“But the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws…”
U.S. Supreme Court Justice Neil M. Gorsuch wrote that and more in his 19-page concurring opinion in the West Virginia v. Environmental Protection Agency (Case No. 20-1530).
The Supreme Court recently ruled, 6-3, that the EPA cannot create over-reaching “laws” that bound entire industries; the ruling was released Thursday morning, June 30.
The leftwing champions of so-called “climate change” regulations were immediately in a tizzy.
Here in Washington, Gov. Jay Inslee immediately called a press conference, announcing his intentions to ramp up global warming prevention policies.
Indeed, under his administration, the state has already been pushed far left, attempting to eliminate coal and fuel oil use, bar propane and natural gas amenities in new constructions and even driving for an end to gasoline- and diesel-powered vehicles.
Career Washington politician U.S. Sen. Patty Murray, D-Shoreline, called the decision “rewriting the law to fit a far-right extremist agenda.” Like Inslee, she has been a regular recipient of deep-pocketed campaign contributors advocating for executive rule on climate decisions.
On the surface, the case was about the EPA creating rules with the equivalent force of law. In reality, it was more about the end of over-reaching bureaucratic rule through “delegated authority” on major issues.
If you read between the lines, the U.S. Supreme Court ruling said the Constitution requires Congress to make and pass laws. Over the last several decades, Congress has routinely passed capacious laws without specificity, giving bureaucrats far, far too much authority.
Simply put, the Constitution requires Congress to pass laws, not hand over its authority to a bureaucratic, executive branch agency.
The Supreme Court decision essentially calls out Congress for its failure to perform its Constitutional duty. It also calls out Congress for delegating its powers to the executive branch of government under the direction of the president—at least on major issues like global warming, energy production, etc.
But if the decision is only about Congress actually being required to do its job, why is Gov. Inslee so anxious to get in front of the camera.
The answer is simple—the state Constitution requires the Legislature to make laws, not delegate its authority to an agency under his (or any other governor’s) control.
Looking back on the last two years, you can see why his angst is showing.
In 2019, the Legislature delegated the governor emergency powers for times of physical unrest and physical natural disasters.
Unfortunately for Washingtonians, Gov. Inslee latched onto the loopholes, and declared a statewide emergency due to the coronavirus outbreak in parts of the state.
He then used his perceived authority to order shutdowns of businesses, public lands and waters, schools and much, much more statewide, even though there wasn’t a bonafide emergency in many counties. He then marshaled his minions in state executive agencies to enforce his mandated shutdowns, fine businesses, lock gates to boat launches and trails, and more.
Interestingly, the law as written didn’t give the governor, Fish and Wildlife, Liquor and Cannabis Board, Department of Health or any other executive agency to create “laws.”
A number of lawsuits in Washington state attempted to rectify the situation. Ultimately, those lawsuits fell under court jurisdictions of gubernatorial appointed judges, who strongly supported the governor’s mandates, despite their probable unconstitutionality. The governor also sent his hired legal guns in Olympia to other areas of the state to push any lawsuits into courts that arguably he controls.
With the U.S. Supreme Court’s ruling in the West Virginia case, there’s clearly a renewed effort by the courts to return to a more original interpretation of constitutional text. That means Congress is required to make specific laws, not hand over law-making to bureaucrats.
The likely extension of that interpretation would require state Legislatures to fulfill their constitutional law-making responsibilities, rather than delegate law-making to an executive branch agency.
Should that happen, the era of big-government bureaucratic rule may also come to a grinding halt in Washington state. And that’s making Gov. Inslee nervous.
— Roger Harnack is the co-owner and publisher of Free Press Publishing. Email him at [email protected].
Roger Harnack is the owner/publisher of Free Press Publishing. Having grown up Benton City, Roger is an award-winning journalist, columnist, photographer, editor and publisher. He's one of only two editorial/commentary writers from Washington state to ever receive the international Golden Quill. Roger is dedicated to the preservation of local media, and the voice it retains for Eastern Washington.
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