In ruling the regulations for CO2 emissions written and enforced by the EPA went well beyond the vague laws passed by Congress, the SCOTUS took an important step to rein in America's sprawling administrative bureaucracies.
Debate over the decision goes to the heart of how we as Americans rule ourselves. The left sees DC’s administrative apparatus as “rule by experts” and vital to our technologically complex society, favoring a modern version of Plato’s philosopher-kings, those who know the people’s needs far better than the people themselves.
Conservatives (& populists) have no faith in philosopher-kings and certainly not in mostly law school trained mid-level careerists. They see the bloated administrative state as undemocratic and thus illegitimate, unless the administrators are carrying out detailed legislation, passed by representatives and signed by the president.
Conservatives see the metastasizing administrative state as violating two critical Constitutional precepts. First, DC bureaucracies have basically become an unelected – and poorly controlled – fourth branch of government. Second, their centralized power has slowly, inexorably crushed the Constitution's federal structure, which leaves most lawmaking to the states.
The left lauds this transformation, which it rightly sees as the culmination of Woodrow Wilson’s vision to replace the antiquated “Founders’ Constitution” with a “Living Constitution” adapted for neoteric times. Today’s progressives follow in his path without saying the quiet part out loud.
Conservatives respond that progressive judges have gradually achieved his goal by jettisoning constitutional restraints and evading well-established mechanisms for amending the constitution. It has been a multi-pronged attack: bureaucratic overreach, endorsed by Democrats in Congress, and approved by the courts.
Debating this overreach goes well beyond the court’s carbon emissions ruling, which underscores two other basic features of American politics, both of which deserve more attention. The striking feature of the dissents by liberal justices as well as the public demonstrations that followed is their single-minded focus on policy outcomes, with little concern for how the outcomes are reached.
Yet established, legal procedures are essential to our “ordered liberty.” Those procedures matter even more when they are mandated by the Constitution. That is the core justification invoked by the court’s conservative majority, not only for its EPA ruling but also those on guns and abortion.
But focusing solely on the policy impact of court decisions turns federal judges into legislators. The courts’ constitutional task is to rule on the law’s meaning & follow well-established procedures in doing so. The job of bureaucrats is to administer well-defined laws, do so fairly, & as necessary, fill in small, technical gaps in the legislation. They should leave lawmaking to elected officials.
That brings us to a final, crucial & largely overlooked point about the EPA ruling: The constitution says Congress cannot delegate its role, but that’s what it does when it passes broad, vague laws & asks (or allows) fed agencies to complete them. That’s what the court rejected in the EPA ruling.
The ruling produced a bizarre spectacle: Congressional Democrats saying “Please don’t return that authority to us.” Why? Because they want to avoid responsibility for laws they pass (or fail to pass). They’ve been shirking for decades, weakening their own powers, and they want to continue.
Dem lawmakers’ evasion matters as it undermines the Constitution’s basic logic for avoiding tyrannical, unaccountable government power. That logic relies on separation of powers and the assumption each branch will rigorously fight to protect its territory. Federalism works the same way. Such sovereign power sharing works only if the separate institutions defend their domains.
That's not what DC Dems & their defenders do. Immediate policy outcomes are all they really care about. The same is true for many Republicans & independents. Separation of powers, federalism, and established legal procedures such as counting electoral votes and the peaceful transfer of power, are our constitutional republic's load-bearing walls. We chip away at them at our peril.
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