In the hubbub over the Dobbs case overruling Roe v. Wade, many have overlooked the Supreme Court’s decision in West Virginia v. EPA. 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. 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.
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. If the Supreme Court had merely wanted to strike down the 2015 EPA rule, which had never gone into effect and had already been abandoned by the Biden administration, the justices could easily have done so without writing a broad opinion of historical significance to the evolution of our constitution. (READ MORE: Do Conservative Judges Really Mean What They Say About Judicial Restraint?)
The conventional grounds of statutory interpretation to invalidate the EPA rules were “legion.” The Trump administration EPA set out many of them in its decision to revoke the Obama-era clean power plan which was at issue in the case. To me, the clearest argument was that Congress had not given the federal energy regulator, the Federal Energy Regulatory Commission, authority to determine the fuel mix for retail generation at the state level, so it seems highly unlikely it intended to give that authority to the EPA.
No, Chief Justice Roberts did not need to write a major opinion of constitutional and historical significance. He could have decided the case on conventional grounds under existing law. He had been aching to write this opinion for years and consequently assigned the opinion to himself, which is significant for reasons I will explain later.
There are two competing strands of thought among conservative academics and legal theorists. Let us call one of them the reactionary school as opposed to the evolutionary school of conservative thought. The reactionary school is represented by Gary Lawson, a professor at Boston University Law School and editor of one of the leading administrative law casebooks. Gary happens to be a former student of mine, but in a civil procedure course rather than in constitutional or administrative law. I admire Gary’s work so much that I have been assigning it in my courses at the Yale Law School for the past decade, but I do not agree with it for reasons that I will explain.
Gary 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. 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. If there were any doubt about Gary’s meaning, it was clarified in a 2009 research report for the Heritage Foundation in which Gary addressed specifically whether it would be possible to go back and how to do so.
Another prominent reactionary is Philip Hamburger, an eminent legal historian at Columbia Law School, who is also a friend and someone whose work I also admire greatly. His little book on the administrative threat to civil liberties is absolutely brilliant and states the case against the administrate state succinctly. I recommend it to everyone who does not have the patience to wade through Philip’s 632-page tome, Is Administrative Law Unlawful?.
Philip sees the administrative state as repeating some of the worst abuses of English legal history under King James I, including taking away the right to a jury trial. Taking away the right to a jury trial is a common feature of many administrative law systems in the U.S. today. The Fifth Circuit Court of Appeals recently held one of them at the Securities and Exchange Commission to be unconstitutional in a case that will likely go to the Supreme Court.
Thinkers such as Lawson and Hamburger are reactionaries in the best sense of the word, namely that they would like to see our legal system go back to the way it was in an earlier era which they think was better.
I respect their point of view, and I agree that there is a lot to be learned from history. However, I believe that “history does not repeat itself, but it does rhyme,” a quote often attributed to Mark Twain although it seems unlikely he ever actually said it.
I don’t think it is possible to go back to a federal government in which Congress makes all of the significant policy decisions through legislation. The federal government today is simply too large and pervasive and regulates almost everything in mind-numbing detail. For example, one federal agency, the Centers for Medicare & Medicaid Services, has 33,000 “guidance documents” regulating every detail of medical billing practices.
Another eminent conservative legal theorist, Richard Epstein, has observed correctly that the Framers of the Constitution made a “global judgment” that the risks of “going too fast” in passing laws were greater than the risks of doing too little, and therefore they made it difficult to legislate. For that reason among others, my Yale colleague Jerry Mashaw wrote a brilliant article about why administrators should make at least some policy decisions. I’m with Jerry.
Let’s call this alternative to the reactionary point of view an evolutionary theory. It takes as its starting point that the structure of American government has and must evolve significantly since the founding in 1789; therefore, legal principles must also adapt as opposed to trying to govern in the 21st century with the exact same government envisioned by our 18th-century founders.
Granted, it is an embarrassment for the legal legitimacy of the administrative state that many of these changes were made without the benefit of explicit constitutional amendment. Yale law professor Bruce A. Ackerman has tried to rationalize that by arguing that legitimate constitutional changes can be accomplished by a series of critical elections without going through the amendment process. I’m not persuaded.
To me, the more persuasive argument is that 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. 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.
At the risk of being parochial, this debate among conservatives between reactionaries and evolutionists goes back to the Yale Law School of the 1970s where I was privileged to study, incidentally in the same class as now-Justice Clarence Thomas. (The debate may have earlier antecedents, as someone will no doubt point out in the comments below, but that’s where I first encountered it.) Two of my teachers were Robert Bork and Alexander Bickel, the two greatest conservative legal theorists of their era. They were close friends but they did not agree. Bork was the first modern advocate of going back to the original understanding of the Constitution, an idea that underlies the work of Lawson, Hamburger, and many other conservative legal theorists of a reactionary bent. Bork’s theory is a simple one: just go back to the way it was in 1789. A simple but wrong theory will often drive out a more complicated but more accurate one, a perverse aspect of Occam’s razor and the fact that our brains yearn for simple ways to model a complex world.
Bickel, on the other hand, saw himself as an intellectual descendent of Edmund Burke, who believed that government and law must evolve but in changing they should be true to the shared values and lessons of history. Bickel’s theory is actually more practical for how the Supreme Court should operate. It does, however, make judging much harder because the legitimacy of courts depends on respecting the limits imposed on them by the plausible meanings of written language. If judges go beyond those limits, they are legislating rather than judging. But within the broad meanings consistent with Constitution’s general words, courts can and should update the law to be consistent with its spirit in the current situation.
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.
What did they mean by “the judicial power” that they were giving to courts? It is important to remember that at the time of the Constitutional Convention in 1787, courts had been construing state constitutions for over a century. They had been acting like common law courts, interpreting the language of state constitutions to adapt to the challenges of their time while being true to the values and accumulated wisdom embodied in the common law.
That’s not an easy task, and not as simple as just doing whatever we imagine the Framers intended. 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. That’s probably what Chief Justice Marshall meant by his famous line that “We must never forget that it is a constitution we are expounding … intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” However, in retrospect, I do wish that Marshall had elaborated a bit more rather than assuming his meaning was obvious.
Even Justice Antonin Scalia, who is often considered the leading proponent of originalism, concedes that “freedom of the press” covers the electronic media. That is a concession that the words of the Constitution convey a principle that must be adapted to changing circumstances but at the same time cannot mean whatever people want it to mean. That’s the difficult balance that we evolutionary conservatives must strike.
Now back to Chief Justice Roberts and West Virginia v. EPA. Roberts is a conservative, but he is a Burkean evolutionary conservative of whom Bickel would be proud. He assigned writing the majority opinion to himself, probably to prevent Justice Neil Gorsuch from writing an even more extreme version of the “major questions doctrine” into binding precedent.
In the key sentence of the majority opinion in West Virginia v. EPA, the chief justice chose his words carefully: “A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”
That sentence makes clear that broad delegations of authority to make law to administrative agencies are still constitutional, so long as Congress makes clear that it intends to delegate broad powers to an agency. Scalia himself, the leading proponent of originalism on the Supreme Court, wrote the opinion upholding one such broad delegation in a 2007 decision also involving the EPA, Whitman v. American Trucking.
The big problem with the “major questions doctrine” as it currently exists is that the putative tests for when a policy question is so “major” that it requires a clear statement by Congress are so vague and open-ended that the lower courts are running riot and declaring anything they don’t like to be a “major question” that requires clearer authority from Congress.
Robert’s majority opinion in West Virginia v. EPA represents a sophisticated attempt to balance the requirement that Congress make major policy decisions with the needs of the modern administrative state for lots and lots of smaller policy decisions. We will have to wait for history to see how that works out.
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