Here, The U.S. Supreme Court Building. (Washington, D.C.)

On February 28, the Supreme Court will hear West Virginia v. Environmental Protection AgencyIn addition to potentially ominous implications for American climate change policy, this environmental case may also give what The New York Times’s Jesse Wegman recently called the Court’s “turbocharged right-wing supermajority” a chance to rework the allocation of power among Congress, the judiciary, and the executive branch. In the near term, a loss for the EPA would likely sabotage President Joe Biden’s vow to slash U.S. greenhouse gas emissions dramatically by 2030. Over time, a hard-right decision could cripple public interest regulation of a kind that has so successfully advanced American health, safety, and prosperity since the New Deal. The conservative justices appear to be pursuing their aims without regard to customary norms of judicial self-discipline. To fully understand their current campaign, however, we need to follow two stories—one about the procedural handling of next week’s case, and the other about the majority’s dubious constitutional vision.

First, the procedure story. In immediate terms, West Virginia v. Environmental Protection Agency arises out of EPA efforts to limit carbon emissions by fossil fuel–burning electrical power plants. In 2014, the Obama administration proposed—and then in 2015 issued—the Clean Power Plan (CPP), accurately described by the White House as setting “the first-ever national standards to limit carbon pollution from power plants.” Together with other administration policies, the plan aimed “to reduce premature deaths from power plant emissions by nearly 90 percent in 2030 compared to 2005 and decrease the pollutants that contribute to the soot and smog and can lead to more asthma attacks in kids by more than 70 percent.” The White House hoped the plan would “avoid up to 3,600 premature deaths, lead to 90,000 fewer asthma attacks in children, and prevent 300,000 missed work and school days.”

In short order, 27 states, 24 trade associations, 37 rural electric co-ops, and three labor unions sued in the U.S. Court of Appeals for the D.C. Circuit to block the CPP. Remarkably, however, some of these plaintiffs also asked for VIP treatment from the Supreme Court. They asked the justices to step in and block implementation of the plan even before a challenge could be argued, much less decided, in a lower court. The Court’s then-five-member conservative majority granted the application over the dissenting votes of the four liberal justices.

As the law professor Steven Ferrey noted, “No party in the matter was able to point to any previous instance” of such a ruling. Nonetheless, the Court granted the stay as part of its so-called shadow docket of procedural rulings—decisions made without full briefing or oral argument—and the majority provided no explanation for its unique stay. Without any public explanation, an unprecedented stay was imposed until the Court of Appeals ruled, and potentially beyond: If a losing party in the Court of Appeals successfully petitioned for further Supreme Court review, the stay would remain in place until the Court also rendered its final judgment.

The new Trump administration was destined, upon taking office in 2017, to imperil Obama’s ambitious climate change policies. Just over two months into his term, Donald Trump issued an executive order directing the EPA to review the CPP and, “if appropriate,” “suspend, revise, or rescind” the rule that the Supreme Court had preemptively blocked. The D.C. Circuit suspended the lawsuit against the CPP until the EPA could conclude its deliberations. Those deliberations took more than two years, during which Trump’s first EPA administrator, Scott Pruitt, was replaced by Andrew Wheeler, a former coal lobbyist. The EPA repealed the CPP on June 19, 2019. The agency said it was scrapping the plan because, its lawyers claimed, the Clean Air Act never authorized its regulatory strategy. In place of the CPP, the Trump-era EPA proposed the much less ambitious Affordable Clean Energy (ACE) rule.

After Biden took office, the EPA informed the Court of Appeals that it would not defend Trump’s ACE rule. It also announced that it would not seek to reinstate the 2015 CPP. That should have been the end of the case: With no ACE being enforced and no new antipollution rule proposed, what was left for a court to review? Yet with its now-expanded right-wing majority, the Supreme Court in October 2021 granted four petitions, consolidated procedurally into one proceeding, challenging the D.C. Circuit’s decision to vacate the ACE—that is, demanding reinstatement of a rule that the government is no longer willing to defend. The justices, it appears, would not be denied their own day in court.

Now, the story on legal doctrine. It’s bad enough that the conservative supermajority seems hell-bent on blocking U.S. climate policy. But the picture becomes even more alarming once you focus on the questions the Supreme Court has agreed to address. One of those questions—the most ordinary of the three—is a straightforward question of statutory reading. (In essence, the question is whether a statutory mandate that the EPA base its antipollution targets on “the best system of emission reduction” permits the agency to induce power plants to adopt solutions that operate beyond each power plant site or confines the agency’s ambitions to measures that can be taken at the plant itself.) The other two are questions that, if answered the wrong way, could cripple American government. One is a constitutional question involving the non-delegation doctrine. The other is a question of interpretive method: Under a newly expanded major questions doctrine, may judges reject reasonable inferences of agency regulatory authority from statutory text if that authority appears to be of extraordinary economic or social significance and the text is in any respect ambiguous?

For purposes of Supreme Court review, the critical part of what the D.C. Circuit panel majority decided in this case—then called American Lung Association v. Environmental Protection Agency—is that the Obama EPA was right and the Trump EPA was wrong. The decision did not turn on whether the original CPP had been a valid implementation of EPA’s statutory authority. The lower court decided only that the statute does authorize EPA to consider off-site measures as well as measures at each plant in setting its standards and guidelines for greenhouse gas emissions. The D.C. Circuit devoted 25 pages of its 147-page opinion to explain clearly and precisely why the text, structure, history, and purpose of the act all support the Obama EPA’s view of the scope of its legal authority.

The wild cards in the Supreme Court’s hand, however, involve non-delegation and the major questions doctrine, to which it is closely related. At its core, the non-delegation doctrine rests on an uncontroversial general proposition, namely, that a separation of powers system assumes that no branch of government will abdicate the powers assigned to it. The president cannot ask the chief justice of the Supreme Court to take over the signing or vetoing of legislation. That’s the president’s job. The judiciary cannot leave the sentencing of individual defendants to a congressional committee. That’s a court’s work. 

What is controversial—and deeply so—is whether a statute granting significant discretionary policy-making authority to an administrative agency represents the routine assignment of an executive task—or a full-scale abdication of Congress’s legislative power. The Court’s conservatives seem ready to treat any statute that vests significant policy-making (as opposed to what they call “mere fact-finding”) authority in administrative agencies as an unconstitutional “delegation.” 

The major questions doctrine is a cousin of non-delegation. It empowers the Court to impose its preferred meaning on any statute that the majority regards as dealing with issues of “vast economic and political significance.” (The implication is that statutory readings that give agencies too much discretion to adopt policies of vast economic and political significance would wind up approving unconstitutional delegations and should thus be avoided.) For example, D.C. Circuit Judge Justin Walker, in his dissent, argued that the CPP exceeded the Obama EPA’s authority because the Clean Air Act does not include “a clear statement unambiguously authorizing the EPA to consider a system of emission reduction that includes off-site solutions or [which] otherwise satisfies the major-rules doctrine’s clear statement requirement.”

Two opinions by Justice Neil Gorsuch are ill omens of what may happen in the current case. One, his dissent in a 2018 case, Gundy v. United States, was joined by Chief Justice John Roberts and Justice Clarence Thomas. In that case, the Court upheld the attorney general’s authority under the Sex Offender Registration and Notification Act to issue rules determining how that act’s registration requirements apply to sex offenders convicted prior to the law’s passage. The other is Gorsuch’s opinion concurring last month in National Federation of Independent Business v. Occupational Safety and Health Administration, which invalidated the Labor Department’s emergency temporary standard on COVID-19. This time, he was joined by Thomas and Justice Samuel Alito. Both opinions are riddled with hyperbole and a historical narrative as shallow as it is one-sided. The COVID decision in which Gorsuch concurred was joined also by Roberts and Justices Brett Kavanaugh and Amy Coney Barrett. That decision deployed the major questions doctrine, without naming it, to give plaintiffs “emergency relief” from the Labor Department’s enforcement of its COVID rule while its legality was being litigated. Such developments don’t augur well for the Biden administration’s regulatory agenda. 

Until now, the Supreme Court has invalidated statutory provisions as unconstitutional “delegations” to the executive branch only twice—both times in 1935. For more than 90 years, the Court has otherwise adhered to a consistent formulation of the doctrine, which is far from demanding. A grant of administrative policy-making authority has been deemed constitutional if the statute in question, soundly interpreted, contains some “intelligible principle” that sets discernible outer limits to the agency’s power. That principle need only be clear enough to enable reviewing courts to determine if agency action pursuant to the statute is or is not within its legally granted authority.

As Chief Justice Harlan Fiske Stone wrote for the Court in a 1944 case, Yakus v. United States, Congress’s authority to define the scope of administrative policy making is pragmatic and flexible: “Congress is not confined to that method of executing its policy which involves the least possible delegation of discretion to administrative officers.” This didn’t represent a radical change in the standard the Court had always used. Based on their careful study covering more than 2,000 federal and state cases decided before 1940, the legal scholars Keith Whittington and Jason Iuliano concluded in 2017 “that the traditional narrative behind the non-delegation doctrine is nothing more than a myth.” Since long before Yakus, they wrote, courts had been applying a deferential standard to legislative grants of executive authority.

Even Justice Antonin Scalia, the modern icon of conservative judging, regarded the non-delegation doctrine as unsuited for judicial enforcement except in the most extreme cases: “Once it is conceded, as it must be, that no statute can be entirely precise, and that some judgments, even some judgments involving policy considerations, must be left to the officers executing the law and to the judges applying it, the debate over unconstitutional delegation becomes a debate not over a point of principle but over a question of degree.”

But the current Court’s apparent disdain for broad delegations overlooks more than the many decades of judicial experience to the contrary. It also ignores the painstaking legal scholarship undercutting the idea that the founding generation regarded broad delegations as inconsistent with the separation of powers system they had just created. A pathbreaking 2021 article by the law professors Nicholas Bagley and Julian Davis Mortenson argued, based on careful historical analysis, that “the Founding generation didn’t share anything remotely approaching a belief that the constitutional settlement imposed restrictions on the delegation of legislative power—let alone by empowering the judiciary to police legalized limits.” On the contrary, “coercive administrative rulemaking was … routine throughout the Anglo-American world” prior to 1787, and “early Congresses adopted dozens of laws that broadly empowered executive and judicial actors to adopt binding rules of conduct.”

Holding the Clean Air Act unconstitutional would be an astonishing arrogation of power. Perhaps for this reason, the conservatives are more likely to express their suspicion of broad administrative policy making through the major questions doctrine. Inducing off-site emission control measures would involve so impactful a major policy change, the argument will run, that Congress could not have intended to authorize it—unless Congress included specific language in the statute unambiguously permitting (or perhaps even requiring) such a policy. 

Yet such a holding would be no less perverse. In 19 pages, the D.C. Circuit explains in detail why that doctrine ought to be given no play in the current case. First, earlier Supreme Court and D.C. Circuit opinions have already recognized “each critical element of the [EPA’s] regulatory authority” regarding air pollutants by stationary sources. Moreover, under Supreme Court precedent, “the issuance of regulations addressing greenhouse gas pollution” was “mandatory under the [Clean Air Act] because of longstanding endangerment findings.” The Clean Air Act also contains limits on regulation, including requirements that the EPA consider such factors as available technology and the cost of compliance, which means that Congress has determined a policy framework for the EPA to follow. In short, “numerous substantial and explicit constraints on the EPA’s selection of a best system of emission reduction foreclose using the major questions doctrine to write additional, extratextual, and inflexibly categorical limitations into a statute” that Congress designed to give the agency the flexibility necessary to keep standards up to date. Finally, the potential impact of an eventual regulatory scheme should not prevent the EPA from using its clearly recognized statutory authority to address the precise kind of problem it was assigned to address. As the Court observed, “Given the number and dispersion of fossil-fuel-fired power plants, any nationwide regulation of their greenhouse gas pollution that meaningfully addresses emissions will necessarily affect a broad swath of the Nation’s electricity customers.”

In addition, an important amicus brief filed by the NYU law professor and former dean Richard L. Revesz, one of the nation’s foremost environmental law scholars, makes a compelling argument that the factors urged by regulatory opponents for triggering the major questions doctrine are unworkable and fail to distinguish the CPP from many other regulations. He shows how the EPA, under administrations of both parties, has relied in the past on approaches similar to those that the agency employed in the CPP. The CPP is not so novel or unanticipated in its use of regulatory strategies that the major questions doctrine should be called into play.

If jurists like Gorsuch or Walker are to be believed, the Constitution was designed to make the exercise of federal legislative authority all but impossible. In Gorsuch’s tendentious Gundy concurrence, he writes that the Framers “believed the new federal government’s most dangerous power was the power to enact laws restricting the people’s liberty.” He cites James Madison’s Federalist No. 48, which cautions against “the enterprising ambition” of a legislative branch that, unless duly checked, may impose to “the same tyranny as is threatened by executive usurpations.” Madison, however, was not arguing against the delegation of policy-making power to the executive branch; he was arguing against allowing an overreaching Congress to take upon itself either executive or judicial power. His worry was not about a Congress assigning policy-making tasks to others, but about a Congress aggrandizing its own constitutional role.

I am a lawyer and a law professor. I don’t purport to know the best way to curb the spread of COVID-19 or reduce the emissions of greenhouse gases from coal-fired power plants. Members of Congress often feel the same way—believing deeply in the existence of serious problems, but finding them hard to address without prolonged, focused engagement by trained professionals. Their statutes are often designed to give the executive branch the flexibility to deal effectively with new and unexpected problems. This is a choice made by elected officials, which they can always amend or otherwise constrain. The idea of congressional supervision is not just high school civics boilerplate: Even in an era of legislative sclerosis, Congress must enact appropriations each year for the executive branch to function. Without rewriting statutes as complex as the Clean Air Act, Congress can prohibit the use of appropriated funds to promulgate or enforce regulatory programs it dislikes. Unelected judges should not take upon themselves the task of deciding whether Congress has already deliberated enough to justify agencies carrying out responsibilities that they have already been assigned.

Americans will know by June if the Supreme Court’s right wing is going to use West Virginia v. Environmental Protection Agency to help entrench a U.S. Chamber of Commerce–friendly view of the separation of powers. So far, the Court’s treatment of abortion, voting rights, free exercise, and presidential removal power suggests that yet more determined strides may be in the offing. I hope I am wrong. I fear, however, that the genuine complexity of separation of powers issues, along with what Jacob Hacker and Paul Pierson have justly called “American amnesia” with regard to the government’s regulatory achievements, together lay the ground for the Court—without a well-earned public revolt—to undermine the capacity of the elected branches of government to advance the public interest through sensible regulation

When Alexander Hamilton referred to the newly designed federal judiciary as “the least dangerous branch,” he was relying on the Court’s relative institutional passivity. He famously wrote, “The judiciary … has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” But the Court’s hubristic right wing now possesses both the will and a craving to participate in the “active resolution” of public controversies. As long as they can count on ideologically simpatico plaintiffs to file lawsuits against public interest regulations, the justices can forestall progressive policies by blocking change until the litigation formally reaches them for ultimate judgment. When an agency points to statutory language that, fairly interpreted, allows it to make policies costly for industry, the Court can bar the agency by insisting that Congress needs to have granted its authority with more meticulous language. 

The founding generation envisioned no such juristocracy. It is certainly not in the interests of 21st-century Americans to embrace one now.

Peter M. Shane

Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus at Ohio State University and a Distinguished Scholar in Residence at the New York University School of Law. His forthcoming book is Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency. Follow Peter on Twitter at @petermshane