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  • Joel M. Pratt

Administrative Law, the Supreme Court, and the Separation of Powers

Don’t let the title fool you: this is an interesting topic. Administrative law addresses fundamental questions about how and where in the federal government policy is made (or unmade). Supreme Court watchers know that this term promises headline-grabbing cases on issues from reproductive to gun rights. But administrative cases, while denser, ask fundamental questions about the separation of powers.

These cases include:

  • The two cases considering the “vaccine-or-test mandates” from OSHA and HHS (the former was vacated; the latter affirmed).

  • The case addressing the CDC’s COVID-19 eviction moratorium (vacated).

  • The recent opinion from a Florida district court judge issuing a nationwide injunction against the CDC’s mask mandate on public transportation.

  • A Texas court’s revival of a Trump-era immigration policy repealed by the Biden administration.

  • West Virginia v. E.P.A., a case challenging previous executive branch regulations regarding climate change.

While all these cases (and more) make for unique and interesting explorations, this author assumes that you will only read a few more paragraphs about administrative law, so this piece narrows its focus to West Virginia v. E.P.A.

The basic question in this case is the limit of the Environmental Protection Agency’s authority under the Clean Air Act to regulate greenhouse gasses. Based on the questions at oral argument and the briefs, it appears that a majority of the Justices are poised to trim the sails of the executive branch. Their legal reasoning is based on two doctrines, which – until now – have had little teeth and have been differently understood by administrative lawyers and scholars.

The first is the “non-delegation doctrine,” which states that the Constitution gives authority to Congress that Congress cannot delegate to the agencies. The second is the “major questions doctrine,” which states that certain issues are so big that Congress could not possibly have intended to allow the agencies to regulate in that space without clearer guidance.[1]

Commentators much more erudite than this author have written about aspects of these doctrines and this case. Are these doctrines internally coherent? Are they based in any constitutional or legal text or history? Do they appropriately balance the people’s interests in acting through the executive and legislative branches? What does this case represent about the E.P.A.’s or Congress’s constitutional authority or practical ability to tackle big policy problems (climate change, global public health emergencies, immigration policies, etc.)? And those debates are worth having.

But fundamentally, regardless of where one falls on any policy, these cases represent a major shift in the center of power from the executive branch to the courts. While previously, courts deferred to agencies’ reasonable interpretations of ambiguous statutes, the Court appears ready to decrease deference. And the threshold questions of what falls within the “non-delegation” and “major questions” doctrines are entirely within the purview of the federal courts, not any other branch.

In other words, the rise of non-delegation and major questions doctrines represent a major shift toward the Supreme Court and away from the White House. If the courts decide which policies are “so big” or “so important” that Congress must enact them specifically, then courts get to pick the regulations they like and which they do not. And thus, the policy preferences within the judiciary may have some of the strongest pulls on executive policy in the next few administrations. For those who trust judges to make wise decisions about the limits of executive power, this is a positive development. And for those who believe in expansive presidential power (or, more simply, who support any specific administration), this shift of power to the courts is less rosy.

One solution to the increasingly heated tug-o-war between the President and the Court would, of course, be Congress’s intervention. But most, regardless of partisan affiliations, would agree that Congress currently can’t or won’t. Highly partisan and rancorous, deeply polarized, and structurally geared toward inaction, Congress is passing fewer and fewer major pieces of legislation. So the reality is that, if the executive branch can’t do something, perhaps no one will.

So, for now, we’re left with rule-making versus opinion-writing. And the Court is poised to move more executive actions to courtrooms, at least as long as Congress cannot or does not act. If the Court rules as most people expect it will, it will fundamentally restructure the relationship between the branches of government.

And because these cases are doctrinally and procedurally dense, it can be easy to gloss over them, particularly at a time when so much law appears to be changing. Make no mistake: these cases fundamentally alter the balance of power in favor of the judiciary. Depending on your policy preferences and trust in the federal courts as institutions, you may believe that decision is profoundly wise or painfully unwise. But you should know it’s happening.

[1] If any administrative law scholars are reading this: the author is aware that this is a perversion of what many consider a core understanding of “major questions doctrine,” but this piece concerns what the justices may actually do, not the contested history of these legal theories.


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