How West Virginia v. EPA Changed the Administrative State

In West Virginia v. EPA, a 6-3 conservative majority held that the "major questions doctrine" requires clear directions to administrative agencies from Congress on questions of major importance to the economy.

• The fact that the case involved an Environmental Protection Agency rule to address climate change by requiring the states to shift their electrical generation systems away from fossil fuels such as coal to less polluting sources is less important than the constitutional issue of cutting back on vague delegations of the power of administrative agencies to make law.

There are two competing strands of thought among conservative academics and legal theorists:

• The reactionary school: believes that the administrative state, by which he means broad delegations of power to make law to administrative agencies, is unconstitutional under the original understanding of the document by the Framers
• Another prominent reactionary is Philip Hamburger, an eminent legal historian at Columbia Law School
• They would like to see our legal system go back to the way it was in an earlier era which they think was better

Evolutionary Implications

• The federal government today is simply too large and pervasive and regulates almost everything in mind-numbing detail.
• It is not possible to go back to a federal government in which Congress makes all of the significant policy decisions through legislation.
• The administrative state is not going away and so the law must adapt and try to ameliorate its abuses while remaining true to the spirit of the Constitution.
  1. Many legal scholars have criticized Bork’s theory of going back to the original understanding, but I think that in addition to the impracticality of accessing what the Framers actually thought about many issues that hadn’t yet arisen, what is really wrong with Bork’s theory is that he does not account for the fact that the Founders vested “the judicial power” in the Supreme Court and such inferior courts as the Congress may from time to time establish.
  2. This is very clear from a brilliant article by Gary in the Harvard Law Review in 1994 in which he announced that he considers broad delegations of power to administrative agencies to be “unconstitutional.” He then explains in a footnote that by “unconstitutional” he means not consistent with “the original understanding” by the people who wrote the Constitution and those who ratified it.
  3. The fact that the case involved an Environmental Protection Agency rule to address climate change by requiring the states to shift their electrical generation systems away from fossil fuels such as coal to less polluting sources has been featured in many reports, but important as that was, it was far less important than the constitutional issue of cutting back on vague delegations of the power of administrative agencies to make law.
  4. Constitutional Opinions administrative state,Clarence Thomas,Constitution,Constitutional Law,Constitutionalism,EPA,John Roberts,Supreme Court How West Virginia v.
  5. But it does explain “the great silences of the Constitution.” The Framers wrote in general language precisely because they wanted to allow subsequent generations to adapt their meanings to the felt needs of the times, but only to the extent that the general language would allow, just as courts had been doing for the hundred years preceding the ratification of the Constitution in 1789.
  6. In that case, a 6-3 conservative majority held that the “major questions doctrine requires clear directions to administrative agencies from Congress on questions of major importance to the economy.
  7. The case was part of a larger project by legal theorists on the right to cut back on broad delegations by Congress to the administrative state.
  8. It is not in the cards to “deconstruct” the administrative state, as vowed by Trump adviser Steve Bannon and envisioned by reactionary legal theorists like Gary Lawson and Philip Hamburger. 

 https://spectator.org/how-west-virginia-v-epa-changed-the-administrative-state/