Supreme Court

Scalia Decries 'Unelected Agency Officials Exercising Broad Lawmaking Authority' in EPA Case

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The U.S. Supreme Court ruled 6-2 this morning in favor of the Environmental Protection Agency in a case testing the EPA's powers to interpret and enforce an "ambiguous" provision of the Clean Air Act. According to the majority opinion of Justice Ruth Bader Ginsburg, "we read Congress' silence as a delegation of authority to EPA to select from among reasonable options."

The case originated with the problem of regulating air pollution that travels from "upwind" states to "downwind" states. According to the Court, "EPA must have leeway in fulfillng its statutory mandate" to combat this problem. "We routinely accord dispositive effect to an agency's reasonable interpretation of ambiguous statutory language," declared Justice Ginsburg, in a ruling joined by Chief Justice John Roberts and Justices Anthony Kennedy, Stephen Breyer, Sonia Sotomayor, and Elena Kagan (Justice Samuel Alito was recused).

Writing in dissent, Justice Antonin Scalia, joined by Justice Clarence Thomas, fired back at the majority's deference to the EPA. "Too many important decisions of the Federal Government are made nowadays by unelected agency officials exercising broad lawmaking authority, rather than by the people's representatives in Congress," Scalia declared.

The opinion in EPA v. EME Homer Air City Generation is available here.

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  1. I we read Congress’ silence as sheer incompetence.

  2. Silent delegation. Huh, one would think that express legislation would be necessary.

    1. Advisory agencies, I keep saying. Advisory agencies. No one’s listening.

  3. “…Too many important decisions of the Federal Government are made nowadays by unelected agency officials exercising broad lawmaking authority…”

    The irony in that statement… it burns..

  4. According to the majority opinion of Justice Ruth Bader Ginsburg, “we read Congress’ silence as a delegation of authority to EPA to select from among reasonable options.”

    SO if Congress doesn’t act in some way to limit the liberty of Americans, then the Executive Branch by default has the ability to do so?

    Meh, explains the Obama admin’s consternation that people are complaining about his NSA spying on everybody without a warrant.

    1. So much for “enumerated powers,” etc.

  5. “SO if Congress doesn’t act in some way to limit the liberty of Americans, then the Executive Branch by default has the ability to do so?”

    Absolutely, because inaction == action, and implied == demanded..

  6. Interestingly, Scalia also has a long diatribe about how it was illegal for EPA to tailor the rule to encourage cheap reductions in air pollution over expensive ones. Somehow I doubt that’s going to be anyone’s favorite passage.

  7. The case originated with the problem of regulating air pollution that travels from “upwind” states to “downwind” states. According to the Court, “EPA must have leeway in fulfilling its statutory mandate” to combat this problem.

    Shouldn’t they first have to prove that its a problem, with tangible effects, and then act as an intermediary to reach a monetary settlement between the injured and the liable? Anything else is just a money-laundering and extortion scheme.

  8. Scalia’s on a roll lately.

    “we read Congress’ silence as a delegation of authority to EPA to select from among reasonable options.”

    She is, in my opinion, correct.

    According to our more leftish-leaning commenters, the EPA and other sundry agencies are perfectly accountable and democratic.

    If you receive one of those missives in the mail reading, “CEASE AND DESIST” with an attached provision that you’ll be fined $30,000 a day if you don’t begin immediate remediation, that all one must do is write a letter to one’s representative detailing your remonstrations, affix the stamp and place in mailbox. Shortly thereafter, voila! Accountability!

    1. You are a comedy writer by trade, I am guessing.

      1. Sounds more like tragedy to me.

  9. Also, bear in mind that EPA is expressly delegated authority to regulate states when they make a “significant contribution” to air pollution outside their borders. Congress was silent on how to do that, not whether it should be done.

  10. “Too many important decisions of the Federal Government are made nowadays by unelected agency officials exercising broad lawmaking authority, rather than by the people’s representatives in Congress,” Scalia declared.

    This from a man who lets the cops search you because a dog told them to.*

    *Though not anonymous tipsters. Thanks, Nino.

  11. we read Congress’ silence as a delegation of authority

    The problem, perfectly encapsulated, in nine words. Congress refuses to defend its powers,(because they’re too busy prepping for the next election) but delegates them to the Executive Branch, (which is always happy for more jobs to give to friends, family, donors and other assorted cronies) and the Supreme Court signs off on the arrangement.

  12. I think this ruling can be used quite creatively, if one just tries.

    Whatever Congress is silent on is a delegation of authority to me (via the 10th Amendment – remember that one?)

    1. 10th amendment < Commerce Clause (fucking wickard)

  13. EXTURNALITEEZZ!

    /Tony

  14. Too many important decisions of the Federal Government are made nowadays by unelected agency officials exercising broad lawmaking authority, rather than by the people’s representatives in Congress,” Scalia declared.

    Because constitutionally, it should be only just enough?

    What a fucking idiot.

    1. I interpreted Scalia’s quote as an appeal to the masses. More how do you people put up with a congress that does this to you. But to each their own.

  15. Scalia has helped sow the seeds for this by signing onto the Chevron doctrine over the decades. Agencies keep pushing that doctrine further and further. First they got deference to interpret ambiguous statutes where the issue fell within their technical expertise. Then it became any ambiguity in a statute. Now they can fill in congress’s silence within a statute. Pretty soon they’ll have pushed it to the point that they don’t need to cite any statute at all.

  16. “Too many important decisions of the Federal Government are made nowadays by unelected agency officials exercising broad lawmaking authority, rather than by the people’s representatives in Congress,” Scalia declared.

    Racist.

    Sarcasm aside, I propose that anything carrying the weight of law must first go through the legislative process.

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