Agencies Must Not Change Statutes | News, Sports, Jobs

One end-of-term US Supreme Court opinion won’t get the attention that some other such opinions will get.

Yet the court’s opinion in West Virginia v. The Environmental Protection Agency is important not because it limits the power of government – which it does not – but because it limits the power of the administrative state.

That is, the bureaucracy.

Chief Justice John Roberts wrote the opinion. Joining him are Justices Clarence Thomas, Samuel Alito, Neal Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

Justice Elena Kagan, joined by Justices Stephen Breyer and Sonia Sotomayor, dissented.

Roberts, writing for the court, and Gorsuch, concurring in the court’s opinion, explain the holding’s importance.

“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,'” Roberts says. “We presume that ‘Congress intends to make major policy decisions itself, not leave those decisions to agencies.'”

No one disputed that the EPA may act under the statute that the opinion addresses. Yet Roberts says that in this action, the EPA’s view of its authority “Was not only unprecedented; it also effected a ‘fundamental revision of the statute, changing it from’ ‘ one form of regulation “Into an entirely different kind.”

Besides, the “Regulatory writ (that the) EPA newly uncovered conveniently enabled it to enact a program that Congress ‘Congress (had) considered and rejected’ multiple times,” Roberts says. The EPA simply could not “Point to ‘clear congressional authorization’ to regulate” as the EPA sought to regulate.

In short, government agencies must follow the statutes they administer, not stretch them beyond recognition, much less change them.

Gorsuch’s concurring opinion, which Alito joins, adds more.

The “Framers believed that a republic – a thing of the people – would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable ‘ministers,'” Gorsuch says. By “Vesting the lawmaking power in the people’s elected representatives, the Constitution sought to ensure ‘not only that all power (w) ould be derived from the people,’ but also ‘that those (e) ntrusted with it should be kept in dependence on the people. ‘ Constitution The Constitution, too, placed its trust not in the hands of ‘a few, but (in) a number of hands,’ so that those who make our laws would better reflect the diversity of the people they represent and have an ‘ immediate dependence on, and an intimate sympathy with, the people. ‘”

“The framers believed that the power to make new laws regulating private conduct was a grave one that could, if not properly checked, pose a serious threat to individual liberty.” Gorsuch says. “As a result, the framers deliberately sought to make lawmaking difficult by insisting that two houses of Congress must agree to any new law and the (p) resident must concur or a legislative supermajority must override his veto.

“The difficulty of the design sought to serve other ends too. By effectively requiring a broad consensus to pass legislation, the Constitution sought to ensure that any new laws would enjoy wide social acceptance, profit from input by an array of different perspectives during their consideration, and thanks to all this prove stable over time. Need The need for compromise inherent in this design also sought to protect minorities by ensuring that their votes would often decide the fate of proposed legislation – allowing them to wield real power alongside the majority. Difficulty The difficulty of legislating at the federal level aimed as well to preserve room for lawmaking ‘by governments more local and more accountable than a distant federal’ authority,… and in this way allow (s) tates to serve as’ laborator (ies) ‘for’ novel social and economic experiments. ‘

“Permitting Congress to divest its legislative power to the (e) xecutive (b) ranch would ‘dash (this) whole (structure).’ Is Legislation would risk becoming nothing more than the will of the current (p) resident, or, worse yet, the will of unelected officials barely responsive to him. … In a world like that, agencies could churn out new laws more or less at whim. Intrusions on liberty would not be difficult and rare, but easy and profuse. … Stability would be lost, with vast numbers of laws changing with every new presidential administration. Rather than embody a wide social consensus and input from minority voices, laws would more often bear the support only of the party currently in power. Powerful special interests, which are sometimes ‘uniquely’ able to influence the agendas of administrative agencies, would flourish while others would be left to ever-shifting winds. “

Dr. Randy Elf’s Independence Day brief in the United States Court of Appeals for the Tenth Circuit addresses limits on government power and is at


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