Separation of Powers Survived Today by a One-Vote Margin

My colleagues over at are already mulling over what today’s ruling in UARG v. EPA means for the future of American industry and energy production, but there’s a very important aspect to today’s ruling with constitutional implications.

Part of the reason why EPA’s “tailoring rule” was challenged and struck down was because it was a blatant attempt to rewrite the plain wording of a law for its own convenience, a maneuver that my colleague Marlo Lewis called “breathtakingly lawless.” Marlo has been vindicated by the court:

“An agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate,” Justice Scalia wrote. “We are not willing to stand on the dock and wave goodbye as EPA embarks on a multiyear voyage of discovery” about how it wants to regulate greenhouse gases.

It was “patently unreasonable — not to say outrageous — for EPA to insist on seizing expansive power that it admits the statute is not designed to grant,” the opinion said.  It accused the agency of “laying claim to extravagant statutory power over the national economy.”

If EPA were to get the Court’s approval for its broadest view of its powers in this field, Scalia added, that “would deal a severe blow to the Constitution’s separation of powers.”

However, Justice Scalia’s opinion in this matter was only joined in by four other justices (Roberts, Alito, Thomas, and Breyer).

Consider that for a second. Four Justices of the Supreme Court of the United States would have allowed an executive agency to rewrite a law—not a rule—in order to meet the demands of the executive. A severe blow to separation of powers, indeed.

If Scalia’s opinion had not won the day, America would have had, by court fiat, its own version of Henry VIII’s Act of Proclamations, 1539, which gave him the right to alter acts of Parliament in a manner still consistent with the aim of the original act. Part of the rationale behind the Act was that such proclamations should be “necessary and requisite” and that time could not be wasted waiting for Parliament to act.

As law professor Philip Hamburger notes in his book Is Administrative Law Unlawful?, the great philosopher David Hume said that when Parliament “gave to the King’s proclamation the same force as to a statute enacted by Parliament…[it] made by one act a total subversion of the English constitution.” The Supreme Court of the United States came within one vote today of a total subversion of the American constitution.