Congress must regain its legislative powers



It is time for Congress to regain its legislative powers

Congress doesn’t need to wait until the Court decides that delegating legislative power is not constitutional.

In the final day of the Supreme Court’s term last Thursday, it released its decision in West Virginia v. EPA. After several exciting weeks where the Court made significant rulings on abortion, religious liberty, and firearms, pundits were projecting that West Viriginia v. EPA might provide one more landmark decision before the end of the term by scaling back the power of administrative agencies to make law. Although it may not be the shocker some expected, I believe the decision represents a significant step towards removing the authority of non-elected agencies to make laws on important issues.

The legal posture of the case is rather complicated, but the basic facts are simple enough: in 2015 the Environmental Protection Agency promulgated the Clean Power Plan rule. This rule allowed the EPA to set the emission limit for existing power plants (power sources) and determine the best system of reduction.

The issue is the EPA’s application of this rule to regulate coal- and natural gas powered plants. Three measures were chosen by the EPA to reduce emissions from these plants. This was basically a way to burn coal cleaner by increasing the heat rate at which it is burned. This was a legitimate application of the power to make rules regarding the “best system of emission reduction.” But the other two measures were substantially different and involved “generation-shifting,” laying out a plan to shift the power grid from coal to natural gas, and from natural gas to “renewables” such as wind and solar power.

The Court was faced with the question of “whether restructuring the Nation’s overall mix of electricity generation, to transition from 38% to 27% coal by 2030” falls within the EPA’s power to determine the “best system of emission reduction” that has been determined for these types of power plants. The Court ruled that the EPA had exceeded its authority. The Court emphasized the significance and application of “major question doctrine” by pointing to precedent. However, it noted that the Court should be skeptical about an agency’s claims to rulemaking authority in exceptional cases where economic decisions have been made. An “agency” is a person who is responsible for deciding the outcome of such cases. . . “must point to the clear authorization of Congress for its power.” (internal references omitted). This Court explains that the Court is addressing a grave problem: “agencies asserting highly consequential powers beyond what Congress could reasonably understand to have granted”. In this instance, the EPA interpreted the Clean Power Plan in order to permit rule-making which would result in major changes to the country’s electricity grid. These decisions can only be made by the legislature, unless it clearly delegated such power to the agency. In this instance, the legislature did not make such a clear delegation.

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It is clear that those who want to force a green energy transition are disappointed by the result. This ruling, despite the outcome, is a good precedent for this republic. Article I of the Constitution is clear: “all legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” The decision by government to force a transition from one type of energy production to another is a legislative decision, and all federal legislative power is vested in Congress. In West Virginia v. EPA , the Court explains that Congress must clearly delegate major decision-making power to executive agencies. But there is good scholarship arguing that the “underlying principles, framing assumptions, and text” of the Constitution strongly demonstrate that the legislative power may never be delegated to a branch of government other than Congress. The strong separation of power in our republic prevents the possibility of tyranny. The law is made by the legislature, enforced by the executive, and interpreted in the judiciary. All those who fear the threat of tyranny and our founders worked hard to preserve separation of power.

Executive agencies like the EPA are part of the executive branch. The danger of allowing the branch which executes the law also to make the law is very serious. West Virginia v. EPA at least restricts agencies from assuming rulemaking authority without express language by Congress. However, it is clear that Congress cannot delegate its legislative powers, regardless of how explicit the delegation language.

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It should be clear that electing legislators is better than having major laws written by bureaucrats in executive departments. We should force Congress to create federal laws. But there is a common and legitimate criticism: most members of Congress “lack the technical and policy-relevant knowledge needed to understand the implications of legislative proposals.” Our legislators are not experts on the environment, the tax code, or most other complicated policy areas in which they make law. There is an easy and efficient alternative to the delegating of difficult legislative decisions to executive agency “experts”. This does not mean that you should eliminate expert input, but rather shift experts from rulemaking agencies to being congressional staff.

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The entire House of Representatives has about 9,000 staff members as of 2021. That is a 14 percent decrease since 2009. This 9,000 employee figure includes the staffers who work directly for one of the 435 representatives, as well as in leadership offices and House committees, in both policy and non-policy positions. By way of comparison, the EPA alone has over 15,000 employees. As cases like West Virginia v. EPA begin to chip away at the ability of Congress to delegate difficult legislative decisions to “experts” in executive agencies, perhaps this transfer of staffing numbers is a simple solution. Complex legislation should be made by experts in specific policy areas. These experts are currently in the wrong places. These policy experts are advisors to Congress, and not the final rulemakers.

Congress doesn’t have to wait for the Court decision that delegating legislative power is not constitutional. Congress can regain its legislative power. It makes and enforces the delegation laws, as well as controls the budget strings for the federal government. Congress should repeal the statutes that delegate legislative tasks to administrative agencies and defund policy-making agency funding. Then, reallocate resources for increased congressional staffing and committee members. Policy experts should be considered advisors, not unelected decision-makers. Members of Congress should hire them in larger numbers so that they can provide advice to those who have been given “all legislative power” by the Constitution. They don’t have to leave, but they do need a new job. West Virginia v. EPA be a first step towards the devesting these legislative delegations. Congress should hire the right advisors and take back its constitutional obligation to make the law, not delegating it to bureaucrats.

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