The Supreme Court Taps Brakes on the Administrative State: Thank God **UPDATE**
West Virginia v. EPA could have a larger effect on more people than Dobbs
Brownstone Institute’s Jeffrey Tucker published a very important article. In “The Origin and Operation of the US Administrative State,” Tucker argues that elections are meaningless because elected officials are the puppets of entrenched bureaucrats.
Tucker begins with the enactment of the Pendleton Act which created a permanent civil service in 1883. The law protected the vast majority of government employees from executive-branch hiring and firing. Tucker writes:
What Congress did not understand at the time was that they had fundamentally altered the American system of government. The Constitution nowhere provides for a permanent class of administrative overlords to whom Congress could outsource its authority. It nowhere said that there would exist a machine technically under the Executive branch that the president could not control. The Pendleton Act created a new layer of statist imposition that was no longer subject to democratic control. (Source)
Tucker concludes with a pessimistic note with which I concur:
Let’s not be naive about the prospects for change. It is going to require far more than merely electing a new class of supposed rulers via the democratic process. The real rulers are too smart to subject themselves to the business of elections. Those are designed to keep our minds busy with the belief that democracy still survives and therefore it is the voters, not the government, that is responsible for outcomes.
Yesterday, the Supreme Court inserted a glimmer of hope into our vision of bureaucratic dystopia.
In 6-3 ruling, the court ruled the Environmental Protection Agency does not have the power to regulate industry in pursuit of greenhouse gas emissions. SCOTUSblog provides the meat of the ruling:
Section 7411 of the Clean Air Act, Roberts reasoned, had been “designed as a gap filler and had rarely been used in the preceding decades.” But with the CPP, Roberts observed, the EPA sought to rely on Section 7411 to exercise “unprecedented power over American industry.” “There is little reason to think Congress assigned such decisions to” the EPA, Roberts concluded, especially when Congress had previously rejected efforts to enact the kind of program that the EPA wanted to implement with the CPP.
The SCOTUSblog article explains why this ruling’s effect will spread far beyond the EPA and could reverse decades of bureaucratic overreach:
Roberts’ full-throated embrace of the major-questions doctrine – a judicially created approach to statutory interpretation in challenges to agency authority – likely will have ripple effects far beyond the EPA. His reasoning applies to any major policymaking effort by federal agencies.
And, in a concurring opinion, Alito and Gorsuch go even further, as SCOTUSblog continues:
In a concurring opinion that was joined by Justice Samuel Alito, Justice Neil Gorsuch emphasized that the dispute before the court involved “basic questions about self-government, equality, fair notice, federalism, and the separation of powers.” The major-questions doctrine, Gorsuch wrote, “seeks to protect against ‘unintentional, oblique, or otherwise unlikely’ intrusions on these interests” by requiring federal agencies to have “clear congressional authorization” when they address important issues. Whether coal- and gas-fired power plants “should be allowed to operate is a question on which people today may disagree, but it is a question everyone can agree is vitally important.”
You can bet our nation’s “real rulers,” as Jeffrey Tucker aptly calls them, reacted with the same hysteria to West Virginia as the baby killers reacted to Dobbs. Bureaucracy is as much a religion to the bureaucrats as abortion is to leftists.
While the dangers of the administrative state are more subtle and less immediate than those of abortion, bureaucracy is as much a threat to freedom as abortion is to human life. Morally, the two issues are on vastly different planes, and I would not argue that my freedoms are as important as a baby’s life, an unchecked administrative state will eventually lead to crimes even more horrific than 60 million abortions. A vast, powerful bureaucracy operating outside the court system, above Congressional oversight, and immune from executive branch control will eventually become despotic. We witnessed this with the Covid lockdowns and mandates.
If conservatives need a singular issue to rally around, let’s make the destruction of the administrative state a top priority. Demand Republicans commit to 50-percent budget cuts in every department of the federal government. Repeal or curtail the Pendleton Act, giving the elected president the power to fire any government employee. Outlaw public employee unions. Make Congress do its job.
As a Christian, I consider the Dobbs decision the Supreme Court’s greatest achievement in 50 years. But the West Virginia decision could prove to affect more people for more time than any ruling in our lifetimes.
Update
Jeffrey Tucker just posted a wonderful analysis of the West Virginia v. EPA case. And, like me, he sees a bright glimmer of hope in the outcome and, especially, Gorsuch’s concurring opinion:
If this is where American jurisprudence is headed – all in reaction to the utter shock that came with the lockdowns and mandates – we have every reason for long-term optimism.
Read The Mighty Gorsuch vs. the Administrative State: Quotes from West Virginia vs. EPA