The Supreme Court’s Extreme Power Grab

In West Virginia v. EPA, the conservative justices acted like they were handing power to the people, but in reality they were giving it to themselves.

Image of the Supreme Court facade with a black background and red glow from the inside
The Atlantic; Getty

About the author: Kimberly Wehle is a visiting law professor at American University. She is the author of How to Think Like a Lawyer—And Why: A Common-Sense Guide to Everyday Dilemmas and What You Need to Know about Voting—And Why.

The Supreme Court has become the most powerful branch of the federal government, stripping women of their constitutional rights, hamstringing states’ ability to regulate guns, and sidelining the constitutional mandate to keep religion out of government, virtually overnight. The new majority bloc flexed its power at a level so in defiance of public opinion and long-standing legal principles this term that its members must believe themselves immune to any and all accountability. The scariest thing is, they may be right.

The Court’s 6–3 ruling sharply confining the Environmental Protection Agency’s ability to regulate carbon emissions from power plants is a stunning example. President Joe Biden called West Virginia v. EPA “another devastating decision that aims to take our country backwards.” Conservatives praised the Court for narrowing the regulatory power of administrative agencies. Patrick Morrisey, the Republican attorney general for West Virginia, tweeted that his state “took on the swamp and won. Unelected bureaucrats must yield to Congress—Congress decides the major questions of the day!!”

The “Congress triumphed” argument gets the big dynamics completely wrong. From the standpoint of the separation of powers, it’s not Congress that won the power grab here, but the Supreme Court’s far-right majority.

The majority’s legal analysis ultimately centers on Article I of the U.S. Constitution, which vests “all legislative powers … in a Congress of the United States,” and Article II, which gives the president both the “executive Power” and a mandate to “take Care that the Laws be faithfully executed.” Strictly speaking, these job descriptions envision a Congress that generates laws and an executive branch that enforces those laws. But hundreds of federal agencies dot Washington, D.C., and many routinely make laws, referred to as “regulations,” because Congress gave them the power to do so.

The modern administrative state dates back to the Great Depression, when President Franklin Delano Roosevelt and a Democratic Congress created what’s been called an “alphabet soup” of New Deal agencies to enact sweeping regulatory reforms aimed at spurring economic recovery. The U.S. Supreme Court responded by striking down portions of the seminal National Industrial Recovery Act, on the theory that Congress’s transfer of lawmaking power (including the ability to enact codes of fair competition for private industry) to the executive branch violated Article I. This theory came to be known as the “non-delegation doctrine”—the idea that Congress cannot delegate its legislative power away to the executive branch. Following his reelection victory in 1936, FDR introduced a plan to expand the Supreme Court in a bid to outmaneuver similar attacks on his Social Security bill and the National Labor Relations Act. In a pivot known as the “switch in time that saved nine,” Justice Owen Roberts began voting with the more liberal justices on a series of issues, abandoning the non-delegation doctrine, which has not been activated by the Court since 1935.

In the near-century since, the Court has largely deferred to Congress’s choice as to who fills in gaps in legislation: agencies or courts. The long-standing working premise is that Congress can constitutionally delegate its Article I legislative power to federal agencies under a blended system of checks and balances, on the rationale that Congress lacks the political will and subject-matter expertise needed to regulate complex matters such as food and drug safety and the storage of spent nuclear fuel. Since a watershed decision in 1984, Chevron v. NRDC, the Supreme Court has looked to the plain language of the relevant statute to decide whether an agency was acting within the scope of the authority Congress gave it, while checking that the regulation otherwise complies with a 1946 oversight law called the Administrative Procedure Act. So long as regulations fall within the statutory language delegating power to a particular agency, the federal courts have systematically declined to disturb that legislative-regulatory dance.

For West Virginia v. EPA, the operative statutory language lies in Section 111 of the Clean Air Act, which broadly authorizes the EPA to select the “best system of emission reduction” for power plants as part of its capacious mandate to regulate stationary sources of any substance that “causes, or contributes significantly to, air pollution” and “may reasonably be anticipated to endanger public health or welfare.” Prior to June 2022, the Court primarily saw its job as limited to ascertaining whether the EPA’s regulations—here, the Clean Power Plan (CPP) proposed in 2015 under the Obama administration—fell within this handoff of the legislative baton. Does the phrase best system capture only regulation of individual plants? Or does “best system” encompass rules that shift electricity generation from source to source—that is, from coal-fired or natural-gas-fired sources to renewable sources like solar and wind?

In the minds of those in the majority, it “is not plausible that Congress gave EPA the authority to adopt on its own” the latter kind of “regulatory scheme.” The problem with this conclusion is that the statute says “best system,” with no limiting language. As Justice Elena Kagan wrote in her dissenting opinion, the majority’s limits on the EPA’s power “fly in the face of the statute Congress wrote.”

The majority postures as though its decision is deferential to Congress, and in theory, it is sending the matter back to Congress to draft something more specific. But Congress always has the power to override agency policies like the CPP with legislation. And given the existing mandate that the EPA devise the “best system,” it’s head-scratching to imagine how, moving forward, Congress would come up with delegating language that is specific enough for this Court—assuming there’s a filibuster-proof supermajority willing to do anything at all.

The Court does this under the guise of a brand-new mantra that has never been applied as gospel before—what it calls the “major questions doctrine.” Instead of looking at the language of the legislative handoff of regulatory power to an agency, the Court will now decide for itself whether to allow agencies to regulate. It vows to look to the “history and breadth of the authority” asserted by the agency as well as the “economic and political significance” of the regulation, and then speculate as to whether Congress really “meant to confer such authority”—rather than respecting the plain language of the statute itself. Litigation aimed at figuring out what this newly manufactured doctrine means will necessarily explode in the coming years. In effect, the Court is giving more power not to Congress, but to itself and the rest of the judiciary, under a “we know it when we see it” pretense of a standard.

But the heart of the big-picture threat lurks in Justice Neil Gorsuch’s concurring opinion, which Justice Samuel Alito joined—not in Chief Justice Roberts’s majority opinion. Without actually referencing the defunct non-delegation doctrine, Gorsuch writes that congressional delegation of authority risks legislation “becoming nothing more than … the will of unelected officials barely responsive to” the president, and that “the framers believed that a republic—a thing of the people—would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable ‘ministers.’” At the federal level, that “thing of the people” is Congress, which already spoke to the EPA’s authority. The EPA is accountable to an elected president. Gorsuch fails to acknowledge the real irony here: The Supreme Court itself is composed of wholly “unelected officials” with life tenure, and three of its current justices were put on the Court by a president who lost the popular vote and a bare Republican Senate majority. Although the country’s roughly 46 percent of Democratic voters can weigh in on members of Congress and presidents at the ballot box, they had no meaningful influence or representation when it came to this 6–3 majority’s preference on climate policy.

Here again is Justice Kagan: “A key reason Congress makes broad delegations like Section 111 is so an agency can respond, appropriately and commensurately, to new and big problems. Congress knows what it doesn’t and can’t know when it drafts a statute.” Yet if Justices Gorsuch and Alito manage to capture three more votes in favor of banning regulations altogether under Article I’s vesting clause in a future case (Justice Clarence Thomas is a virtual shoo-in), the practical implications are staggering. A 2018 report by the left-leaning Economic Policy Institute concluded that the benefits of regulations outweigh their costs by a 7-to-1 ratio, with a net gain to society of more than $100 billion per year, while a lack of “sensible regulations can lead to economic catastrophe and the loss of millions of jobs.” And let’s be clear: If the right-wing majority were to fully resuscitate the non-delegation doctrine, the only constitutional option would be for legislative and regulatory policy to happen in a gridlocked, dysfunctional Congress—or more likely, not at all.

Justice Kagan correctly protests that the “Court appoints itself—instead of Congress or the expert agency—the decision maker on climate policy” here. Nobody should be surprised if this trend continues across the landscape of federal regulation, cementing deregulation in the Constitution by judicial fiat. In Kagan’s words, “I cannot think of many things more frightening.”