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Kill-the-Fillibuster

Demonstrators call for the abolition of the Senate filibuster at a June 10, 2021 protest in New York City. (Photo: Erik McGregor/LightRocket via Getty Images)

Supreme Court's Attack on Regulatory State Means Senate Filibuster Must Go

For the Supreme Court to give itself the authority to say whether Congress intended to delegate this much regulatory authority to the EPA is a truly radical act—more radical than any Supreme Court in modern history.

Today the Supreme Court—again, with the 6 Republican appointees on one side and the 3 Democratic appointees on the other—limited the Environmental Protection Agency's ability to regulate carbon emissions from power plants. This ruling deals a major blow to America's (and the world's) efforts to address climate change. Also—as with its decision reversing Roe v. Wade—today's ruling has far larger implications than the EPA and the environment.

The financial backers of the Republican Party are getting exactly what they paid for.

West Virginia v. EPA is the latest battle pitting America's big businesses (in this case Big Oil) against the needs of average Americans. In this Supreme Court—containing three Trump appointees, two George W. Bush appointees, and one George H.W. Bush appointee—big business is winning big time. The financial backers of the Republican Party are getting exactly what they paid for.

Writing for the majority, Chief Justice John Roberts admitted that "capping 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 to the crisis of the day.'" But then came the kicker: "But it is not plausible," he wrote, "that Congress gave EPA the authority to adopt on its own such a regulatory scheme."

Not plausible? Congress enacted the Clean Air Act in 1970. As with all laws, Congress left it to an administrative agency—in this case, the EPA—to decide how that Act was to be implemented and applied. That's what regulations do: They implement laws.

For the Supreme Court to give itself the authority to say whether Congress intended to delegate this much regulatory authority to the EPA is a truly radical act—more radical than any Supreme Court in modern history. If Congress has been unhappy with decades of EPA regulation, Congress surely has had the power to pull that authority back. But it has not.

As Justice Elena Kagan, writing for the dissenters, countered: "The Court appoints itself—instead of Congress or the expert agency—the decision maker on climate policy. I cannot think of many things more frightening."

The implications of the ruling extend to all administrative agencies in the federal government—to the Securities and Exchange Commission implementing the Securities Acts of 1933 and 1934, to the Federal Trade Commission applying the Federal Trade Commission Act of 1914, to the Department of Labor implementing the Fair Labor Standards Act of 1938, and so on, across the entire range of government—and the entire range of regulations designed to protect consumers, investors, workers, and the environment. (This same Supreme Court has ruled that the Centers for Disease Control and Prevention was not authorized to impose a moratorium on evictions and that the Occupational Safety and Health Administration was powerless to tell large employers to have their workers be vaccinated or undergo frequent testing.)

In passing laws to protect the public, Congress cannot possibly foresee all ways in which those laws might be implemented and all circumstances in which the public might need the protections such laws accord. Starting today, though, all federal regulations will be under a cloud of uncertainty—and potential litigation.

A final implication of today's ruling is that the filibuster has to go. If the Supreme Court is going to require that Congress be more active and specific in protecting the environment or anything else, such a goal is implausible when 60 senators are necessary to enact it. Senate Democrats now have it in their power to abolish the filibuster. Today's case should convince them they must.


© 2021 robertreich.substack.com
Robert Reich

Robert Reich

Robert Reich, is the Chancellor’s Professor of Public Policy at the University of California, Berkeley, and a senior fellow at the Blum Center for Developing Economies. He served as secretary of labor in the Clinton administration, for which Time magazine named him one of the 10 most effective cabinet secretaries of the twentieth century. His book include:  "Aftershock" (2011), "The Work of Nations" (1992), "Beyond Outrage" (2012) and, "Saving Capitalism" (2016). He is also a founding editor of The American Prospect magazine, former chairman of Common Cause, a member of the American Academy of Arts and Sciences, and co-creator of the award-winning documentary, "Inequality For All." Reich's newest book is "The Common Good" (2019). He's co-creator of the Netflix original documentary "Saving Capitalism," which is streaming now.

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