The Supreme Court fundamentally rewrote America's separation of powers in its big EPA decision

[In It to Win It]

West Virginia v. Environmental Protection Agency strikes down a federal environmental regulation of power plants that never took effect, that the Biden administration has no intention of reinstating, and that would have accomplished absolutely nothing even if it had be enforced.

Nevertheless, the Court voted along ideological lines to strike down this regulation that the EPA drafted under authority granted by the Clean Air Act, claiming that it amounts to an “extraordinary” overreach by the EPA. And their decision has enormous implications both for the environment and for the federal government more broadly.

At the very least, the West Virginia decision strips the EPA of its authority to shift energy production away from dirty coal-fired plants and toward cleaner methods of energy production — although market forces have thus far accomplished much of this shift on their own, because coal-fired plants are often more expensive to operate than cleaner plants. The decision could also lead to additions limits on the EPA’s ability to regulate that industry going forward.

The West Virginia decision confirms something that has been implicit in the Supreme Court’s recent decisions governing federal agencies’ power to issue binding regulations under authority granted by Congress: When a majority of the Supreme Court disagrees with a regulation pushed out by a federal agency, the Court has given itself the power to veto that regulation — and it will do so by invoking something known as the “major questions doctrine.”

Under this doctrine, the Court explained in a 2014 opinion, “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” Thus, if a majority of the Court deems a regulation to be too significant, it will strike it down unless Congress very explicitly authorized that particular regulation.

This doctrine comes from nowhere. Last week, the Court said that abortion is unprotected by the Constitution — leaning heavily on the fact that abortion is not mentioned in the Constitution. But the the major questions doctrine is also mentioned nowhere in the Constitution. Nor can it be found in any statute. The justices made it up. And, at least during President Joe Biden’s administration, the Court has wielded it quite aggressively to veto regulations that the Court’s conservative majority finds objectionable.

The bottom line after the West Virginia decision is that agencies may still exercise regulatory authority, but only subject to a judicial veto. The Supreme Court has effectively placed itself at the head of much of the executive branch of the federal government.

Link to tweet

[delisen]

1. This would make the uS government a dictatorship, would it not?

How does that relate to our consent to be governed?

[In It to Win It]

2. Ruled by an oligarchy of the Supreme Six

[unblock]

3. As scarily broad as this judicial overreach appears, I'd say it goes beyond that

Republicans have stripped the courts of all pretense of justice, objectivity, etc.

In terms of raw power, it's a life-tenured tribunal that by majority vote can decide any case before it any way it wants.

It doesn't have to give a reason.

If it does give a reason, it doesn't have to be bound by any particular principles or precedents.

The only restriction they appear to impose on themselves is that they suggest they might not try anything too blatant.

But they're saying if there's any scope to twist the words of laws or the constitution to their liking, they'll use that as a flimsy excuse to vote the way they want.

And if they can't find a way to do that, well, maybe they will just decide however they want anyway and just won't provide an opinion.

[czarjak]

4. I hate to admit HE was right, but I'm sick of the winning.

[elleng]

5. The "major questions doctrine" holds that courts should not defer to agency statutory interpretation

that concern questions of “vast economic or political significance.” The Supreme Court justifies this limitation with the non-delegation doctrine.

The major questions doctrine is generally traced to the U.S. Supreme Court's 2000 decision in FDA v. Brown & Williamson Tobacco Corp.

https://crsreports.congress.gov/product/pdf/IF/IF12077

Out go administrative agencies.

[dalton99a]

6. Yep. The Six Ayatollahs have hijacked our government and declared themselves supreme rulers for life

[In It to Win It]

7. I like the

name, Six Ayatollahs.

I've been using the Supreme Six