WASHINGTON, DC – Following the Supreme Court’s ruling today in West Virginia v. Environmental Protection Agency, Constitutional Accountability Center President Elizabeth Wydra issued the following reaction:

This ruling is incredibly ominous for the ability of the federal government to protect our environment. Worse still, by its reliance on the made-up “major questions” doctrine, the Court’s conservatives have taken significant strides toward dismantling the ability of modern government to function effectively at all.

The Court’s conservatives have ignored the original understanding of the Constitution, which contains no prohibition on delegations by Congress to enforce its commands, either directly or through a “major questions” doctrine. As Justice Kagan explained in dissent, echoing a brief we filed for scholar Julian Davis Mortenson, “the kind of agency delegations at issue here go all the way back to this Nation’s founding.” At that time, legislative delegations were pervasive and uncontroversial. “The records of the Constitutional Convention, the ratification debates, the Federalist—none of them suggests any significant limit on Congress’s capacity to delegate policymaking authority to the Executive Branch.” And early practice shows beyond doubt that the Founding generation accepted the use of general statutory language to confer broad delegations of authority, directly contrary to the rule that today’s conservative majority imposes. “The very first Congress gave sweeping authority to the Executive Branch to resolve some of the day’s most pressing problems.” The bottom line? The Constitution’s original meaning provides no basis for a “major questions” doctrine based on antagonism toward delegation.

Apparently, however, none of that history was important to the conservative majority’s ruling today. And we should expect the damage to extend well beyond the ability of the federal government to protect our environment. Because of this flawed, ideologically tainted ruling, the power of the national government to solve national problems—perhaps the key reason the Constitution was drafted and ratified—is now at grave risk.

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Resources:

CAC case page in West Virginia v. Environmental Protection Agency, including brief behalf of University of Michigan Law School professor Julian Davis Mortenson, a leading scholar on constitutional history relating to legislative delegations of authority: https://www.theusconstitution.org/litigation/west-virginia-v-epa/

CAC BLOG: “Awaiting Major Cases in the Shadow of Dobbs,” Charles Miller, May 17, 2022: https://www.theusconstitution.org/blog/awaiting-major-cases-in-the-shadow-of-dobbs/

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Constitutional Accountability Center is a think tank, public interest law firm dedicated to fulfilling the progressive promise of the Constitution’s text and history. Visit CAC’s website at www.theusconstitution.org.

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