It is Time For Congress to Take Back its Legislative Powers

In the final day of the Supreme Court's term last Thursday, it released its decision in West Virginia v. EPA. While I do not think it is quite the bombshell some were hoping for, the decision is a major step toward gutting the power of unelected agency officials to legislate on major issues.

West Virginia v. EPA

• In 2015, the EPA promulgated the Clean Power Plan rule which gave the EPA the power to determine the emissions limit that existing energy sources (power plants) must comply with by determining the "best system of emission reduction" that has been determined for that type of energy source.
• The Court held that the EPA exceeded its authority by interpreting the clean power plan to allow rule-making that would force major shifts across the nation's power grid from coal to natural gas to renewables.
• Such decisions are proper to the legislature unless the legislature clearly delegates such authority to the agency.
  1. Article I of the Constitution is clear: “all legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” The decision by government to force a transition from one type of energy production to another is a legislative decision, and all federal legislative power is vested in Congress.
  2. The Court explains the grave problem it is addressing here: the problem of  “agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.” In this case, the EPA exceeded its power by interpreting the Clean Power Plan to allow rule-making that would force major shifts across the nation’s power grid from coal to natural gas to renewables.
  3. EPA at least limits agencies from assuming rulemaking power without express language from Congress, there is a good argument that this ruling does not go far enough and that Congress can never delegate its legislative power, no matter how clear the delegation language.
  4. But there is good scholarship arguing that the “underlying principles, framing assumptions, and text” of the Constitution strongly demonstrate that the legislative power may never be delegated to a branch of government other than Congress.
  5. They should be hired in greater numbers by members of Congress so the policy experts can advise those who are tasked by our Constitution as having “all legislative powers” granted to the federal government.

   

 

https://www.theamericanconservative.com/it-is-time-for-congress-to-take-back-its-legislative-powers/