Are SCOTUS justices now the policymakers of last resort?

On Dec. 27, five Republican-appointed Supreme Court justices stopped President Biden from terminating the emergency orders imposed by the Trump administration at the height of the COVID-19 pandemic that severely limited immigration to the United States to reduce the risk of contagion. Justice Neil Gorsuch dissented, explaining, “we are a court of law, not policymakers of last resort.”

Gorsuch’s point is well-taken. But it is sharply at odds with the position he and the other five Republican-appointed justices took six months ago, in West Virginia v. EPA, when they rejected the Clean Power Plan adopted by President Obama’s Environmental Protection Agency (EPA) to protect our environment and reduce global warming.

The Clean Air Act had directed the EPA to determine the “best system of emission reduction” and the “degree of emission limitation achievable through the application of that system,” and then impose that emission limit. But when the Obama EPA concluded the “best system” would reduce carbon pollution by transferring some electricity generation from coal to cleaner sources, Gorsuch and the other Republican-appointed justices would not allow it.

These justices did not, and could not, show the Clean Air Act does not authorize the Clean Power Plan. They conceded that “as a matter of ‘definitional possibilities,’” shifting the source of electricity generation “can be described as a ‘system’ … capable of reducing emissions.” And they acknowledged 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.”

Yet, they decided to prevent the implementation of the Clean Power Plan by announcing a new so-called “major questions doctrine.” That “doctrine” permits the court to preclude executive agency action when a majority of the court believes the “breadth of the authority that [the agency] has asserted” and its “economic and political significance” “provide a ‘reason to hesitate before concluding that Congress’ meant to confer such authority.”

And on what basis will the court decide whether “to hesitate” about whether Congress “meant to confer” the authority specified in a statute? Will the court take testimony from Congress concerning its intent? No. The court did not do that in the EPA case. Instead, it based its decision to invoke the doctrine on its own “presumption” about what Congress intended, and its own view of what it was “likely” Congress “would do,” even though the words of the Clean Air Act show Congress authorized the Clean Power Plan.

That is a complete departure from the way the current Republican-appointed justices normally say they interpret statutes. They proclaim they are “textualists” who enforce the plain language of the law without looking at what Congress “would do” or delving into its intentions.

Their announcement that they will not follow their own “textualist” dogma if in their view there is a “reason to hesitate” about whether Congress intended what the words of a statute actually say effectively gives the court the unlimited and unchecked power to nullify or rewrite the words of any statute. The court has arrogated to itself the right to do just what Gorsuch said it should not do — assume the role of the ultimate policymaker.

The real complaint of the Republican-appointed justices is that in their view Congress delegated too much authority to the EPA in too broad a way. But under our constitutional system, the appropriate branch to address any such concern is Congress, not the court.

As Justice Elena Kagan, joined by former Justice Stephen Breyer and Justice Sonia Sotomayor, explained in dissent in the EPA case, “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 damage is not only to our health and our environment. This assumption of authority by an unelected branch of government undermines our democracy.

If Congress believes the language of a statute does not reflect what Congress intended or wants to cut back on the broad authority or directions it has given to an executive agency, it is free to amend the statute or enact new legislation. But nothing in the Constitution gives the Supreme Court the authority to do so.

The “major questions doctrine” is particularly troubling because most if not all of the current Republican-appointed justices who comprise a super-majority on the court believe in small government and that Congress should not delegate significant responsibilities to the executive branch. Their new “doctrine” will enable them to put that philosophy into practice by reducing or eliminating the authority Congress grants to the executive branch and executive agencies.

And that very nature of the “doctrine” means it will not operate in a neutral way. Most Democratic voters believe government should play a far bigger role in protecting our health, our environment and our fundamental liberties, in eliminating discrimination, and in providing a safety net, to take just a few examples, than the view of the Republican-appointed justices. These justices will, therefore, likely use the “doctrine” to restrict Democratic-controlled Congresses and Democratic presidents from doing what they were elected to do. On the other hand, most current Republican members of Congress and most conceivable future Republican administrations share these justices’ limited-government philosophy. The doctrine is, therefore, far less likely to be used against their legislation and administrations.

The risks the doctrine poses to Biden’s agenda are very real. For example, in February 2023, the court will consider a challenge by six Republican-controlled states to Biden’s decision to provide student debt relief, a policy on which he campaigned on — and he was elected president with the largest vote any presidential candidate has ever received. The six states ask the Supreme Court to invoke the “major questions doctrine” to find that Biden lacks the authority to provide the debt relief. The court should resist that invitation to again take on the role of unelected policymaker.

Michael J. Dell is a New York lawyer who litigates and writes about constitutional issues.