On a recent episode of Amicus, Dahlia Lithwick spoke with Richard Lazarus, an environmental lawyer and Harvard professor who wrote The Rule of Five: Climate History at the Supreme Court, about the cases the Supreme Court will take up this term that could have a huge impact on our ability to respond to the climate change crisis. Lazarus further discusses the court’s shift toward deregulation and the looming administrative crisis that could provoke. A portion of their conversation, which has been condensed and edited for clarity, is transcribed below.
Dahlia Lithwick: I want to start by asking you to talk about deregulation writ large. One of the reasons I wanted to have you on, and one of the reasons I think this cert grant for West Virginia v. EPA matters, is that it’s at the sharp edge of this much, much bigger legal story about Chevron deference, and anti-delegation doctrine, and attempts to shrink the power of federal agencies. We’re talking about doctrines that have been out of favor for a very long time. So I wonder if you would explain the web of thinking about deregulation and this moment that we’re in, before we get to how it affects the EPA and climate specifically.
Richard Lazarus: Here’s what’s happened at the Supreme Court, and this has been building for several years, or maybe a few decades, with its full potential now maybe realized with President Trump’s addition of three justices of the court. For several decades, ever since FDR’s New Deal, we have had an administrative state at the federal government where social regulation of many kinds, whether it’s labor, whether it’s civil rights protections, whether it’s environmental protections, whether it’s consumer product safety conventions, they’ve all depended upon the same FDR model. And that is: Congress passes a law that guarantees certain protections to individual citizens, and then it delegates authority to federal agencies. And it’s their job to take these statutes written in broad terms and to fill in all the details and to come up with regulations that actually achieve congressional purposes.
The assumption has been that it’s not possible for Congress to anticipate all the details ahead of time, and it’s not possible for Congress to amend the laws every time something new comes up, so they pass very broad, capacious language. And that’s been the brilliance of the New Deal, and it’s something that the country has become dependent upon, really, for decades—that basic structure that we call the administrative state. And the FDR New Deal administrative state has been wildly successful in the United States. That is currently under serious constitutional challenge. It was under serious constitutional challenge in the 1930s, but then the Supreme Court basically retreated from throwing out those laws. And it’s not been in serious constitutional challenge ever since then, but now it is.
It’s under challenge, basically, on one theory with several expressions. The theory is that it violates separation of powers for Congress to give to the executive branch, those administrative agencies, such sweeping authority—that Congress itself has to fill in all the details in the statutes they pass.
What’s happened now is the Supreme Court has been suggesting that Congress doesn’t have that power to delegate, and the two different ways it’s expressed that in terms of constitutional doctrine are, one, the nondelegation doctrine. And the last time the court struck down a federal statute on the nondelegation doctrine was 1934. They did it twice. They had one good year, but not since then. So the idea is that Congress just can’t do that. They can’t delegate that authority to a federal agency. They have to write the details themselves.
The second expression, which is one that may turn out to have more practical and more immediate impact, is called the major questions doctrine. And that says that the courts are not going to read a federal statute Congress has passed to have authorized the agency to fill in those details if the regulation would have a major impact on the economy, on society. If it’s such a big deal regulation, then in that subcategory of cases, they’re going to want to see that Congress has specifically thought about the issue. Now, one can come up, as an abstract matter, with an argument for why that kind of makes sense. If we’re talking about a really big deal and a really big law, why shouldn’t Congress have to pass it in the first instance? Well, one, we thought we crossed that bridge in the 1940s. But beyond that, the real problem we have now is a practical one, and that is: Congress doesn’t pass any big laws anymore. The only thing they tend to pass are budgets. Or after the Gulf War or after 9/11, they’ll pass an anti-terrorism law. The last time, for example, they passed a major environmental law was 1990. It’s the Clean Air Act. That’s 30 years ago. In the ‘70s and ‘80s, up to then, Congress passed law after law after law. It was really impressive—detailed laws and thoughtful laws with bipartisan majorities, overwhelmingly, especially in the environmental protection area. But since 1990, they don’t pass anything.
So the agencies are left with this old language, which is very capacious. So if regulation in favor of the public health and welfare, and to protect things like the environment or worker safety, if it depends upon Congress passing new laws, in short, good luck with that.
So the combination right now of a court that is saying only if Congress says it specifically are we going to say that the agency has the authority, combined with the fact that Congress doesn’t pass anything, and we have a lot of looming crises—that’s social welfare law’s worst nightmare. And that’s where we are right now. And that’s why people are so worried.
This threat based on separation of powers—a very muscular notion of separation of powers—it’s been brooding among the court, probably for the past 20-plus years, but there was never a majority for it. You saw Justice Scalia talk about it. You certainly saw Justice Thomas write about it, but they were two votes. There was never a majority for it. Chief Justice Rehnquist was too much of a pragmatist for that—Justice O’Connor, Justice Kennedy, certainly Justice John Paul Stevens and Justice David Souter. So there was never a majority to realize Justice Thomas’ quite radical vision of separation of powers. But with three new justices on the court, there is reason to think there might be a working majority to give at very least an aggressive application of the major questions doctrine—and maybe the whole thing, which is an aggressive application of the nondelegation doctrine.
And just for point of clarification, if the court says it is not the province of the agencies to regulate unless they’ve specifically been delegated the powers, and also, Congress is dysfunctional in the extreme, doesn’t this arrogate immense amount of power back to the courts?
Is that part of the attraction here, that it allows the court to be making policy in a way that should be anathema to—
Yeah, and that’s certainly somewhat ironic, given that the revolution of the court started with Ronald Reagan, with the notion the courts were too active, and too quick to second-guess the executive branch, and too quick to enjoin the executive branch. We’ve come full circle on this. And what began as a conservative judicial revolution against judicial activism has instead become a conservative notion of the Constitution, which is based on judicial activism. And that is second-guessing executive branch actions, whether it’s, as we’ve seen recently, under free speech or free exercise, or on limits of the ability of Congress in the first instance to delegate things to the executive branch. So that’s why we’re seeing much more questioning of the executive branch in a very active way by what is not a modest federal judiciary, especially in the Supreme Court.
And I feel like I need to ask this also, just to get clear in my own head. But when I read Neil Gorsuch on this, or Brett Kavanaugh on this, or certainly Clarence Thomas on this, critics on your side tend to say, “This is just nihilism.” What is the long game here? The long game cannot be to hobble the government from solving problems. Is this just a pristine view of separation of powers, some kind of life in a bubble that is separate entirely from the reality that one needs an administrative state in order to function?
I tend to be a fairly traditional person when it comes to the Supreme Court. I don’t tend to view the justices as partisan political hacks, like many people increasingly do, but I have a hard time resisting the idea that the rise of these issues, the rise against deference in the executive branch and how it took hold during the Obama administration, was happenstance. It came at a time when conservative judges and justices didn’t like what the executive branch was doing. I mean, Chevron, which is this doctrine that has been around since the mid-1980s, that court should defer to agency interpretations when the language the agency is interpreting is ambiguous, was championed by Justice Scalia in the 1980s and 1990s. It only became a violation of separation of powers, and potentially unconstitutional, when we had a progressive liberal administration during Obama. That’s when, all of a sudden, Chevron became anathema.
What had been championed by conservatives as judicial modesty instead became something they thought was unconstitutional. And Judge Gorsuch, before he became Justice Gorsuch, actually campaigned in many ways for the position, by making clear he thought that, and in certain respects, Judge, now Justice, Kavanaugh did the same on the D.C. Circuit. So I don’t like to think of them as pure partisans, but I have a hard time embracing the idea that they came to this realization of the right role of the Congress and the executive branch that, at first, came to the forefront at a time when the executive branch was doing things which were contrary to their own policy preferences.