Nipping at the Heels of the Administrative State

Despite the fact that the Constitution sets forth three branches of government, each with discrete powers and limitations -- the executive, legislative, and judicial -- various agencies, boards, bureaus, departments that today make up the federal administrative state often render the roles and powers of those branches nugatory. The Constitution’s checks and balances which provide limits on the three branches often are unavailing when it comes to the administrative operations. In effect, citizens’ votes are worthless -- who voters elect or what policies they prefer, the head of agencies like the EPA call the shots. No matter that candidates for public office talk about restoring constitutional democracy and reining in the state, without some fundamental changes we will remain serfs under the power of unelected officials and bureaucrats. Instead of asking candidates boxers or briefs questions, we must demand they that tell us how they’d assure that legislation which hands over extraordinary powers to a federal bureaucracy (such as the Clean Air Act, the Endangered Species Act, and ObamaCare) would be reformulated, abolished, or vetoed to limit the discretion of the administrative state and devolve more regulatory powers to elected state officials more accountable to citizens and their views.

Unlike Germany, for example, in the early years of the republic, the United States had no large body of administrative law, merely locally passed laws and regulations -- licensing of certain professions and establishments, inspection of goods, for instance. It wasn’t until 1887, with the establishment of the Interstate Commerce Commission to regulate railroads, that the notion of regulating through federal agencies took hold, the justification being the greater complexity of the issues and the need for flexibility and expertise. Courts generally were permissive about oversight of regulatory agency actions, giving them wide latitude, and the agencies, in turn, respected their limitations and did not act before statutory grants to do so. Congress kept delegating more power to the agencies over time, but as early as 1935 men like Edward L. Meltzer in an article titled  “The Growth and  Development of Administrative Law', warned:

While the impossibility of measuring the multiplicity of factors is obvious, there is grave reason to well consider whether we should sacrifice, in even seemingly minor details, the fundamental principles of our government, substituting therefore the more flexible, less certain justice of our administrative system.

The delegation of broad powers to the bureaucracy is now clearly out of hand.

In recent years, laws like ObamaCare, the Endangered Species Act, and the Clean Air Act seem little more than blank checks for unelected officials to expand their jurisdiction. In the process they also too often act as legislators, judges, enforcers, and prosecutors, and just as often, it seems that the slow-moving judiciary is by turns too deferential to the unelected bureaucrats or is unable to remedy administrative branch overreaching.

The Supreme Court this week, in an extraordinary step occasioned doubtless by the EPA’s arrogant flaunting of its power to evade judicial control, did nip that agency’s ever-expanding powers, and they did so by the narrowest of margins even though the record clearly warranted that action. It remains to be seen whether this is a harbinger for the judiciary to cease its overly accommodating approach to the federal bureaucracy.

The Clean Power Plan (CPP) was a far-reaching effort by the Environmental Protection Agency (EPA) to control greenhouse gas emissions from coal-fired power plants under the Clean Air Act (CAA). If implemented, the CPP would have closed hundreds of coal-fired plants across the country and increased the production of wind and solar power, which are significantly more expensive to produce. The CPP was challenged in court by energy companies, industry groups, and a coalition of 29 states, led by West Virginia. The litigants filed multiple applications for a stay, which would block the CPP from being implemented while the case proceeded.


A three-judge panel on the D.C. Circuit Court of Appeals unanimously voted to deny the stay last month, and it was appealed to the Supreme Court, which, in a 5-4 ruling with the liberal Justices (Ginsburg, Breyer, Sotomayor, and Kagan) voting against, agreed to grant the stay. A stay is best understood as hitting the “pause” button, and not the final step in the litigation, but it does prevent the CPP from being implemented while the case proceeds.

This case was the first time the Supreme Court had granted a request to stay a federal regulation while it was being reviewed by a federal appeals court. As Jonathan Adler at the Washington Post noted, the ruling indicates that the Court has concerns about the EPA’s legal authority to impose the CPP, which “is based on a fairly aggressive reading of the relevant provisions of the Clean Air Act, most notably Section 111.” In a follow-up article at the Post, Adler described the legal challenges as attacking the EPA not just for improperly exercising their legal authority, but as arguing that the EPA lacked any authority to impose the CPP in the first place:


The Court’s order was extremely brief, and offered no explanation for their decision, but a plausible answer may be found in another case challenging an EPA regulation. The EPA has “pulled this stunt several times.”


In Michigan [v.EPA], the Supreme Court eventually ruled that the EPA had in fact violated the CAA and remanded the case back to the D.C. Circuit, but the regulation in question had not been stayed during the years of litigation. This allowed the EPA to argue to the D.C. Circuit that most plants were already in compliance with the regulation or nearly there. As a result, the D.C. Circuit allowed the regulation to remain in effect, even though the Supreme Court had said that it was unlawful.

Basically, the EPA was allowed to force power plants to incur substantial compliance costs — an estimated $10 billion a year — before the Court ruled the regulation was unlawful, and then they got away with it because the damage was already done. 

Jim Lakely at the Heartland Institute’s blog explains further:

The U.S. Supreme Court (SCOTUS) did something remarkable on Tuesday: It momentarily respected the separation of powers and finally shouted “ENOUGH!” to the lawless rule of the Environmental Protection Agency. SCOTUS issued a stay on Obama’s “Clean Power Plan,” which is a radical law-by-decree scheme to do nothing less than put this nation’s enormously complex energy-delivery system into the hands of central planners in Washington.


Here are the top three take-aways of this historic moment in SCOTUS history.

1. Ding, dong, the Clean Power Plan is dead. With this stay, the rule is suspended until President Obama is out of office. On the fastest of tracks, SCOTUS will hear arguments this summer and issue a ruling in December (after the election) or in January (after a new president is inaugurated.) Even if the EPA “Clean Power Plan” rule is upheld, the next Republican president will cancel it. And while it may be likely that a President Hillary Clinton would keep that rule in effect, I don’t think that’s a guarantee. Hillary would want to put her own stamp on a climate agenda, not merely rubber stamp Obama’s. And if she has any hope of setting her own climate agenda, a Republican Congress will demand she start over on this front. That said, it is not likely that SCOTUS would stay the ruling and then let it go back into effect. This extraordinary move is only justified if the Court thinks the plaintiffs, who want the Clean Power Plan nullified, are most-likely to prevail.

2. The Paris Climate Agreement from COP-21 is now “all dead,” instead of “mostly dead”.


[Obama] left Paris saying: It doesn’t matter that the Paris Agreement isn’t a treaty. It doesn’t matter that there are no enforcement mechanisms. I will instruct the EPA to essentially outlaw coal-fired power plants in the United States over the next decade. And because the EPA’s rule-making is almost never overturned -- by either a court or a subsequent administration -- this will be the “law of the land” in the United States due. So let it be written! So let it be done!


3. SCOTUS has had enough of Obama Imperialism.


As the applicants for the stay noted in their brief: After SCOTUS ruled in 2015 that EPA was abusing its rule-making authority under the Clean Air Act, the EPA bragged on its own blog that the decision was moot. EPA knew that industry would be compelled to operate under the assumption that the rule would be upheld. To do otherwise was foolish -- not only from a business stand-point (can’t be caught flat-footed compared to competitors), but a legal one (we’ll be liable if we don’t comply by the deadline). In other words, EPA spiked the football and said, explicitly, that SCOTUS doesn’t matter --

In short, EPA extracted ‘nearly $10 billion a year’ in compliance from power plants before this Court could even review the rule… Where did power plants get that $10 billion? From you and me, the consumers of electricity. Obama’s Clean Power Plan is not a rule that punishes Big Energy corporations. It’s a rule that punishes you and me, the consumers of the energy we need to live. Remember that the next time you plug in your iPhone or hear your heat pump kick in.


A rule as sweeping, significant, and expensive to consumers as the Clean Power Plan must originate in Congress, duly pass, and be signed by the president. Or, if part of a treaty, it must be submitted to and approved by the Senate. I think we can now expect (or at least hope) that SCOTUS will finally uphold that basic constitutional principle. We should hope Justice Antonin Scalia gets to write the majority opinion, and not merely contribute a biting concurring opinion. This decision needs to really sting. Not to get our hopes up, but this is shaping up to be a very rare judicial victory for the rule of law over the rule of bureaucrats and an imperial president. But we need many, many more to turn the ship of state even remotely toward Constitutional governance after eight years of Obama’s rule-by-decree.

This is to be sure a big step in the right direction, but to keep this from being an anomaly -- to halt and reverse the administrative state (the Leviathan fourth branch, if you will) we need to elect Congresses that retake their authority by passing bills which grant only limited discrete powers to the federal bureaucracy, presidents who respect the right of the governed to have their views respected and their interests, including their interest in the predictability of law, protected, and a judiciary which stops the inexorable overreaching of the federal administrative state.

With the news that Justice Scalia has died this weekend, reining in the Administrative state will become even harder and the outcome  of the general election of even greater import. At a minimum Congress must not even consider rubber stamping an Obama-picked successor to the Court. It must seriously examine any nominee's position on reducing the power of the bureaucracy and reject anyone who won't follow in Scalia's path.

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