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Opinion The Supreme Court reminds the executive branch: Congress makes the laws

Fencing surrounds the Supreme Court on June 28. (Stefani Reynolds/AFP/Getty Images)
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Jennifer L. Mascott is an assistant professor at Antonin Scalia Law School and the co-executive director of the C. Boyden Gray Center for the Study of the Administrative State. Eli Nachmany is a recent graduate of Harvard Law School and a senior research fellow at the Gray Center.

The Supreme Court ended its term on Thursday with an important declaration: Using regulation as a shortcut to lawmaking will no longer fly. This limitation is long overdue.

The shift emerged in the court’s decision in West Virginia v. Environmental Protection Agency, a highly anticipated environmental law case about the scope of the EPA’s authority to regulate carbon emissions. The court’s conclusion will impact not only emissions, but also regulation in many key policy areas of political and economic significance. The result may be a much-needed reinvigoration of Congress’s will to reclaim its legislative prerogative.

The 6-to-3 opinion, written by Chief Justice John G. Roberts Jr., found that the Obama administration’s EPA overstepped its authority when it used a minor provision in the Clean Air Act to develop its far-reaching Clean Power Plan. The plan, which sought to regulate emissions from power plants, essentially would have shut down sizable portions of disfavored sectors of the energy industry, such as coal-powered plants. The court declared that the little-used Clean Air Act provision could not support the agency’s sweeping claim of authority to shift the power industry from coal to renewable sources.

The broader takeaway is this: If an agency tries to take significant action with national economic and political impact, the agency must identify clear statutory authority for that action to be lawful.

Congress must legislate policy requirements and grant authority through statutes empowering federal agencies to act. For decades, congressional gridlock has hindered significant legislation of this kind in response to modern problems. Instead, our nation’s lawmakers have favored headline-grabbing or less-permanent action through oversight, commissions, investigations or patchwork solutions in appropriations and emergency legislation.

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The burdens of the legislative process are ones of design. The Constitution deliberately imposes high hurdles for the passage of legislation. Yet, administrative agencies have tried to sidestep this process by shoehorning preferred policies into attenuated authorities granted under old laws, justifying them with claims of necessity or emergency.

Consider, for example, the Centers for Disease Control and Prevention’s claim of authority under a 1944 law to declare a national moratorium on evictions. Or the Occupational Safety and Health Administration’s attempt, under a 1970 law, to impose a nationwide vaccine-or-test mandate in private workplaces. In both cases, the court held that the policy was unlawful.

In West Virginia v. EPA, the court for the first time expressly identified a doctrine that limits federal agencies from claiming such broad, novel authorities by issuing regulations of vast economic and political significance. Titled the “major questions doctrine,” it posits that for a court to conclude agency action of national significance is lawful, Congress must have clearly granted the relevant authority.

The court does not go so far as to require that an act explicitly address each potential regulatory proposal with specificity. But the four corners of the underlying statutory source must, by their terms, support the agency action. This will prevent agencies from claiming ever broader power from old, vaguely worded statutes as Congress sits on its hands.

The court went to great lengths to show that this doctrine has been in place for decades, pointing to several additional past rulings. These included a 2000 decision that the Food and Drug Administration’s regulation of tobacco was unlawful and a 2006 opinion that the Controlled Substances Act could not be enforced against the prescription of medication for assisted suicide.

The practical consequences of this ruling will anger many who see agencies as essential generators of solutions to national problems. But the court’s focus on Congress is critical to democratic accountability and constitutional process. Congress must serve as the institutional actor reaching consequential policy choices by majority vote. The Constitution embeds this mandate by vesting legislative power exclusively in Congress, which comprises elected representatives from every region and state. That rich and varied representation reflects diverse geographic and cultural interests with far greater reach than the monolithic representation of interests provided by a single agency or a single, nationally elected president.

Under West Virginia v. EPA, overly general and outdated statutory language can no longer be the source of broad, novel regulatory initiatives. This holding will have far-reaching implications, potentially impacting a number of critical policy areas currently regulated under decades-old laws, including technology, telecommunications, health care and corporate governance. Lawmakers will now face greater pressure to reach policy consensus more routinely and update old regulatory schemes to address new technological and industrial innovations. Re-situating Congress as the locus of policy control better reflects democratic will and restores a more constitutional order.