By Alan Neff and Caroline Fredrickson

For the past five months, including the recent midterm elections, much of the nation’s attention has been focused, understandably, on the legal, social, and political ramifications of the demolition of Roe v. Wade by the Supreme Court in the Dobbs case. However, another decision from the Court’s last term—West Virginia v. EPA—ought to alarm Americans who care about climate change, environmental protection, and democracy.

The EPA case is a fresh warning that the dominant Federalist Society bloc on the Court probably will sharply curtail the authority of Congress and the President to use administrative agencies to help operate a national government in complex, evolving domestic and international environments. While the EPA case is wrapped in dry legal language about “separation of powers,” “the nondelegation doctrine,” and “major questions,” the Court’s current majority can use cases like EPA to hamstring the federal government.

“Separation of Powers” is a core pillar of the American constitutional system. It supposedly means that the Constitution empowers the Congress to pass laws, the President to enforce these laws, and the Supreme Court to decide whether Congress or the President has lawfully or unlawfully exercised their constitutional powers. There are overlapping spheres of authority, but this is the basic constitutional division of labor.

No delegation for you

Consequently, the Court has limited agency authority from time to time by holding that the Constitution’s separation of powers denies Congress the power to delegate too much of its law-making authority to the President or specific federal agencies. This is the “nondelegation doctrine.”

That said, the real world requires a nation’s government to operate with efficient flexibility to avoid extinction, stagnation, or absurd outcomes that undercut its public legitimacy.

So, to enable the government in recent decades, the Court has often deferred to a federal agency’s interpretation of its Congressional mandate. (That’s “Chevron deference,” per the NRDC v. Chevron case of 1984.) After all, an agency is steeped in its enabling law via its day-to-day work and communicates frequently and directly with Congress on its activities, and Congress can investigate an agency and amend pertinent laws if it thinks an agency has misread its mandate.

That is changing. The Supreme Court could overturn Chevron soon—or narrow its application to the point of irrelevancy.

"A narrow and reactionary vision"

In recent years, the current majority of the Court has enforced a narrow and reactionary vision of separation of powers—at least when it perceives Congress or agencies as overstepping their bounds. For example, in this year's EPA decision, Chief Justice Roberts, writing for himself and Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, denied to EPA the power to push the energy-utility sector toward increased investment in cleaner, renewable energy sources. Roberts, et al, found the Congressional delegation under which EPA was acting to be too ambiguous when measured against the “major question” of the potential economic costs to the energy industry.

In EPA and other recent cases, the Federalist Six on the Court has broadened the nondelegation doctrine. It has signaled it will block agency action where the Court finds that “major questions” of public policy are involved and, in the Court’s view, Congress has not been sufficiently specific in telling an agency how it can act, or even if the agency can act, on the major question(s).

Think about this for a moment: the Court has concluded it may find a question of public policy to be so important that Congress must provide more specific instructions to executive-branch agencies—even where Congress has not decided that an agency needs more direction.

This heightened judicial second-guessing of Congress and administrative agencies starkly differs from the Court’s treatment of purported ambiguities in legislation where Congress directly empowers federal courts to enforce laws to address public issues. The Court has unhesitatingly developed the content of, for example, anti-discrimination law and bankruptcy law, without pausing to consider whether this is judicial or legislative work.

However, federal statutes empowering direct delegations to the courts can be just as artlessly—or artfully—ambiguous on significant issues as are delegations to administrative agencies. Yet, the Federalist Six has not explained why a delegation to an agency raises more concerns about separation of powers than either an aggressive assertion by the Court of the power to decide what is a “major question” or the inking-in of details of major statutes.

"Reactionary Retrenchment"

Of course, this reactionary retrenchment on administrative delegation is happening because the Supreme Court has increasingly been populated with Justices who want to reduce the role and power of the federal government. President Trump’s three Supreme Court appointments created a super-majority of Justices who are skeptical of, if not outright hostile to, pro-regulation decisions on federal, state, and local-governmental levels.

Empirical evidence indicates the Court has moved aggressively in this direction. In 2019, Senator Sheldon Whitehouse (D-RI) published a study of 78 5-4 or 5-3 decisions of the Court between 2005 and 2018 where no Democratic appointee was in the majority. He concluded that, in 73 of the 78 decisions (93.5%), the 5-judge majority favored outcomes supported by “…conservative and business interests and Republican donors…” As to federal regulation specifically, “In 33 [of the 78 cases] cases…the Roberts Five…limited the ability of government agencies to regulate corporate acts; and they have made it harder for individuals harmed by corporate acts to have their rights vindicated in court.”

(Note that this study was completed before Justice Ginsberg passed away and President Trump and a Republican-controlled Senate replaced her with Justice Amy Coney Barrett.)

Without any evident self-awareness, Chief Justice Roberts, and Justices Thomas, Alito, and Barrett have recently complained about the substantial decline in public approval of the Court. The negative sea-change seems entirely justified when the Court’s decisions show predictable consistency across cases, issues, facts, and parties.

There is a solution

For this kind of judicial behavior, two powerful remedies are available—but only when Democrats control Congress: withdrawing jurisdiction from the courts to adjudicate cases under certain laws ("jurisdiction-stripping”) and adding Justices to the Court. Both tactics have been used in the past, and both may again be necessary.

So, in 2024, Democrats will have to preserve their majority in the Senate and recover control of the House if they want to make these changes—another reminder that voting is central to shaping the direction of our government.