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Separation of Powers and the Regulatory State

Susan Estrich on

It was a strange coincidence that Justice Stephen Breyer's last day on the court, the final day of the term, was also the day the court dealt a potentially devastating blow to the regulatory system that Breyer has written about, taught about, worked in and reformed for his entire career.

The supposed ground for the court blocking climate change regulation was separation of powers. Like federalism, separation of powers is a basic constitutional concept that on its face deals not with what is decided, but who is doing the deciding. In the case of federalism, the question is whether it should be the state or the federal government that has authority. In the case of separation of powers, it is what branch of government -- executive, congressional or judicial -- should be deciding.

So the question was not, at least technically, whether the Environmental Protection Agency was right in adopting regulations to encourage the shift from coal to natural gas, solar and wind, but whether it should have been Congress and not an executive agency that made the decision. The dissenters focused, understandably enough, on the threat of global climate disaster, the majority saw the case as one involving fundamental constitutional divisions of power.

Ruling that the regulation was the equivalent of new legislation, Chief Justice John Roberts said that Congress and not the EPA must be the one to decide on what he termed the "major question" of our response to climate change. Concurring, Justice Neil Gorsuch expanded on that theme: "The major questions doctrine ... protect(s) the Constitution's separation of powers ... In Article I, 'the People' vested 'all' federal 'legislative powers ... in Congress.'" They did not create "a regime administered by a ruling class of largely unaccountable 'ministers.' ... Under our Constitution, the people's elected representatives in Congress are the decisionmakers here."

The demeaning view of "unaccountable ministers" matches the usual conservative rhetoric about government bureaucrats. It is totally at odds with the view that Breyer has repeatedly taken of expert agencies and the critical role they play in a complex regulatory state. Breyer has long been a champion of the view that while Congress sets the agenda -- passing broad laws to regulate the environment and protect consumers, workers and the investing public, for instance -- it is up to the agencies to make those laws effective and give meaning to their promise.

Or to put it more starkly, as Gorsuch must surely know, demanding that Congress do it is another way of saying it won't be done and shouldn't be.

It's not simply about process. It never is. States' rights as an answer to civil rights was never really about federalism, any more than opposition to the New Deal was really about states' rights to regulate contracts.

 

Gorsuch criticizes the "explosive growth of the administrative state since 1970"; his theory leaves no place for substantial regulatory action.

Breyer was my professor in law school, and then I was his special assistant when he was chief counsel of the Senate Judiciary Committee. The project I worked most on was a follow-up to his pioneering work on airline deregulation; our next focus was trucking deregulation. The point was that his focus on the regulatory state did not mean he favored more regulation. The question was always better regulation, and in that, sometimes less was more. But never?

Is the air too clean? The water too pure? Have we left our children a planet that can survive us?

Breyer did all he could. It's up to the rest of us now.

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