Since its very first legislative session in 1789, Congress has often chosen to delegate power to administrative agencies in broad terms, imbuing them with particular missions but leaving enough room for discretion to act in light of varied, complex, and changing circumstances. To take one modern example, the Clean Air Act of 1970 instructs EPA to set national air quality standards for harmful air pollutants at a level that allows “an adequate margin of safety” and is “requisite to protect the public health.” Lacking the kind of scientific expertise necessary to set such standards—and desiring to create a regulatory program that would address air pollution problems that were poorly understood or even completely unknown at the time—Congress chose not to set the standards itself but to direct EPA to set them and update them within the parameters Congress specified. In many cases Congress has also found that the substantive work of an agency requires some independence from political pressures. It has therefore structured the processes for the appointment and removal of agency officials in such a way as to provide a buffer zone between agency personnel and the politics of the presidency.
The Supreme Court long policed these kinds of legislative choices with a light touch, understanding that Congress was in a better position than the Court to identify the appropriate breadth of delegations of authority to agencies and the appropriate degree of political independence for them. But this long period of legislative hegemony and judicial restraint with respect to the powers and structure of federal agencies appears to be coming to an end. Deploying originalist arguments, the conservative justices on today’s Supreme Court have served notice—most recently in West Virginia v. EPA, decided this June—that they are prepared to weaken and restructure contemporary government in order to return us to their vision of our constitutional past. For these justices, the fact that their originalist interpretations of the views of the Constitution’s framers align perfectly with the deregulatory and anti-government program of today’s Republican party is a mere coincidence.
The legal arguments being offered in three cases to be heard in the Supreme Court’s upcoming term show how far the Court has already gone in expanding the bounds of acceptable legal argument with respect to the legitimacy of government as we know it. This turning point represents the culmination of the right’s decades-long project to dismantle the administrative state, and nothing less than the future of the effective governance is at stake.
