By Joel M. Zinberg, Competitive Enterprise Institute
The Supreme Court’s decision today in West Virginia v. Environmental Protection Agency is an important brake on the administrative state that has inexorably grown since the New Deal. The Court held that in issuing new emission caps designed to remake the U.S. power generation industry in an Obama era Clean Power Plan, the Environmental Protection Agency (EPA) had exceeded the authority granted to it by Congress under the Clean Air Act. The Court concluded that this was just the latest in “a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.”
The Court held that this is a “major case” in which the agency, claimed that a little-used statutory section that had always been more conservatively interpreted “empowers it to substantially restructure the American energy market.” Significantly, in invalidating the agency action, the Court cited two recent cases in which it reversed obvious cases of administrative overreach during the pandemic.
In Alabama Association of Realtors v. Department of Health and Human Services, 141 S. Ct. 2485 (2021), the Centers for Disease Control and Prevention claimed that it had authority under the Public Health Service Act (42 U.S.C. 264(a)) to impose a nationwide moratorium on evictions of tenants. The Court articulated and applied the “major questions” doctrine: “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” A nationwide eviction moratorium certainly qualified as having vast economic and political significance, but nothing in the statute remotely addressed that sort of action. The Court therefore held that, “if a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.”
Similarly, the Court applied the major questions doctrine to invalidate the Occupational Safety and Health Administration’s (OSHA) vaccine mandate for private workers. In National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration, 142 S. Ct. 661 (2022) (quoting Alabama Association of Realtors), the Court decided (6-3) that OSHA had exceeded its authority under the Occupational Safety and Health Act (29 USC 651 et seq) by issuing an Emergency Temporary Standard requiring vaccination or testing in workplaces employing at least 100 people. The OSHA mandate impacted tens of millions of private workers and was clearly a major question of vast economic and political significance. But the OSHA Act did not plainly authorize it.
Today’s decision reaffirms that this Supreme Court takes the language and structure of the Constitution seriously and will no longer automatically defer to federal agency statutory interpretations or exertions of broad authority. Whether it is during a public health or a climate “emergency,” the Constitution places the ultimate policy making authority in Congress.
Joel M. Zinberg, M.D., J.D. is a senior fellow with the Competitive Enterprise Institute.