WASHINGTON – On the last day of a turbulent term that included rulings on what the Constitution has to say about abortion, arms and religion, the Supreme Court issued a different kind of ruling, one that echoes the words of the Clean Air Act turned.
Without ‘clear congressional authorization’, the court said, the Environmental Protection Agency was powerless to aggressively address climate change. In the past, this may have been the beginning of a dialogue with Congress, which, after all, has the last word on what statutes mean, because it can always adopt new ones.
But thanks to its legislative bottleneck, Congress nowadays very rarely responds to Supreme Court decisions interpreting its statutes – and this means that the balance of power has shifted between the branches, with judges rising.
The consequences were particularly sharp in Supreme Court rulings on global emergencies such as climate change and the coronavirus pandemic, but the phenomenon is a common one. Congress largely fell silent as a partisan stalemate gripped Capitol Hill, exacerbated by the increasing use of the filibuster, which blocked almost all major legislation in an evenly divided Senate. The result is a more dominant court.
This was not always the case.
“If you go back to the ’80s, every time the court did something that Congress did not like, they passed a law,” Richard J. Lazarus, a law professor at Harvard, said. “It was an iterative process between Congress, the agencies and the courts.”
Congress’s lack of action following Supreme Court rulings on statutes is not particularly new, but it has gained additional importance as the court has turned to the right and increasingly insists on clear allocations of congressional authority to executive agencies. In addition to the ruling on climate change, the court recently stated that the Centers for Disease Control and Prevention is not authorized to impose a moratorium on evictions and that the Occupational Safety and Health Administration is not authorized to tell large employers to tell their workers to have. vaccinated against Covid-19 or undergo regular testing.
Congress is, of course, powerless to revive a law that the Supreme Court scrapped as unconstitutional. In such cases, the court gets the last word, and only a constitutional amendment or a later domination can undo its work.
The court’s decisions on campaign funding, including one in May, were based on the First Amendment and are examples of such constitutional decisions. The decision to Roe v. Wade, on the other hand, eliminated a constitutional right that allowed state and federal lawmakers to restrict or extend access to abortion.
But there are many other cases in which the court merely interprets statutes enacted by Congress. Its task in those cases is to determine what a law means, not to test its constitutionality. If Congress does not agree with the court’s interpretation, it is free to ignore the decision.
“In the ‘70s and ‘“In the ’80s, Congress passed major legislation all the time,” said Bruce Huber, a law professor at Notre Dame. “When something went wrong, there was a real conversation between the court and the congress. The court would say, “Hey, this is not an investigation.” And Congress would come back and say, ‘You’re right. We’ll fix it. ‘ And the next session you will get a major amendment to the Clean Air Act or the Clean Water Act. ”
In what the authors of a 2014 study called “the golden era of domination,” Congress set aside 86 statutory decisions of the Supreme Court in the eight-year period that began in 1991. Since then, the study found, “there has been a very significant decline.”
“Whatever power the court has to begin with, which is significant, it is strengthened if Congress is unable to gather domination,” said William N. Eskridge Jr., a law professor at Yale who led the study. with Matthew R. Christiansen, who is now general counsel of the Federal Energy Regulatory Commission.
Indeed, Professor Huber said, “with things as polarized as they are, the possibility of amending a statute has diminished to the point of disappearance.”
The most important environmental laws have not been amended in decades. The Clean Air Act, which was involved in Thursday’s climate issue, was last amended in 1990.
Since Congress will not act, Professor Lazarus said, “agencies like EPA are being downgraded to work with increasingly old statutes to get their work done to address modern issues.”
This can make it difficult for an administrative agency to identify a clear grant of authority to address an issue that is not fully provided for by the drafters of the law. One approach in such circumstances is for courts to adjourn to the agency when the statutory text is ambiguous.
That approach, called Chevron respect, has long been attacked by conservatives, but it has survived the recent Supreme Court term.
Another approach is that courts require a clear statement from Congress authorizing agencies to act where important political or economic issues are at stake. That approach, called the main questions doctrine, stumbled the EPA’s power on Thursday.
The most prominent recent example of a congressional response to a Supreme Court ruling is 13 years old. This came after Ledbetter v. Goodyear Tire & Rubber Company, the 2007 decision that said Title VII of the Civil Rights Act of 1964 imposed strict time limits for filing workplace discrimination packages.
In her disapproval, Judge Ruth Bader Ginsburg reminded lawmakers that on earlier occasions she had set aside “a concise interpretation of Title VII”.
“Again,” she wrote, “the ball is in Congress’ court.”
Congress responded with the 2009 Lilly Ledbetter Fair Pay Act, which dominated the 2007 decision.
Judge Neil M. Gorsuch on Wednesday quoted the Ledbetter ruling in an adversary urging Congress to ignore a decision that he said dealt a blow to the sovereignty of Native American tribes.
“Thanks to this court’s heinous abuse of legislative power,” he wrote, quoting Judge Ginsburg, “the ball is back in Congress’ court.”
He did not stop there, as Judge Brett M. Kavanaugh’s majority opinion noted. “The difference goes as far as drafting a proposed statute for Congress,” Judge Kavanaugh wrote.
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But if recent practices are any guideline, congressional action is unlikely.
Consider the Supreme Court’s 2013 ruling in Shelby County v. Holder, who invited a congressional response that the judges should have known would not come. The decision, which effectively destroyed a key provision of the Voting Rights Act of 1965, did so indirectly by deleting the law’s formula to determine which states and territories are covered by the law’s requirement that changes to voting procedures be clarified by federal authorities. word.
“Congress can draft a different formula based on current conditions,” Chief Justice John G. Roberts Jr. said. written for the majority. Congress did not introduce a new formula.
There is also no likelihood that Congress will respond to the decision on climate change with the clear authority demanded by the Supreme Court.
“Rather, insist that an agency can promulgate an important and significant climate rule only by showing ‘clear congressional authority’ at a time when the court knows that Congress is effectively dysfunctional,” Professor Lazarus said. the court for the national government’s ability to protect public health and well-being. “
The Supreme Court has said it requires Congress to speak clearly in the interest of democratic accountability. In the climate decision, Chief Justice Roberts wrote that the people’s elected representatives must make decisions where the consequences are enormous.
“A decision of such magnitude and consequence rests with Congress itself, or an agency acting under a clear delegation from that representative body,” he wrote.
But the net effect of that approach was to strengthen the Supreme Court’s own authority.
“They say they are doing it for democracy purposes, but the fact is that they are increasing their own power,” Professor Lazarus said.
If democracy works, Professor Huber said, there will be new federal legislation to address the threat to the planet.
“If we had a congress that reflected in any way what the median American voter wanted,” he said, “we would have relatively aggressive climate action.”