The Supreme Court’s Extreme Power Grab

It is not an understatement to say that the U.S. Supreme Court now under control of five extremist zealots is out of control.  As a piece in Politico lays out, the majority is far out of touch with public opinion and the beliefs and desires of the majority of Americans. The situation is yet another example of the growing crisis in America where an extreme minority is inflicting is views and beliefs - and subverting the Constitution in the process - on the majority of citizens.  Unless the Electoral College is abolished and the U.S. Senate is restructed, the problem will likely only intensify.  In the case of the Supreme Court we now have unelected justices appointed by presidents who lost the popular vote and confirmed by a Senate that repreents a minority of Americans upending established legal precedents and long established rulings on Congress' delegation of power to regulatory agencies. It is a power grab on a massive scale by unelected individuals with little or no accountability.  This tyranny of the minority will likely only increase given the 5 or 6 justices who view the law as being whatever they say it is based on their own beliefs and prejudices.  A piece in The Atlantic looks at the situation.  Here are highlights:

The Supreme Court has become the most powerful branch of the federal government, stripping women of their constitutional rights, hamstringing states’ ability to regulate guns, and sidelining the constitutional mandate to keep religion out of government, virtually overnight. The new majority bloc flexed its power at a level so in defiance of public opinion and long-standing legal principles this term that its members must believe themselves immune to any and all accountability.

The Court’s 6–3 ruling sharply confining the Environmental Protection Agency’s ability to regulate carbon emissions from power plants is a stunning example. President Joe Biden called West Virginia v. EPA “another devastating decision that aims to take our country backwards.” . . . . From the standpoint of the separation of powers, it’s not Congress that won the power grab here, but the Supreme Court’s far-right majority.

The majority’s legal analysis ultimately centers on Article I of the U.S. Constitution, which vests “all legislative powers … in a Congress of the United States,” and Article II, which gives the president both the “executive Power” and a mandate to “take Care that the Laws be faithfully executed.” Strictly speaking, these job descriptions envision a Congress that generates laws and an executive branch that enforces those laws. But hundreds of federal agencies dot Washington, D.C., and many routinely make laws, referred to as “regulations,” because Congress gave them the power to do so.

The modern administrative state dates back to the Great Depression, when President Franklin Delano Roosevelt and a Democratic Congress created what’s been called an “alphabet soup” of New Deal agencies to enact sweeping regulatory reforms aimed at spurring economic recovery. The U.S. Supreme Court responded by striking down portions of the seminal National Industrial Recovery Act, on the theory that Congress’s transfer of lawmaking power (including the ability to enact codes of fair competition for private industry) to the executive branch violated Article I. This theory came to be known as the “non-delegation doctrine” . . . .

Following his reelection victory in 1936, FDR introduced a plan to expand the Supreme Court in a bid to outmaneuver similar attacks on his Social Security bill and the National Labor Relations Act. In a pivot known as the “switch in time that saved nine,” Justice Owen Roberts began voting with the more liberal justices on a series of issues, abandoning the non-delegation doctrine, which has not been activated by the Court since 1935.

In the near-century since, the Court has largely deferred to Congress’s choice as to who fills in gaps in legislation: agencies or courts. The long-standing working premise is that Congress can constitutionally delegate its Article I legislative power to federal agencies under a blended system of checks and balances, on the rationale that Congress lacks the political will and subject-matter expertise needed to regulate complex matters such as food and drug safety and the storage of spent nuclear fuel. . . . . So long as regulations fall within the statutory language delegating power to a particular agency, the federal courts have systematically declined to disturb that legislative-regulatory dance.

For West Virginia v. EPA, the operative statutory language lies in Section 111 of the Clean Air Act, which broadly authorizes the EPA to select the “best system of emission reduction” for power plants as part of its capacious mandate to regulate stationary sources of any substance that “causes, or contributes significantly to, air pollution” and “may reasonably be anticipated to endanger public health or welfare.”

In the minds of those in the majority, it “is not plausible that Congress gave EPA the authority to adopt on its own” the latter kind of “regulatory scheme.” The problem with this conclusion is that the statute says “best system,” with no limiting language. As Justice Elena Kagan wrote in her dissenting opinion, the majority’s limits on the EPA’s power “fly in the face of the statute Congress wrote.”

The Court does this under the guise of a brand-new mantra that has never been applied as gospel before—what it calls the “major questions doctrine.” Instead of looking at the language of the legislative handoff of regulatory power to an agency, the Court will now decide for itself whether to allow agencies to regulate. . . . . Litigation aimed at figuring out what this newly manufactured doctrine means will necessarily explode in the coming years. In effect, the Court is giving more power not to Congress, but to itself and the rest of the judiciary, under a “we know it when we see it” pretense of a standard.

But the heart of the big-picture threat lurks in Justice Neil Gorsuch’s concurring opinion, which Justice Samuel Alito joined—not in Chief Justice Roberts’s majority opinion. Without actually referencing the defunct non-delegation doctrine, Gorsuch writes that congressional delegation of authority risks legislation “becoming nothing more than … the will of unelected officials barely responsive to” the president, and that “the framers believed that a republic—a thing of the people—would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable ‘ministers.’”

Gorsuch fails to acknowledge the real irony here: The Supreme Court itself is composed of wholly “unelected officials” with life tenure, and three of its current justices were put on the Court by a president who lost the popular vote and a bare Republican Senate majority.

[I]f Justices Gorsuch and Alito manage to capture three more votes in favor of banning regulations altogether under Article I’s vesting clause in a future case (Justice Clarence Thomas is a virtual shoo-in), the practical implications are staggering. A 2018 report by the left-leaning Economic Policy Institute concluded that the benefits of regulations outweigh their costs by a 7-to-1 ratio, with a net gain to society of more than $100 billion per year, while a lack of “sensible regulations can lead to economic catastrophe and the loss of millions of jobs.”

Justice Kagan correctly protests that the “Court appoints itself—instead of Congress or the expert agency—the decision maker on climate policy” here. Nobody should be surprised if this trend continues across the landscape of federal regulation, cementing deregulation in the Constitution by judicial fiat. In Kagan’s words, “I cannot think of many things more frightening.”

The Court needs to be reformed.