by Mary-Christine (“M.C.”) Sungaila

Two cases decided by the Supreme Court on the last day of this past Term highlight important aspects of separation of powers, including the scope of administrative power.

West Virginia v. Environmental Protection Agency, 142 S. Ct. 2587 (2022) centered on the EPA’s efforts to address climate change. EPA regulations created a system of emission reduction by coal-fired power plants, requiring these facilities to reduce their own production of electricity or to subsidize increased generation by natural gas, wind, or solar sources. The Court, applying the major questions doctrine, addressed whether these regulations fell within the power granted by Congress to the Agency under the Clean Air Act. The major questions doctrine—rarely invoked explicitly by name before this—requires Congress to include clear specifics when authorizing major power to agencies through legislation.

In the 6-3 majority opinion written by Chief Justice Roberts, the Court held that the regulations were not within the authority vested by the Clean Air Act. While “[c]apping 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, the Chief Justice observed, “[a] decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” Such a clear congressional directive, the majority found, was missing from the statute.

There was reason to be skeptical that these regulations fell within congressionally delegated power, the majority wrote, because this newfound power—which would allow the Agency to substantially restructure the American energy market—would necessarily require it to move far beyond its original focus on limiting the amount of emissions, and allow it to regulate in a way that Congress itself had previously legislatively rejected. “[B]y forcing a shift throughout the power grid from one type of energy to another,” the rule in the majority’s view became about much more than pollution control and began to direct investment in different types of energy, leading to a fundamental revision of the statutory scheme of regulation.

Justice Gorsuch’s concurrence explained in more detail why and how, under the major questions doctrine, “administrative agencies must be able to point to ‘clear congressional authorization’ when they claim the power to make decisions of vast ‘economic and political significance.’” The major questions doctrine protects the Constitution’s separation of powers and the Constitution’s rule vesting federal legislative power in Congress, which “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.’” Justice Gorsuch observed that the framers deliberately sought to make lawmaking difficult at the federal level, and to allow the states and other local governments the opportunity to serve as laboratories for novel social and economic experiments; “[p]ermitting Congress to divest its legislative power to the Executive Branch would ‘dash [this] whole scheme.’”

The doctrine, Justice Gorsuch explained, applies “when an agency claims the power to resolve a matter of great ‘political significance,’” and requires an agency to point to clear congressional authorization when it seeks to regulate a major portion of the American economy” or seeks to intrude into “a particular domain of state law.” In assessing whether there is a clear congressional statement authorizing an agency’s action, courts should consider the agency’s past interpretation of the relevant statute and whether the challenged action aligns with the Agency’s assigned mission and expertise. When, as here, “the people’s elected representatives in Congress” “have not clearly granted the agency the authority it claims for itself,” the Court should maintain the constitutional balance.

Justice Kagan, in dissent, noted the urgency and importance of climate change, and that the regulations were within the agency’s expertise. She observed that, rather than focusing on the strict text of the statute, the majority relied on the general principles embodied in the major questions doctrine. Justice Kagan found that the statute did authorize the EPA to do what it did, because the regulations were within the agency’s sphere of expertise.

In another opinion decided the same day, Biden v. Texas, 142 S. Ct. 2528 (2022), the Court addressed the Executive Branch’s power to revoke the Migrant Protection Protocols (also known as the “Remain in Mexico” immigration policy). The Chief Justice, again writing for the majority, this time concluded that the immigration statute conferred on the Executive Branch discretionary authority to return aliens to Mexico while their immigration proceedings are pending.

In his concurrence, Justice Kavanaugh observed that “[b]ecause the immigration statutes afford substantial discretion to the Executive, different presidents may exercise that discretion differently. That is Administrative Law 101.” But “[t]he 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.”

In dissent, Justice Alito (together with Justices Gorsuch and Thomas) concluded that, properly interpreted, the immigration statute did not confer discretionary authority on the Executive Branch. Justice Alito hinged his decision on what he saw to be dueling language in the immigration statute: one provision that mandated the return of immigrants to their country of origin or country through which they seek to enter the United States, and another provision, on which the majority relied, which appeared to vest the Executive Branch with discretion to require immigrants to come to the United States while they await the outcome of their immigration proceedings or to remain in another country.

Taken together, these two decisions showcase the need for clear congressional authority for agency or executive branch action. They also herald a new era on the Court in which the exercise of administrative power will be closely scrutinized.

Mary-Christine (“M.C.”) Sungaila a member of the OCBA Board of Directors, chairs the Appellate Practice Group at Buchalter. She can be reached at msungaila@buchalter.com.