Against the Supreme Court’s Appalling Attack on Our Democracy™

This morning, six unelected judges on the Supreme Court struck a fatal blow against Our Democracy™. In the case of West Virginia v. E.P.A., the Court rejected the expansive authority of the nimble, responsive, and representative Environmental Protection Agency, and insisted that, under the American system of government, federal laws must be made by the elected lawmakers of the United States Congress. From Heav’n, James Madison must surely have wept.

The majority’s opinion was predicated upon a loophole within the U.S. Constitution called “Article I,” which, among other things, reads that “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.” This provision, the Court reasoned, can be reasonably construed to preclude the executive branch from doing whatever it wants, whenever it wants, without underlying statutory approval. Because “Congress did not grant EPA in Section 111(d) of the Clean Air Act the authority to devise emissions caps,” the majority concluded, the EPA is not permitted to “devise emissions caps.” This, I need not point out, is precisely the sort of too-clever-by-half sophistry that gives professional lawyers a bad name.

About the Author

Charles C. W. Cooke

Charles C. W. Cooke is a senior editor at National Review and the host of The Charles C. W. Cooke Podcast.

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This morning, six unelected judges on the Supreme Court struck a fatal blow against Our Democracy™. In the case of West Virginia v. E.P.A., the Court rejected the expansive authority of the nimble, responsive, and representative Environmental Protection Agency, and insisted that, under the American system of government, federal laws must be made by the elected lawmakers of the United States Congress. From Heav’n, James Madison must surely have wept.

The majority’s opinion was predicated upon a loophole within the U.S. Constitution called “Article I,” which, among other things, reads that “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.” This provision, the Court reasoned, can be reasonably construed to preclude the executive branch from doing whatever it wants, whenever it wants, without underlying statutory approval. Because “Congress did not grant EPA in Section 111(d) of the Clean Air Act the authority to devise emissions caps,” the majority concluded, the EPA is not permitted to “devise emissions caps.” This, I need not point out, is precisely the sort of too-clever-by-half sophistry that gives professional lawyers a bad name.