The court struck a blow at the ability of administrative agencies to solve evolving problems like climate change (Andrew Lichtenstein/Corbis via Getty Images/Minnesota Reformer)
By Ian Lewenstein
Gut-wrenching, but not soul-crushing. Crippling, but not decapitating. Disturbing, but not lachrymose. This is the general consensus of the Supreme Court’s blow against the Environmental Protection Agency’s ability to quickly and efficiently curtail greenhouse-gas emissions in West Virginia v. EPA. It’s also the general consensus of the court’s latest salvo against federal administrative regulations.
Making up what some call the fourth branch of government, administrative regulations are what oil is to a car. A car — an impressive product with thousands of individual components — can’t run without oil.
Likewise, government can’t run without administrative regulations, those minutiae-laden yet critically important rules written by subject-matter experts that affect you: Getting a professional license, eating sanitary food, enjoying clean air, running your business, working in a safe and respectful workplace. But now, at least on the federal level, your right to a functional government and the services and protections it provides may be severely curtailed.
A new Supreme Court doctrine
The court’s decision in the EPA case formally cemented a new court doctrine, one that had been whispered by experts in administrative law or that the court had previously alluded to — but not formally mentioned in a majority decision. Well, now this whisper is a booming bass, as the court firmly demonstrated in its decision opining that, in “extraordinary cases,” major questions of vast economic and political significance must be clearly authorized by Congress in order for administrative agencies to adopt rules governing these “major questions.”
This major-questions doctrine makes sense in theory. Congress is a directly elected body, while administrative agencies function through political appointees stemming indirectly from an Electoral College-elected president.
But of course, theory becomes warped by reality. Congress is now a hyperpartisan, gerrymandered body. Unless one party has the trifecta of House, Senate and presidency, we shouldn’t hold our breaths for legislation to solve significant economic and political issues, not to mention expect Congress to respond quickly to emerging issues. And, even if there were a trifecta, we encounter the filibuster in the Senate and an emboldened 6-3 conservative Supreme Court — unelected lifers, by the way — stranglehold on the judiciary.
The court’s major-questions doctrine also leads us to wonder what constitutes significant? (Furthermore: Is the major-questions doctrine explicitly stated in the Constitution? Wink wink, nudge nudge.) The word itself is a weasel word. In administrative parlance, a weasel word makes another word or statement uncertain or hollow. Take significant, for example. The word can mean one thing to one person and something entirely different to someone else. In Minnesota, significant has been disallowed in administrative rules as impermissibly vague.
Although the Supreme Court attempted to take a first stab at what constitutes significant political and economic importance, one’s first impression is that it means whatever the court thinks is too important for a federal agency to write law on; Congress surely wouldn’t allow the nation’s environmental regulator to regulate greenhouse-gas emissions from power plants.
With this new doctrine, expect to see businesses challenge a plethora of federal administrative regulations, arguing that the regulations are significant, and that Congress didn’t explicitly authorize the agency to adopt the regulations.
Even before its EPA decision, the Supreme Court had already previewed how it would rule in these challenges by striking down the Biden administration’s attempts on a nationwide eviction mortarium, and its attempts to require Covid vaccinations for millions of workers. So even more so now, expect emboldened businesses or conservatives to happily litigate — and for agencies to stop at the yellow light: Was Congress clear enough? Is the law too old or being used for novel purposes? (Though novelty in Texas abortion law is apparently acceptable.)
Stopping at yellow — while arguably a safe-driving best practice — can be detrimental, however, when it comes to administrative law. As you are probably aware, the year is 2022. Society is complex, and this complexity demands nimble and responsive government agencies drafting regulations to protect society. But with the court’s ruling, this dexterity and practicality has now been hogtied. Congress can’t come to the rescue, and courts will soon have more opportunities to further limit agency actions.
If you truly want to understand why regulations are necessary, start by reading Justice Elena Kagan’s dissent in the EPA case. Not only does she fire potshots at the majority’s rationale — while lobbing not-so-thinly-veiled mockery toward the majority for abandoning its so-called textualism when it suits them — but she also cogently explains the need for agency regulations and how yes, these agency actions are already constrained by various laws, Congress and the courts. In other words, this isn’t Rules Gone Wild.
The Supreme Court’s new doctrine also serves as an apéritif to future court efforts to hold a magnifying glass to agency actions. Although the court has long acknowledged the practicality of agency regulations, these acknowledgments are now at risk:
Congress has found it frequently necessary to use officers of the executive branch within defined limits, to secure the exact effect intended by its acts of legislation, by vesting discretion in such officers to make public regulations interpreting a statute and directing the details of its execution…. (Chief Justice “Bathtub” Taft, Supreme Court, 1928).
The Supreme Court was saying that it’s practical to delegate law-making authority to the executive branch. More important was how the court introduced the concept of Congress having to lay down an intelligible principle to govern how the executive branch can act. Over the years, the court refined this idea of an intelligible principle. And as recently as 2019, the principle was reaffirmed by the Supreme Court:
A delegation is constitutional so long as Congress sets out an intelligible principle to guide the delegee’s exercise of authority. The standards for that principle are not demanding. Only twice in this country’s history has the Court found a delegation excessive, in each case because ‘Congress had failed to articulate any policy or standard’ to confine discretion.
The court went on to say that if it were to ignore the imperative of the intelligible principle, most agency actions would be found unconstitutional for violating the separation-of-powers principle.
But in fact, this is precisely the long-held goal of conservatives and others hostile to the administrative state, as a strict interpretation of separation of powers would neuter an agency’s authority to adopt regulations; in the EPA case, Justice Neil Gorsuch — in a concurring opinion — openly gushes in his disdain toward agency regulations, stating that without the court restraining them, agencies could “churn out new laws more or less at whim” and that agencies aren’t allowed to use “pen-and-phone regulations as substitutes for laws passed by the people’s representatives.” And another justice previously remarked that following this strict separation-of-powers interpretation would force agencies to adopt “less-major or fill-up-the-details decisions.”
Luckily in Minnesota, the state’s top court has similarly established the intelligible-principle concept (in 1949) and has consistently reaffirmed it. The state’s intelligible principle emerged over regulations on barber schools. The state’s top judicial body recognized that “Legislation must often be adapted to complex conditions involving a host of details with which the legislature cannot deal directly.” To accomplish this task, our court reasoned, the Legislature must provide reasonably clear directions to guide administrative agencies.
To be clear, agencies can’t do whatever they want; there are state laws on agency rulemaking and opportunities for judicial review. But courts recognize the practicality of allowing agencies the power to adopt regulations if the state has provided such authority in the first place. This authorization doesn’t need to be so narrow and sclerotic as to preclude agency actions responding to new societal problems:
In construing this delegation, we are mindful that ‘[t]he modern tendency is to be more liberal in permitting grants of discretion to administrative officers in order to facilitate the administration of laws as the complexity of economic and governmental conditions increase.’
It could be worse (and it may soon be)
The ruling could have been worse. Much worse. While the consequences are undeniably severe for the environment and other “significant” agency regulations, many court observers were expecting the court to go further and overrule other long-standing court precedent on administrative regulations. Additionally, one prominent conservative scholar — who Gorsuch cited — believes that all agency regulations are unconstitutional. So perhaps this purportedly intrusive administrative state was granted only a short reprieve.
Small comfort, indeed. But overall, we are left with a court openly and at times gleefully hostile to administrative regulations, not to mention privacy rights, gun restrictions, Tribal sovereignty, church-state separation, and more. Our salve is that in Minnesota, the court has not followed its big sibling into the realm of fantasy as it relates to administrative regulations. When arguing the rationale for regulations, I couldn’t say it better than this:[There is] a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.
Who wrote that? Oh yeah, the once supreme Supreme Court.
Ian Lewenstein has worked for the Minnesota Legislature and several state agencies. He specializes in administrative rulemaking and plain language. His comments represent his views alone. He wrote this column for the Minnesota Reformer, a sibling site of the Pennsylvania Capital-Star, where it first appeared.
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