme of Nebraska Sen.

Ben Sasse,

who uses his perch on the Judiciary Committee to grill court nominees on the separation of powers. In an interview, he points out that we are supposed to have a “throw the bums out” system in which every few years voters get to “hire and fire those who make the laws.” Yet bureaucrats don’t stand for election, and neither do the judges who defer to the bureaucracy’s supposed expertise. Lawmakers see only benefit in outsourcing the dirty work.

“Politicians on the left are happy to let bureaucrats run everything and to not have to own it, and politicians on the right are happy to blame someone else and not do the work,” Mr. Sasse says. If this opinion forces “Congress to step up,” he adds, “people will have more power and Washington will be a little healthier.”

Conservative Republican legislators report that this cynicism has now reached new heights. They note that their Democratic counterparts routinely write legislation that is deliberately vague, so as to give the administrative state maximum flexibility to impose programs Congress won’t take responsibility for passing. This also ensures that the federal bureaucracy—which largely shares the left’s political ideology—can continue its work even under Republican presidencies and Congresses.

Which helps explain the left’s unhinged reaction to this week’s ruling. It blew up a basket that contained too many Democratic eggs. The merit of statutory law is that it is enduring, but that takes time and compromise. Democrats chose to instead rely on a bureaucracy to impose a purer—albeit lawless—version of its agenda. The court has just thrown a red flag on that entire project. Live by the administrative state, die by the administrative state.

Don’t think the Biden administration will give up easily; its agencies will continue to try to sneak through every opening, and the court will likely have to reinforce and fill out its ruling.

But if the judiciary sticks to its guns and enforces the separation of powers, this week’s decision could prove one of the more consequential in improving the health of the republic.

Write to kim@wsj.com.

Wonder Land: Democrats always seem on the edge of pushing politics into a state of civil unrest. Images: Getty Images/The Boston Globe Composite: Mark Kelly

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Appeared in the July 1, 2022, print edition as ‘The Justices’ Message to Congress.’


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