Column: Catching Air
Government agencies, run by thousands of unelected, unaccountable and mostly unreachable bureaucrats, increasingly affect nearly every aspect of American life. We are forced to comply with burdensome IRS requirements. Businesses struggle under onerous EPA rules.
Most recently, we’ve seen heavy-handed vaccine mandates imposed by OSHA and the Department of Health and Human Services (HHS.) And that is just the tip of the iceberg. There are hundreds more federal and state agencies.
Ronald Reagan joked that “The nearest thing to eternal life we will ever see on this earth is a government program.”
Supreme Court case- West Virginia v. EPA
The Supreme Court is being asked in the case of West Virginia v. EPA (decision expected this summer) to limit the ability of unelected government agencies to run our lives. This case involves a challenge to the Biden administration’s anticipated carbon emission regulations that would set national energy policy… yet another attempted “workaround” by the president and his agency to impose rules on the country that the American people, represented by Congress, do not want. If you think the price of gas is high now, just wait.
Where do government agencies get their legal authority anyway?
Each government agency derives its legal authority from whatever Act of Congress created that agency. Our elected representatives in Congress delegate some of their authority to the unelected “experts” at the agency. These agencies always start with noble ideals, but then they multiply and grow relentlessly over the years. Now there are literally hundreds of federal agencies and commissions (456 according to a Google search), not to mention state government agencies. The vast majority of the “laws” in America consist of “regulations” imposed on us by these unelected, career bureaucrats.
This problem has been exacerbated by the Supreme Court’s 1984 decision in the case of Chevron v. Natural Resources Defense Council, requiring courts generally to defer to a government agency’s interpretation of whatever statute it administers. This significantly limits the court’s ability to second-guess an agency’s authority to make or interpret its own regulations.
With so many agencies, ever-increasing budgets, the natural propensity of governments to expand, and bureaucrats focused on protecting their own jobs, what could go wrong?
Lest you think these agencies are well-run, a 2020 article in Forbes magazine reported that the 20 largest U.S. federal agencies admitted to $2.3 trillion in improper payments just since 2004. These bloated bureaucracies are not accountable to us as citizens and their regulations have a profound effect on our freedoms. Congress sets each agency in motion with a general mission statement, but after that the agency pretty much decides for itself how to operate, and the Court system has generally allowed that to continue.
The Supreme Court and the “major questions doctrine”
The Supreme Court in West Virginia v. EPA will be addressing a fundamental legal issue… Who governs the major issues of our day, unelected bureaucrats at the agencies or the people’s representatives in Congress?
The Court in the West Virginia case is likely to focus on a legal doctrine called the “major questions doctrine,” requiring federal agencies to show explicit authorization from Congress, not merely “implied” powers, before they can make policy decisions regulating matters of “vast economic and political significance.”
Who governs the major issues of our day, unelected bureaucrats at the agencies or the people’s representatives in Congress?
Petitioners in the West Virginia case are challenging the EPA’s attempt to exploit a rarely used, ancillary provision of the Clean Air Act to justify a fundamental reshaping of the nation’s electricity grids and de-carbonizing of major sectors of the economy. The issue is whether the EPA’s delegation of power from Congress gave it the power to decide such major policy questions.
A related legal issue is the “non-delegation doctrine,” the idea that Congress cannot simply pass off its legislative powers to other institutions. After all, we vote for our representatives in Congress; they are accountable to us, so they should be the ones making the big policy decisions. Congress violates the non-delegation doctrine if it gives regulatory authority to an agency without providing an “intelligible principle” to guide the agency’s exercise of that authority.
The Supreme Court applied the major questions doctrine in one of the recent Covid vaccine mandate cases, blocking an OSHA vaccine mandate that would have forced involuntary vaccinations on 80 million American workers. Unfortunately, the Court refused to block a separate vaccine mandate from the Department of Health and Human Services (HHS) affecting 10 million hospital workers, finding that mandate to be within the agency’s purview. Sadly, the Court in the HHS case failed to address other legal issues that should have been sufficient to invalidate the vaccine mandate, but that is the subject of another article.
The major questions doctrine was also applied by the Court in 2021 to block a moratorium on tenant evictions imposed by the CDC (Centers For Disease Control), finding in that case that landlord-tenant issues were outside the CDC’s sphere of authority.
The major questions doctrine is starting to gain traction in the Supreme Court, with some potential for limiting future government agency overreach. Unfortunately, the members of the Court are far from united in their approach to these cases so the results in future cases are uncertain. There is also some chance that the Court in the West Virginia case will simply punt on the issue for now for procedural reasons.
How will the Court rule?
Application of the major questions doctrine in West Virginia v. EPA would be a significant step, even though this doctrine cannot by itself stop agencies from making excessive regulations on matters that are more clearly within their purview. The oral argument before the Court last month did not reveal any clear leaning by a majority of the Justices so we’ll see what they say in June. In any event, there is a lot more work to be done to rein-in our ever-expanding government.
David G. Bjornstrom is a member of the U.S. Supreme Court bar and retired California attorney at law with 38 years specializing in business, estate and... MORE »