Da Techguy's (no longer backup) Blog

Lost all of the exhilaration revolving around the Supreme Court’s long overdue overturning of Roe versus Wade was a much needed decision, which overturned a harmful policy instituted by the Environmental Protection Agency under the Obama Administration. 

This decision is discussed great detail in this article, How The Supreme Court Upended EPA’s Power Grab And Curbed The Administrative State (thefederalist.com)

The Supreme Court’s 6-3 decision in West Virginia v. Environmental Protection Agency upends the EPA’s assertion of authority, under the Obama and Biden administrations, to squeeze fossil-fuel generation out of the nation’s electricity fuel mix.

The decision directly vacates the Obama administration’s “Clean Power Plan,” which aimed to reduce power-sector carbon dioxide (CO₂) emissions to 32 percent below 2005 levels by 2030 (80 FR 64665). By clear implication, the decision blocks any effort by the Biden EPA to mandate far more draconian power-sector emission reductions over the next eight years.

More importantly, by grounding its decision in the “major questions doctrine,” the Court puts the entire administrative state on notice that it will be skeptical of all major rulemakings that would give regulators vast new powers absent a clear authorization from Congress.

For a couple of decades I’ve been railing against the Administrative State and Executive Orders.  Both are highly unconstitutional.  This article, How Our Administrative State Undermines The Constitution (thefederalist.com) is well worth the read.

Article I of the Constitution declares, “All legislative Powers herein granted shall be vested in a Congress of the United States.” The people, in establishing the Constitution, delegated the power to make laws to Congress alone. The non-delegation doctrine, which holds that the legislature cannot delegate its legislative powers to any other hands, is a logical conclusion of the Founders’ understanding of government by consent of the governed. The people delegated legislative authority specifically to Congress. It cannot turn around and pass that authority to any other set of hands.

As the political philosopher John Locke wrote in 1690, the legislature holds authority “only to make laws, and not to make legislators.” The administrative state has no constitutional authority. At most, all administrative agencies would fall within the purview of the executive branch and be answerable to the president in his constitutional role of enforcing the nation’s laws. How, then, did this vast bureaucracy come to wield such sweeping powers to make the rules that govern us?

Over the course of the past century, Congress abandoned its legislative function and delegated its legislative powers to the unelected bureaucracy. It still passed resolutions that were officially called laws, but have generally taken the form of sweeping grants of authority empowering agencies to craft rules and fill in the details of unfinished legislation.

Here is the actual quote about the legislative branch lacking the authority to delegate their legislative authority.  The quote is from John Locke’s Second Treatise

The Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they, who have it, cannot pass it over to others…And when the people have said, We will submit to rules, and be govern’d by Laws made by such Men, and in such Forms, no Body else can say other Men shall make Laws for them; nor can the people be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorised to make Laws for them. The power of the Legislative being derived from the People by a positive voluntary Grant and Institution, can be no other, than what the positive Grant conveyed, which being only to make Laws, and not to make Legislators, the Legislative can have no power to transfer their Authority of making laws, and place it in other hands.”

Here is the exact text of Article 1 Section 1 of the US Constitution, which is titled Legislative powers; in whom vested.

All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Here is a definition of Legislative powers from the Law Dictionary

the authority of a branch of government that is charged with making and enacting laws.

Since all legislative power granted to the Federal Government is granted exclusively to the Legislative Branch and that Branch cannot delegate its legislative authority to any other entity, all edicts issued by the Administrative State are unconstitutional.

Under the US Constitution, neither the President, nor agencies of the Executive Branch, can issue executive orders that have the same legal standing as laws passed by congress, through the formal legislative process, because only the legislative branch was granted legislative power.

Since Executive Orders and edicts issued by the Administrative State violate the Constitution, they are not pursuant to the Constitution.   They are not the law of the land because they violate the Supremacy clause which states.

Article 6  Section 2. This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.

The Administrative State and Executive Orders have done tremendous harm to the freedom and prosperity of every individual who has lived in the United States in the past 100 years.  West Virginia versus the EPA is a good first small step.  So much more needs to be done. Unfortunately, I do not see the Supreme Court doing more.  We the People must do the rest.