The following statement may be attributed to Free State Foundation President Randolph May with regard to the Supreme Court’s decision in West Virginia v. EPA. May, an expert in administrative law, is a former Chair of the ABA Section of Administrative Law & Regulatory Practice, a former Public Member and present Senior Fellow at the Administrative Conference of the United States, and a Fellow at the National Academy of Public Administration.
“The Supreme Court’s opinion in the West Virginia case is a consequential decision for the administrative state because it further cements the ‘major questions’ doctrine in our jurisprudence as a means of protecting the separation of powers embedded in the Constitution. Despite the complexities of the Clean Air Act, the Court’s ruling is straightforward: an agency lacks the authority to adopt regulations in cases of major economic and political significance absent a clear statement from Congress delegating the agency such authority. Here, the Court concluded that EPA’s new comprehensive generation-shifting regulatory approach, with its major impacts on the economy, went beyond anything Congress clearly authorized.”
“The Court’s reliance once again on the major questions doctrine likely will diminish further the effect of the Chevron doctrine which requires courts to defer to agencies’ reasonable interpretations of their own statutes. This, in turn, likely will constrain the overly broad discretion of agency regulators to adopt major rules without a clear statement from Congress that they possess the authority to do so. This is consistent with the Founders’ view of the Constitution that it is the duty of the judiciary, not the 'Fourth Branch' consisting of unelected bureaucrats, to say what the law is."
NOTE: One of my pieces is cited in Justice Gorsuch’s concurring opinion.
NOTE: For relevant background, also see the law review article, "NFIB V. OSHA: A Unified Separation of Powers Doctrine and Chevron's No Show,” by Randolph May and Andrew Magloughlin, forthcoming in the South Carolina Law Review.
Posts
