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It is Time For Congress to Take Back its Legislative Powers

Congress does not need to wait for the Court to decide that delegation of legislative authority is unconstitutional after all.

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(Nora Yero/Shutterstock)

In the final day of the Supreme Court’s term last Thursday, it released its decision in West Virginia v. EPA. After several exciting weeks where the Court made significant rulings on abortion, religious liberty, and firearms, pundits were projecting that West Viriginia v. EPA might provide one more landmark decision before the end of the term by scaling back the power of administrative agencies to make law. While I do not think it is quite the bombshell some were hoping for, the decision is a major step toward gutting the power of unelected agency officials to legislate on major issues.

The legal posture of the case is rather complicated, but the basic facts are simple enough: in 2015 the Environmental Protection Agency promulgated the Clean Power Plan rule. The rule gave the EPA the power to determine the emissions limit that existing energy sources (power plants) must comply with by determining the “best system of emission reduction” that has been determined for that type of energy source. 

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At issue was the EPA’s use of this rule in the regulation of coal and natural gas-powered plants. The EPA determined three measures that would constitute the “best system of emission reduction” for these types of plants. The first was essentially a process of burning coal more cleanly by improving the heat rates at which it was burned. This was a legitimate application of the power to make rules regarding the “best system of emission reduction.” But the other two measures were substantially different and involved “generation-shifting,” laying out a plan to shift the power grid from coal to natural gas, and from natural gas to “renewables” such as wind and solar power. 

The Court was faced with the question of “whether restructuring the Nation’s overall mix of electricity generation, to transition from 38% to 27% coal by 2030” falls within the EPA’s power to determine the “best system of emission reduction” that has been determined for these types of power plants. The Court held that the EPA exceeded its authority. In particular, the Court explained the importance and applicability of the “major questions doctrine.” Pointing to prior precedent, the Court notes it should look with skepticism on an agency’s claim to rulemaking power in extraordinary cases where major economic decisions are being made. In such cases, an “agency . . . must point to clear congressional authorization for the power it claims.” (internal citations omitted). The Court explains the grave problem it is addressing here: the problem of  “agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.” In this case, the EPA exceeded its power by interpreting the Clean Power Plan to allow rule-making that would force major shifts across the nation’s power grid from coal to natural gas to renewables. Such decisions are proper to the legislature unless the legislature clearly delegates such authority to the agency. The legislature made no such clear delegation in this case. 

Understandably, those pushing for a forced green energy transition in this country are dismayed at the outcome. But outcomes aside, this ruling is good precedent for the republic. Article I of the Constitution is clear: “all legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” The decision by government to force a transition from one type of energy production to another is a legislative decision, and all federal legislative power is vested in Congress. The Court in West Virginia v. EPA at least makes it clear that if Congress delegates major decision-making authority to an executive agency, it must do so very clearly. But there is good scholarship arguing that the “underlying principles, framing assumptions, and text” of the Constitution strongly demonstrate that the legislative power may never be delegated to a branch of government other than Congress. Our republic very intentionally checks the threat of tyranny by a strong separation of powers. The legislature makes the law, the executive enforces the law, and the judicial branch interprets the law. The founders of our country and all who are cautious about the threat of tyranny work hard to maintain separation of powers.

Executive agencies like the EPA are part of the executive branch. It is quite dangerous to allow the same branch that executes the law to also make it. So while West Virginia v. EPA at least limits agencies from assuming rulemaking power without express language from Congress, there is a good argument that this ruling does not go far enough and that Congress can never delegate its legislative power, no matter how clear the delegation language.

Practically, it should be obvious that it is better for the people to have elected legislators enact legislation, rather than have major laws created by unelected bureaucrats working in executive agencies. It is Congress’s job to make federal laws and we should make them do it. But there is a common and legitimate criticism: most members of Congress “lack the technical and policy-relevant knowledge needed to understand the implications of legislative proposals.” Our legislators are not experts on the environment, the tax code, or most other complicated policy areas in which they make law. I believe there is a simple and effective alternative to delegating difficult legislative decisions to “experts” in the executive agencies: do not eliminate the input of experts in the legislative process, but shift the experts from working in rulemaking agencies to working as congressional staff members. 

The entire House of Representatives has about 9,000 staff members as of 2021. That is a 14 percent decrease since 2009. This 9,000 employee figure includes the staffers who work directly for one of the 435 representatives, as well as in leadership offices and House committees, in both policy and non-policy positions. By way of comparison, the EPA alone has over 15,000 employees. As cases like West Virginia v. EPA begin to chip away at the ability of Congress to delegate difficult legislative decisions to “experts” in executive agencies, perhaps this transfer of staffing numbers is a simple solution. Experts in particular policy fields need to be involved in the making of complex legislation. But these experts currently occupy the wrong positions. The policy experts belong under Congress as advisors, not after and above Congress as the ultimate rulemakers. 

Congress does not need to wait for the Court to decide that delegation of legislative authority is unconstitutional after all. It is up to Congress itself to take back its legislative authority, and it can do so because it makes the delegation laws and controls the purse strings of the federal government. Congress ought to repeal its statutes delegating legislative duties to administrative agencies, defund the policy-making agencies, and reallocate resources to increased staffing of congressional offices and committees. The proper role of policy experts is as advisors rather than unelected rulemakers. They should be hired in greater numbers by members of Congress so the policy experts can advise those who are tasked by our Constitution as having “all legislative powers” granted to the federal government. These policy experts don’t necessarily need to go, but they need a job change. May West Virginia v. EPA be a step toward the de-vesting of these legislative delegations, and may Congress hire the advisors it needs and take back its constitutional duty of making the law rather than delegating that duty to bureaucrats.

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