Contact us for a Consultation

The Tyranny of Unaccountable, Rogue Bureaucracy

The case in question is West Virginia v. EPA, which was decided in June regarding the Obama-era Clean Power Plan, a 2015 regulatory scheme devised by the EPA. The plan sought to reinterpret a decades-old statute to discover new authority for the EPA to forcibly transition the energy sector so that new coal power plants could not be built.  This “plan” was not passed through the legislative branch.

The Clean Power Plan never actually went into effect as it was caught up in legal battles. Then, in 2019, the Trump administration sought to repeal the rule and was itself sued. So, it remained a live question: Could the EPA take unilateral action to restructure the energy industry without congressional approval?

The Supreme Court sought to answer this question in its decision. The majority, authored by Chief Justice John Roberts, ruled in favor of West Virginia and against the EPA, but did not go so far as to overturn long-held doctrines enabling wide bureaucratic discretion.

Gorsuch, for his part, wrote a concurrence perfectly explaining why rogue bureaucracy must be further reined in. (Full credit to the Brownstone Institute’s Jeffrey Tucker for first highlighting Gorsuch’s concurrence + quotes).

“Vesting federal legislative power in Congress [rather than bureaucrats],” Gorsuch writes, “is vital because 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.’”

But what about those, like dissenting Justice Elena Kagan, who say that federal bureaucrats need wide latitude because Congress is failing to, in their view, adequately address climate change and it is hard to pass law?

“Admittedly, lawmaking under our Constitution can be difficult,” Gorsuch acknowledges. “But that is nothing particular to our time nor any accident.”

“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….” he said. “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 President must concur or a legislative supermajority must override his veto.”

With an empowered, unelected bureaucracy, “agencies could churn out new laws more or less at whim,” Gorsuch adds. “Intrusions on liberty would not be difficult and rare, but easy and profuse.”

This isn’t hypothetical speculation—it’s exactly what we’ve seen under the status quo.  The eviction moratorium, vaccine requirements, nation wide “emergency” orders.

Separation of Powers

As in any business it is important for people to know their roles.  It is not the role of the Judicial Branch to make law, nor is it the role of the Executive Branch.  Those that make law are strictly limited to the Legislative Branch.  This is not a mistake, it is by design.  Those that founded this Country designed a system of accountability (elections) and freedom from rogue leaders (division of power).  No one person or their agents can unilaterally make and enforce law.

Yes it makes things slow.  Yes it makes things tough.  Yes you may not like it.  Now imagine anyone, being able to make any law, at any time.   Would you like that more?  The powers were not separated for your convenience, they were separated for your existence – as a free American.

Winslow Law, LLC | © 2022 | 843 .357 .9301