Long gone is the era of the “The Buck Stops Here” mentality in Washington, DC. Lately, politicians in the nation’s capital will seek any and all ways to avoid taking responsibility for the state of the country. One of the ways this takes shape is members of Congress delegating their responsibilities to unelected bureaucrats in the executive branch. That way Congress can try to take credit if things go well and foist blame if things go poorly. However, the Supreme Court may have just dealt a crushing blow to this legislative cowardice.
In West Virginia v. EPA, the Court ruled in a 6-3 opinion that the Clean Power Plan issued by the Obama administration’s Environmental Protection Agency (EPA) was unconstitutional. The ruling relied heavily on the “major questions doctrine,” which dictates that major policy decisions should be debated and decided by Congress, not a bureaucracy. Because of the wording of Chief Justice John Roberts’ opinion, it is likely that this decision will extend far beyond the EPA in its impact on public policy.
One area to keep a close eye on is internet regulation. In 2015, the Obama administration enacted the Open Internet Order – more commonly referred to as an attempt to impose “ net neutrality” – classifying the web as a Title II public utility under the Communications Act. Opponents strongly argued that Congress had not granted the Federal Communications Commission (FCC) authority to make such a sweeping change. Many of those principles were echoed by proponents of West Virginia’s case regarding the Clean Air Act.
In fact, back when the Open Internet Order was going through the court system, then-DC Appeals Court Judge Brett Kavanaugh made that exact same case in his dissent, arguing the order was unconstitutional. The language Kavanaugh used in that 2015 case was cited by Chief Justice Roberts in his opinion for the court in West Virginia, “We presume that Congress intends to make major policy decisions itself, not leave those decisions to agencies.”
The internet had existed as a Title I information service for years. Many courts had struck down attempts to implement the types of regulations present in the Open Internet Order onto Title I services. In order to get the regulatory outcome the FCC wanted, they would have to upset years of precedent by changing the classification to Title II. They were successful in 2015, but the re-classification was rolled back two years later with the Restoring Internet Freedom Order under then-FCC Chairman Ajit Pai, restoring the pre-2015 Title I classification.
Now that the legal principles opposing the Open Internet Order have been affirmed by the highest court in the land, another unilateral internet re-classification by FCC to Title II will be legally dubious at best and blatantly unconstitutional at worst. A major re-classification of the internet that opens it up to a number of regulations, including price controls, is clearly a “major question” of public policy that ought to be decided by elected representatives of the people of the United States before any unelected bureaucrat sinks their hooks into one of the most important parts of our nation’s economy.
There is a reason the nation’s governmental framework was structured this way. Should the bureaucracy have been allowed to operate as unilaterally as it has on some major questions, there would be a never-ending regulatory game of ping pong. Regulatory frameworks would shift dramatically every four to eight years, depending on which party holds the White House. This is what happened in 2015 and 2017 with the Open Internet Order and Restoring Internet Freedom Order. This approach affords little to no certainty for American families and businesses.
Because Congress is often slower to act when it answers a major question of public policy, it has a longer lasting effect. Major questions are left to them so the American people don’t have to wonder every few years whether the rules will change and the rug will be pulled out from under their plans for their futures. That is no way to govern a nation and the understanding of this reality is the bedrock of court decisions like the one in West Virginia.
The court’s ruling in West Virginia is by no means a death knell for the Clean Air Act or for Title II regulations. There is little doubt that those questions will still be meaningfully and fiercely debated by both sides in the years to come. However, the court has thankfully added clarity that the answers to these major questions must come from the halls of Congress as opposed to coming from a unilateral bureaucratic mandate made by a political appointee.
Dan Savickas is the director of tech policy at the Taxpayers Protection Alliance.