The Supreme Court closed out its current term this morning with yet another significant victory for the cause of limited government, ruling in West Virginia v. EPA that the EPA could not treat the Clean Air Act as a writ to do anything it wants to America’s electric utility sector. Chief Justice Roberts wrote the opinion for a 6 – 3 majority (guess who the three dissenters are), and on a first quick read does some pretty good work, especially in swatting away issues of standing and the problem of mootness, the latter being a typical trick of the administrative state to avoid judicial scrutiny
This case primarily involves statutory construction and is not strictly a constitutional case like Dobbs or Bruen (although the constitutional principle of non-delegation is an important factor) but nonetheless represents a blow against the administrative state. The bottom line: Congress has to do its job. Here is the closing section of Roberts’s opinion:
Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible “solution to the crisis of the day.” But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.
The second major decision this morning is more disappointing, though more complex: in Biden v. Texas, the Court upheld the Biden Administration’s move to end President Trump’s “remain in Mexico” policy for asylum seekers. Roberts and Kavanaugh sided with the Court’s three liberals. I’m going to need to read through the entire 58-page opinion to make complete sense of it (a large part of it is a tangled jurisdictional question), but it appears that one component of the decision simply rests on affirming the scope of executive power, and as such the decision will not enable the left to bring a successful suit against President Trump in 2025 when he re-imposes “remain in Mexico.”
This passage from Kavanaugh’s concurrence is worth noting:
The larger policy story behind this case is the multi-decade inability of the political branches to provide DHS with sufficient facilities to detain noncitizens who seek to enter the United States pending their immigration proceedings. But this Court has authority to address only the legal issues before us. We do not have authority to end the legislative stalemate or to resolve the underlying policy problems.
One way of reading this is to say that if the American people want more vigorous immigration enforcement, they need to change presidents.
I’ll update this post later today after I have time to read through both decisions more closely.
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