Legislative Dereliction of Duty

The Court's recent rulings reveal how our national and state legislatures have atrophied

James Madison as a Congressional delegate; portrait by Charles Willson Peale

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In West Virginia v. Environmental Protection Agency, the Court had to answer the question of whether the Clear Air Act gave the EPA the power to reshape America’s energy infrastructure by imposing a complex set of incentives designed to reduce reliance on coal and increase reliance on natural gas and non-carbon energy. (Actually, the Court didn’t have to answer that question; they could have said it was rendered moot by the Biden administration EPA’s decision to abandon the Obama administration EPA’s plan, but the Court decided not to kick the can that way.) The Court decided that indeed the EPA exceeded its mandate in setting forth such a plan. The broad grant of power under the Clear Air Act wasn’t intended and had never been used for something so sweepingly transformative, so if Congress wanted the EPA to have that kind of power they should have given it to them explicitly. The structure of America’s energy system is a “major question” in the parlance of the decision, and Congress can’t delegate that kind of thing without being very explicit about their intent to do so.

I have a lot of sympathy for the baseline assumption of the decision that Congress really ought to make laws saying what they intend. But what strikes me about the decision is that the Supreme Court wasn’t adjudicating an inter-branch conflict. When President Obama announced the Clean Power Plan in 2015, both houses of Congress were in Republican hands. It would have been trivial for them to pass a law explicitly limiting the EPA to regulating pollution at a given point of emission, and prohibiting them from implementing a larger scheme of directives and incentives designed to gradually decarbonize the entire electric grid. That would have removed any ambiguity about their delegation of power. They didn’t do it. Similarly, in 2022, with both houses of Congress in Democratic hands, it would be trivial for them to pass a law explicitly authorizing the EPA to regulate in precisely the fashion that the Clean Power Plan sought to do. Part of Build Back Better in fact aimed to do something akin to that, not by regulating but by providing a variety of incentives for the adoption of renewable energy. This Congress did not take that action either.

The Court says that this inactivity is precisely why they are acting. Their worry—made most explicit in Justice Neil Gorsuch’s eloquent concurrence—is that if they allowed something like the Clean Power Plan to stand in the absence of a clear mandate from Congress, the legislature, the body most accountable to the people, would effectively be neutered. The federal bureaucracy would be able to make laws without needing broad popular approval, and grave threats to liberty could follow.

But here’s the thing: the Court doesn’t have broad popular approval either, and it is if anything less-accountable than the federal bureaucracy. If the legislature refuses to act, then lobbing the ball back into their court, as it were, will not be efficacious. I don’t mean efficacious in terms of delivering good policy—I mean efficacious in terms of delivering any policy at all, and therefore in terms of either advancing the people’s interests or protecting their liberty.

The Court cannot force the legislature to be a jealous defender of its own powers and prerogatives. It can only say “no.” And in saying “no” it is rebuking another branch—the Executive—for doing precisely what they themselves are doing: innovating in response to the dereliction of duty by the legislature.

Another recent decision exposed the dereliction of duty on the part of the legislature—this time of the state legislatures. When Dobbs v. Jackson Women’s Health overturned Roe and Casey, it resurrected numerous state regulations of abortion that preexisted Roe v. Wade. Arizona, Michigan and Wisconsin all have pre-Roe bans on abortion that may or may not be enforced, but which are on the books. If they are not removed or rewritten by the legislature, then doctors and other abortion providers in those states can have no reliance that their activities may not be prosecuted at some point in the future. These laws in no sense represent the views and preferences of the people as currently constituted in those states. But it requires an act of the state legislatures to do something about it. Will they?

It’s not clear. All three states have Republican majorities, but those majorities would probably be reluctant to pass an outright ban on abortion given the views of the people in their states. Arizona, for example, recently passed a law restricting abortion after 15 weeks, but since that’s a more liberal regime than existing (ancient) law in that state, it has no effect. But by the same token, they might feel that they won’t be punished by the people if they fail to liberalize abortion laws, which is what passing more limited restrictions would require. And they surely feel that if they did so they would face electoral consequences from their own party base. So the dead hand of the past might well still hold the wheel.

What about past Democratic majorities, though? Why didn’t they act? Wisconsin had a Democratic trifecta in 2009. Why, when for decades the Republican Party has been clear in its intent to roll back abortion rights, did the Wisconsin state legislature not secure some version of abortion rights at that time? The answer, surely, is that they didn’t think they needed to because Roe v. Wade was the law of the land. But another part of the answer, surely, is that any legislative action would have taken risks even in that context. New York passed a sweeping abortion rights bill recently in anticipation of Roe’s likely reversal. A bill guaranteeing broad rights such as we have in New York State would likely have been unpopular in Wisconsin. But a more limited bill might have angered the pro-abortion-rights Democratic base instead. Either way, action would mean political risk—and for no immediate purpose, since as long as Roe stood abortion rights were secure.

West Virginia v. EPA expanded the authority of the Court against the Executive, while Dobbs reduced its authority against the state legislatures, but both cases put Americans in a position where the responsiveness of the legislature to the public interest and to public opinion is now of greater import. If you believe in democracy, as I do, that sounds like a good thing. But if you believe that our legislatures aren’t terribly responsive, for a variety of reasons—gerrymandering, ideological polarization, the decline of intermediating institutions, etc.—then it’s also more than a bit nerve-wracking.

The good news is that, at the national level at least, the legislature has been far more productive in recent years than it had been. It responded to the pandemic with alacrity and in a bi-partisan fashion, and since President Biden came into office we’ve seen successful bi-partisan legislation on physical infrastructure, scientific research and technology, aid for Ukraine, even, most recently, gun safety. Whether the legislature is coming back to life after years of ideologically-driven gridlock, or whether this is just a lull before a new storm, remains to be seen.

I am skeptical, though, that if there is a legislative renaissance this Court will have had much to do with it. The rights and interests of the people can only be secured by the people themselves. Meanwhile, if the Court wants to make sure that the legislature can do the job that they (rightly) understand it was intended to do under our constitution, they might want to take another look at those factors that have made legislatures less-responsive. In particular, before giving the state legislatures more power to determine election results, they might want to consider what constructive role the Court might play in helping clear obstacles to their reform so that those legislatures at least really do represent the people.