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Op-Ed: The real target of the Supreme Court EPA ruling is the ‘Administrative State’

The Supreme Court is attempting to undermine the federal regulatory state established by Congress.

Associate Justice Brett M. Kavanaugh and Chief Justice John G. Roberts, Jr. Source - Fred Schilling, Collection of the Supreme Court of the United States, Public Domain
Associate Justice Brett M. Kavanaugh and Chief Justice John G. Roberts, Jr. Source - Fred Schilling, Collection of the Supreme Court of the United States, Public Domain

Thursday’s decision by the Supreme Court is meant to weaker the EPA’s ability to regulate plant emissions, however, it goes far beyond weakening the EPA’s ability to address climate change.

More to the point, we must look at the words of Chief Justice John Roberts and what he wrote in his majority opinion, in what he refers to as the “administrative state.” He is suggesting that federal agencies have assumed too much regulatory power, and should be reined in.

We have to remember that the Supreme Court, in all its wisdom, decided on a case about a regulation that does not exist, that never took effect. The court should never have taken this case because there is no live “case or controversy,” as the Constitution requires before the judiciary can intervene.

As Charlie Savage writes in the New York Times, The ruling represents a “substantial victory for libertarian-minded conservatives who have worked for decades to curtail or dismantle modern-style government regulation of the economy.”

Blake Emerson at Slate writes that the administrative state is the real target of Thursday’s decision, and he sees that as troubling. “The opinion undermines the federal regulatory state that Congress has established – with the court’s blessing – over the past 200 years,” he writes.

However you want to look at it, Emerson says the upshot is that “the court has struck at the heart of government agencies’ ability to protect the public.”

Emerson goes on to say, “The people have less power now to create a safe and healthy society. Instead, the court has consolidated power in its own hands to the benefit of factional economic and cultural interests.”

U.S. Supreme Court building, Washington, D.C Credit – Carol M. Highsmith Archive, Public Domain

The deconstruction of the administrative state

Shortly after Donald Trump won the 2016 presidential election, presidential advisor Steve Bannon vowed to pursue the “deconstruction of the administrative state,” signaling the new administration’s view that parts of government itself had stolen power from the American people. 

But how did the administrative state as we know it today come about? To fully understand it, we have to go back to when the Constitution was written. At that time, we had an agrarian economy spread out across 13 colonies.

Since the mid-1700s, our country has grown by leaps and bounds, requiring our government to respond to profound changes in transportation, communication, technology, economy, and scientific understanding.

Many historians cite 1933 and President  Franklin D. Roosevelt, who with the help of a Democratic Congress, enacted several statutes that created new federal agencies as part of his New Deal plan, in which he hoped to guide the country through the social and economic hardship caused by the Great Depression.

President Franklin D. Roosevelt’s New Deal plan created a number of Government agencies. Source – New York World-Telegram and Sun collection at the Library of Congress. Public Domain

However, Congress became concerned about the expanding powers that these autonomous federal agencies now possessed, resulting in the enactment of the Administrative Procedures Act (APA) of 1946, to regulate, standardize and oversee these federal agencies. The Administrative Procedures Act is found in Chapter 5 of the U.S. Code.

After President Truman signed the APA into law in June 1946, the Department of Justice compiled a manual of advice and interpretation of its various provisions. The Attorney General’s Manual on the Administrative Procedure Act was published in 1947.

Over the years following the enactment of the APA, the Supreme Court issued several decisions that promoted the applicability of the act, including decisions validating the act’s due process protections.

The APA has proved to be a durable and important force in regularizing the procedures of the federal bureaucracy. Its emphasis on transparency, fairness, and access to the courts has increased the accountability, fairness, efficiency, and acceptability of a wide range of government decision-making.

But needless to say, the court held that the EPA lacked authority to regulate the grid because this was a “major” regulatory action that Congress did not expressly authorize the EPA to take.

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Disclaimer
The opinions expressed in this Op-Ed are those of the author. They do not purport to reflect the opinions or views of the Digital Journal or its members.

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We are deeply saddened to announce the passing of our dear friend Karen Graham, who served as Editor-at-Large at Digital Journal. She was 78 years old. Karen's view of what is happening in our world was colored by her love of history and how the past influences events taking place today. Her belief in humankind's part in the care of the planet and our environment has led her to focus on the need for action in dealing with climate change. It was said by Geoffrey C. Ward, "Journalism is merely history's first draft." Everyone who writes about what is happening today is indeed, writing a small part of our history.

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