The Supreme Court hears a case on Monday about what steps the Environmental Protection Agency can take to control the emission of carbon dioxide and other “greenhouse gases.” But West Virginia v. Environmental Protection Agency is about something more fundamental: whether Congress can shirk its own lawmaking responsibility by handing legislative blank checks to the executive branch.
A far-reaching decision could revitalize the nondelegation doctrine, which has lain dormant since 1935. First proposed by Chief Justice John Marshall in 1825, the nondelegation doctrine safeguards the Constitution’s separation of powers, which the framers regarded as essential to the protection of liberty. As James Madison wrote in Federalist No. 47, “There can be no liberty where the legislative and executive powers are united in the same person.”