Chief Justice Roberts Reins In the Pen-and-Phone EPA

T he Supreme Court ended this momentous term the way it began: telling a federal administrative agency that it had overstepped its powers by writing laws without the authority of Congress. This time, it was the Environmental Protection Agency and its Obama-era Clean Power Plan rule, which sought to require existing coal-fired and natural gas-fired power plants to reduce carbon emissions by producing less electricity or converting to green-energy sources — as the Court described its aim, to “compel the transfer of power generating capacity from existing sources to wind and solar.” This is one last loss for Barack Obama’s “pen and phone” strategy to use the executive branch to write laws that Obama could not get through Congress after the 2010 and 2014 elections.

In terms of outcomes, the last day of the Court’s term ended with split decisions characteristic of Chief Justice John Roberts: The 6–3 Roberts opinion in West Virginia v. EPA striking down the Clean Power Plan rule was coupled with a 5–4 Roberts opinion in Biden v. Texas upholding the Biden administration’s power to undo the 2019 Trump-instituted Migrant Protection Protocols, also known as the “Remain in Mexico” policy. EPA was a clean split between the six conservative and three liberal justices; in Texas, Roberts and Justice Brett Kavanaugh joined with the three liberals, and Justice Amy Coney Barrett wrote that she agreed with their analysis of the legality of the policy but procedurally would not have ruled on the issue.

The EPA case was not the sweeping, root-and-branch rebuke to the administrative state that some conservatives had hoped for. The Court did not rule on whether Congress has the constitutional power to regulate carbon emissions from stationary power plants. It did not rule on the nondelegation doctrine — i.e., whether or to what extent Congress could constitutionally delegate power to the EPA to write such a rule. And it did not, at least directly, rule on the continuing viability of the Chevron doctrine or any of the other doctrines under which courts defer to administrative agencies in interpreting the law.

The Major Question

For all of that, EPA is still a pretty big win for democracy and separation of powers, capping off a momentous term full of such victories. The Court applied the “major questions” doctrine and concluded that the Clean Power Plan rule was such a significant policy that the agency needed clear statutory authority before it could assert the power to regulate. This is, if anything, a reversal of any deferential presumption favoring the administrative state:

In certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us reluctant to read into ambiguous statutory text the delegation claimed to be lurking there. . . . To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to clear congressional authorization for the power it claims.

You might think that asking a federal agency “on whose authority?” or “who gave you the power to do that?” should be the ordinary right of any American citizen living under a government of limited and enumerated powers. You might think that “something more than a merely plausible textual basis” is required any time the federal government claims the power to limit our life, liberty, or property. Courts are, however, typically more deferential than this if a regulation is not deemed to address a “major question.” It is the non-major questions that are governed by presumptions such as Chevron.

Now, as I explained in January, “the major-questions doctrine . . . is not actually a freestanding constitutional rule, but rather a rule of construction: courts should not presume that Congress has delegated authority to an agency on a particular topic if that authority is not explicit and the topic is a big, contentious national debate.” As the Court has said repeatedly, it will not presume that Congress hides “elephants in mouseholes”: Big grants of power on controversial issues are not to be magically discovered in vague or offhand language.

There is a major constitutional concern looming behind this doctrine: The separation of powers is undermined if executive agencies can assume the job of Congress by writing detailed laws on subjects Congress has addressed only obliquely. When Congress has clearly delegated that kind of authority in an open-ended fashion, the nondelegation doctrine comes into play to limit how much legislative power can be delegated to the executive. But what the major-questions doctrine actually does is apply a statutory canon of interpretation: The bigger the power exercised by the agency, the closer courts will look at the statutory basis for it.

If all of this sounds familiar, the Court has applied this doctrine before in environmental cases, in the Food and Drug Administration’s efforts to regulate cigarettes, and in the Biden administration’s Covid policies. As Roberts noted today, “such cases have arisen from all corners of the administrative state.” Justice Neil Gorsuch’s concurring opinion, joined by Justice Samuel Alito, made the case for the historical bases of the major-questions doctrine dating back to the 19th century, and took a barbed shot at Obama: “When Congress seems slow to solve problems, it may be only natural that those in the Executive Branch might seek to take matters into their own hands. But the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives.”

The Biden administration has not kicked that habit. The Court began this term in August by finding that Congress never gave the CDC the power to issue a nationwide evictions moratorium. In January, the Court held that Congress never gave the Occupational Safety and Health Administration the power to issue a nationwide employer vaccine mandate, although the Court upheld the power of the Centers for Medicare and Medicaid Services to issue such a mandate for health-care workers employed by Medicare and Medicaid providers.

It is not some sort of rogue judicial activism for courts to apply canons of interpretation in reading statutes; judges have been doing that forever, and every law student is stuffed with Latin phrases reflecting the many such rules developed over time. Justice Antonin Scalia co-wrote an entire 400-page book with Bryan Garner detailing and explaining those rules. To the extent there is a case against the major-questions doctrine, however, the best argument would be that the courts should use the same approach for all assertions of administrative-agency legislative power.

The Job of Congress

The Clean Power Plan rule was draconian. As the Court observed, it imposed “numerical emissions ceilings so strict that no existing coal plant would have been able to achieve them” without shifting to a different method of energy production. “Indeed, the emissions limit the Clean Power Plan established for existing power plants was actually stricter than the cap imposed by the simultaneously published standards for new plants.” That inverted the standards Congress wrote in the EPA’s statute, the Clean Air Act, which granted more extensive powers over new plants than existing ones.

The Obama rule was still tied up in court when the Trump EPA repealed it in 2019. But as Roberts noted in another recent case, he is skeptical of efforts by agencies to use changes of administration as a way around judicial review of normal administrative procedures. The Biden administration argued that the case was moot because the rules had been repealed, but it vigorously argued that the rules were legal and gave every indication of wanting them reimposed, so the Court concluded that the dispute remains a live one.

Roberts, walking through the many previous disputes in which the major-questions doctrine has been explicitly or implicitly applied, explained why the Court remains vigilant about administrative overreach:

All of these regulatory assertions had a colorable textual basis. And yet, in each case, given the various circumstances, common sense as to the manner in which Congress would have been likely to delegate such power to the agency at issue, . . . made it very unlikely that Congress had actually done so. Extraordinary grants of regulatory authority are rarely accomplished through modest words, vague terms, or subtle devices. . . . Nor does Congress typically use oblique or elliptical language to empower an agency to make a radical or fundamental change to a statutory scheme. Agencies have only those powers given to them by Congress, and enabling legislation is generally not an open book to which the agency may add pages and change the plot line. . . . We presume that Congress intends to make major policy decisions itself, not leave those decisions to agencies.

The Court noted two big red flags of a major question: The EPA was asserting a new power it had not previously claimed, and it was trying to enact a rule only after efforts to get it through Congress as a new law had failed. Roberts had no doubt that the EPA was trying to write a law on a major question:

EPA claimed to discover in a long-extant statute an unheralded power representing a “transformative expansion in its regulatory authority. . . . It located that newfound power in the vague language of an ancillary provision of the Act, . . . one that was designed to function as a gap filler and had rarely been used in the preceding decades. And the Agency’s discovery allowed it to adopt a regulatory program that Congress had conspicuously and repeatedly declined to enact itself.

Roberts quoted Justice Felix Frankfurter in 1941 on why courts should be skeptical of brand-new claims of a discovered power: “Just as established practice may shed light on the extent of power conveyed by general statutory language, so the want of assertion of power by those who presumably would be alert to exercise it, is equally significant in determining whether such power was actually conferred.” He also caught the EPA admitting that it was doing something new, yet another object lesson in the difficulty of maintaining a legal position that is at odds with what the political branches say in public:

There is little reason to think Congress assigned such decisions to the Agency. For one thing, as EPA itself admitted when requesting special funding, “Understand[ing] and project[ing] system-wide . . . trends in areas such as electricity transmission, distribution, and storage” requires “technical and policy expertise not traditionally needed in EPA regulatory development.” . . . When an agency has no comparative expertise in making certain policy judgments, we have said, Congress presumably would not task it with doing so.

One wishes that Roberts had applied a similar skepticism when the IRS admitted it was passing an Obamacare rule “regardless” of the statutory language, but today’s decision takes the separation of powers more seriously than that.