An Unequal Liberty
Liberty does not have to mean what the Supreme Court thinks it means.
The conservative justices have a selective and destructive notion of “liberty.” In overruling Roe v. Wade last term, the Supreme Court found that the “liberty” explicitly protected by the Fourteenth Amendment’s due-process clause does not include freedom against forced childbearing. In contrast, in cases that concern the Constitution’s structural provisions creating and empowering the institutions of the federal government—provisions that do not mention liberty—the Court has wrapped itself in liberty to explain why it has acted to protect the liberty of a powerful few. Yet the liberty of the vulnerable many, which grows rather than recedes with the kinds of federal protections the Court has rejected, goes unremarked.
In the Supreme Court’s current term, it will hear several cases about the powers and structure of the federal government in which these competing perspectives on liberty become apparent. In one, the justices are being asked to drastically cut back on the EPA’s authority to control water pollution under the Clean Water Act. In two others, the underlying legal claims seek to end the political independence of administrative-law judges and to make the very notion of an independent federal agency, whose leading officials are protected from being fired by the president for personal or political reasons, unconstitutional.
These cases follow a line of recent decisions in which the conservative justices have deployed their understanding of the constitutional separation of powers in the service of a project to weaken and restructure the government. Last term, for example, the Court cited “separation of powers principles” in rejecting an EPA rule governing greenhouse-gas emissions from fossil-fuel-fired power plants. In taking a no-holds-barred view of the separation of powers, the conservative justices explained that their aim is to protect human liberty.
What is the nature of the liberty the conservative justices are trying to protect? It is, quite simply, the liberty of a powerful few to keep the government out of their business while the rest of the country suffers at their hands. Agency actions in the bull’s-eye of the separation-of-powers cases making their way through the federal courts—cases spurred on by the Supreme Court’s activism in this area—aim to address serious harm inflicted by entities such as payday lenders engaging in unfair lending practices, property developers destroying wetlands, and hedge-fund managers engaging in fraud. The freedom at stake in such cases includes more than the self-interested freedom to take liberties with the public interest. It includes the opportunities and capacities—the life—that can emerge when people are protected from wrongful harms inflicted by other people. Yet the conservative justices see only the former, stingier kind of liberty.
One can discern this narrow and skewed view of liberty in the Court’s recent cases embracing a requirement—which it has called the “major questions doctrine”—that Congress must speak super clearly if it wants to empower an administrative agency to address an issue of major policy importance. According to this doctrine, it is not enough for Congress to identify the kind of problem it wants an agency to address, to identify the agency charged with addressing it, and to provide general parameters for the agency’s decisions. It is not enough, the Court has said, for Congress to write a statute that provides a “plausible textual basis” for an agency’s authority to tackle a problem. Instead, Congress must speak with precision even on matters that are difficult or impossible to predict in advance but that require decisive action when they emerge. In making application of this requirement of extreme clarity turn on their subjective assessment of which rules are important enough, in the right way, the conservative justices are empowering themselves to pick and choose between the regulations they like and those they think run afoul of this arbitrary standard.
West Virginia v. EPA, the climate case from last term, presents a perfect example of this dynamic. Due to the Supreme Court’s surprising willingness to pass judgment on a rule that no longer had practical effect, the Court actually had in front of it two different EPA rules, issued several years apart, taking very different approaches to the massive and dangerous carbon output of fossil-fuel-fired power plants. The contrast in the Court’s reactions to these two rules exposes the Court’s biased perspective on government regulation and the kind of liberty that the Court is willing to protect.
The first rule was the Obama administration’s Clean Power Plan, which set emission limits based in part on shifts in electricity generation from coal-fired power plants to gas-fired plants and renewable energy sources. The second, the Affordable Clean Energy (ACE) rule issued by the Trump administration, identified but did not mandate several measures to reduce emissions by increasing the efficiency of individual coal-fired power plants. When it issued the ACE rule, the EPA also repealed the Clean Power Plan. The EPA predicted only “modest” (less than 1 percent by 2030) reductions in carbon emissions from the ACE rule; it had projected much greater reductions of 32 percent from the Clean Power Plan.
In the lower-court ruling reviewed in West Virginia, the D.C. Circuit invalidated both the ACE rule and the EPA’s repeal of the Clean Power Plan. The Supreme Court reversed the D.C. Circuit’s judgment on both counts. The Supreme Court also thought that the D.C. Circuit’s decision invalidating the repeal of the Clean Power Plan had the effect of reviving the Clean Power Plan, and thus justified the Court’s review of the Clean Power Plan as well as the ACE rule. By its own logic (according to which the invalidation of a rule’s invalidation brings the rule back into effect), the Supreme Court’s decision simultaneously spared the ACE rule and sank the Clean Power Plan.
In issuing each of these rules, the EPA considered the same legal question: Does the Clean Air Act empower the agency to require shifts in energy generation when setting emission limits for existing power plants? In the Clean Power Plan, the EPA answered yes. In the ACE rule, EPA answered no. The statutory language governing each rule was exactly the same. The economic and environmental consequences and the political fallout of the rules—central factors in identifying a “major question”—were mirror images of each other. Under a judicial test that denies agencies’ authority to make major policy decisions in the absence of clear language from Congress, shouldn’t the challenges to each of these rules have come out the same?
The Supreme Court, however, apparently believes that a major policy question can become a minor policy question when the agency gives an answer that the conservative justices approve of. As shown in West Virginia v. EPA, ineffective regulation is an answer the conservative justices approve of.
The same goes for no regulation at all. Two past climate cases illustrate this point. In Massachusetts v. EPA, the Court rejected the EPA’s claim that it had no authority whatsoever to regulate greenhouse gases under the Clean Air Act. Three current justices (Roberts, Alito, and Thomas) joined Justice Scalia in dissent, arguing that the statutory language was unclear and that the Court should have deferred to the EPA’s denial of authority. In a later case, Utility Air Regulatory Group v. EPA, the Court rejected the EPA’s claim of authority to control greenhouse gases under a specific permitting program of the Clean Air Act. In a precursor to the major-questions doctrine as articulated in West Virginia v. EPA, the Court explained that it was looking for clear statutory language because the underlying policy question was so important.
What was the difference between these two cases? In Massachusetts, the EPA did not want to do anything about climate change. In UARG, it did. If anything, the question the EPA answered in Massachusetts—whether it had any power at all to regulate greenhouse gases under the Clean Air Act—was far more consequential than the comparatively narrow permitting question it addressed in UARG. Comparing the conservative justices’ differential treatment of these cases, it becomes plain that their unspoken premise is that an administrative agency may indeed speak authoritatively on a major policy question, and may even get judicial deference for its decision, but only if it supplies an ideologically appropriate answer—which, for the conservative dissenters in Massachusetts, meant refusing to regulate at all.
The anti-regulatory bias of the major-questions doctrine means that the liberty the justices say they are protecting reflects only one side of the debate over regulation: the side that wants less or no regulation, not the side that needs more in order to avoid harm at the hands of other people. The Supreme Court’s liberty is mostly the liberty of the elite few—the few who have enough power and resources to inflict the kind of widespread harm that the most important regulations try to address. In this vision of liberty, there is no room to consider the freedom lost when others’ freedom to harm is unfettered.
The Court’s blindness to the kind of freedom preserved by government rules was obvious in its decision earlier this year striking down the Occupational Health and Safety Administration’s shot-or-test rule for large employers. The conservative justices shed a tear for “the lives—and health” of the “vast number of employees” who would be required to choose between vaccination against COVID-19 and testing, but declined to engage with the government’s prediction that the rule would save more than 6,500 lives and prevent hundreds of thousands of hospitalizations.
This anti-regulatory bias aligns beautifully with the deregulatory agenda of the Republican Party. However, rather than owning up to this partisan slant, the justices tell us—and maybe themselves—that the major-questions doctrine is compelled by their understanding of the constitutional separation of powers. As then-Judge Kavanaugh put it in 2017, in United States Telecom Association v. FCC, the major-questions doctrine is “a separation of powers–based presumption against the delegation of major lawmaking authority from Congress to the Executive Branch,” and the separation of powers “is the great safeguard of liberty” in our constitutional framework. The justices who have most fervently embraced the major-questions doctrine also are justices who claim to interpret the Constitution in line with the original meaning of the text at the time of ratification. A wag might ask: If, as originalists posit, the meaning of the Constitution’s structural provisions was fixed in 1789, why did it take the Court until 2022 to fully articulate, or even name, the major-questions doctrine?
The text of the structural provisions of the Constitution does not tell us that Congress may not delegate major issues to administrative agencies unless it speaks super clearly. The conservative justices have taken the spare and enigmatic structural terms of the Constitution, identifying “Legislative” and “Executive” power, and projected into them 21st-century conservative anxieties about the regulatory state. Perhaps it is not surprising that these justices have apparently convinced themselves that the white, male, elite, educated, and propertied members of the founding generation, whom they frequently channel in pondering the Constitution’s mysteries, thought like they do about the government’s role in protecting us from harm at other people’s hands. The people left out of the constitutional process—women, people of color, people without property, people who were then property in the eyes of the law—probably had quite a different view about the need for an active government and the warrant for a capacious view of liberty. The conservative justices’ radical approach to the separation of powers effectively reenacts the original exclusion of these groups from our constitutional framework.