WASHINGTON – On the last day of a turbulent term of rulings on what the Constitution has to say about abortion, guns and religion, the Supreme Court has made a different kind of decision, one based on the words of the Clean Air Act.
Without “clear approval from Congress,” the court said, the Environmental Protection Agency was unable to aggressively address climate change. In recent years, that may have been the start of a dialogue with Congress, which after all has the final say on what statutes mean, because it can always pass new ones.
But today, thanks to the legislative deadlock, Congress very rarely responds to Supreme Court decisions interpreting the statutes — meaning the balance of power between branches has shifted, with judges emerging.
The fallout has been particularly severe in Supreme Court rulings on global emergencies such as climate change and the coronavirus pandemic, but the phenomenon is widespread. Congress has largely fallen silent as a partisan stalemate grips Capitol Hill, exacerbated by the increased use of the filibuster, which has blocked nearly all major legislation in an evenly divided Senate. The result is a more dominant court.
It wasn’t always like that.
“If you go back to the ’80s, every time the court did something that Congress didn’t like, they passed a law,” said Richard J. Lazarus, a law professor at Harvard. “It was an iterative process between Congress, the agencies and the courts.”
Congressional inaction after Supreme Court rulings on statutes isn’t particularly new, but it has gained added importance as the court has turned to the right and increasingly pushes for clear conferral of congressional authority on executive agencies. In addition to its ruling on climate change, the court recently ruled that the Centers for Disease Control and Prevention had no jurisdiction to impose a moratorium on evictions and that the Occupational Safety and Health Administration had no jurisdiction to tell major employers to vaccinate their employees. are against Covid-19 or are regularly tested.
Congress, of course, is powerless to revive a law that the Supreme Court has ruled unconstitutional. In such cases, the judge has the last word and only a constitutional amendment or subsequent overruling can undo its work.
The court’s decisions on campaign finance, including one in May, were based on the First Amendment and are examples of such constitutional rulings. In contrast, the decision quashing Roe v. Wade eliminated a constitutional right, allowing state and federal lawmakers to limit or expand access to abortion.
But there are many other cases where the court only interprets the statutes promulgated by Congress. Its job in those cases is to determine what a law means, not to test its constitutionality. If Congress disagrees with the court’s interpretation, it is free to override the decision.
“In the †70s and †In the 1980s, Congress was constantly passing important legislation,” said Bruce Huber, a law professor at Notre Dame. “If anything was wrong, there was a real consultation between the court and Congress. The court would say, “Hey, this doesn’t stand up to scrutiny.” And Congress would come back and say, ‘You’re right. We’ll fix it.’ And the next session you get a major change to the Clean Air Act or the Clean Water Act.”
In what the authors of a 2014 study called “the golden age of overrides,” Congress ignored 86 Supreme Court legal decisions in the eight-year period beginning in 1991. Since then, the study found, there has been a very significant decrease. †
“Whatever power the court has to begin with, which is significant, it will be strengthened if Congress is unable to impose revisions,” said William N. Eskridge Jr., a law professor at Yale who research together with Matthew R. Christiansen. is now a general counsel to the Federal Energy Regulatory Commission.
Indeed, Professor Huber said, “With things as polarized as they are, the ability to change a statute has dwindled to the vanishing point.”
Major environmental laws have not changed in decades. The Clean Air Act, discussed in Thursday’s climate case, was last amended in 1990.
Since Congress won’t act, Professor Lazarus said, “agencies like EPA have been relegated to working with increasingly old statutes to do their job in addressing modern problems.”
That can make it difficult for an administrative agency to identify a clear mandate to address an issue that was not fully envisioned by the drafters of the statute. One approach in such circumstances is for courts to delay agency when the legal text is ambiguous.
That approach, called Chevron deference, has long been attacked by conservatives, but has survived this past Supreme Court term.
Another approach is for courts to require a clear statement from Congress authorizing agencies to act where important political or economic issues are at play. That approach, called the doctrine of the big questions, served Thursday to impede the power of the EPA.
The most prominent recent example of a congressional response to a Supreme Court ruling is 13 years old. It came after Ledbetter v. Goodyear Tire & Rubber Company, the 2007 ruling that said Title VII of the Civil Rights Act of 1964 imposed strict time limits for bringing lawsuits against workplace discrimination.
In her dissenting opinion, Judge Ruth Bader Ginsburg reminded lawmakers that on previous occasions they had ignored what she called “a narrow interpretation of Title VII.”
“Once again,” she wrote, “the ball is in Congress’ court.”
Congress responded with the 2009 Lilly Ledbetter Fair Pay Act, which overturned the 2007 decision.
On Wednesday, Judge Neil M. Gorsuch cited the Ledbetter ruling in a dissent and urged Congress to override a decision he said dealt a blow to the sovereignty of Native American tribes.
“Thanks to this court’s blatant misappropriation of legislature,” he wrote, quoting Judge Ginsburg, “the ball is back in Congress’ court.”
He didn’t stop there, as Judge Brett M. Kavanaugh’s majority opinion noted. “The disagreement has gone as far as drafting a draft statute for Congress,” Judge Kavanaugh wrote.
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But if recent practices are any guide, congressional action is unlikely.
Consider the 2013 Supreme Court decision in Shelby County v. Holder, which provoked a congressional response that the judges should know would not come. The decision, which effectively invalidated a key provision of the Voting Rights Act of 1965, did so indirectly, removing the law’s formula for determining which states and places were subject to the law requiring changes to voting procedures to be approved by the federal authorities.
“Congress may formulate a different formula based on current circumstances,” Chief Justice John G. Roberts Jr. wrote. for the majority. Congress has not adopted a new formula.
Nor is Congress likely to respond to the climate change decision with the clear approval the Supreme Court has demanded.
“By insisting instead that an agency can enact an important and significant climate change regulation only by showing ‘clear congressional authorization’ at a time when the court knows Congress is, in fact, dysfunctional,” Professor Lazarus said, court to overturn the national government statement its ability to ensure public health and well-being.”
The Supreme Court has said it requires Congress to speak clearly in the interests of democratic accountability. In the climate decision, Chief Justice Roberts wrote that elected representatives must make decisions that have enormous consequences.
“A decision of such magnitude and consequence rests with Congress itself, or with any agency acting on the clear delegation of 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 democratic purposes, but the fact is they are increasing their own power,” Professor Lazarus said.
If democracy worked, Professor Huber said, there would be new federal legislation to address the threat to the planet.
“If we had a Congress that reflected at all what the average American voter wanted,” he said, “we’d have relatively aggressive climate action.”