WASHINGTON — On the final day of a turbulent term that included rulings on what the Constitution has to say about abortion, guns and religion, the Supreme Court issued a different kind of ruling, one that s relied on the words of the Clean Air Act.
Without “clear congressional authorization,” the court said, the Environmental Protection Agency was powerless to aggressively address climate change. In years past, this could have been the start of a dialogue with Congress, which after all has the final say on the meaning of the statutes, as it can always pass new ones.
But thanks to the legislative deadlock, Congress very rarely responds these days to Supreme Court rulings interpreting its statutes — and that means the balance of power between the branches has shifted, along with the ascendancy of the justices.
The consequences have been particularly stark in Supreme Court rulings on global emergencies like climate change and the coronavirus pandemic, but the phenomenon is widespread. Congress has largely remained silent as a partisan gridlock gripped Capitol Hill, compounded by the increased use of the filibuster, which stalled nearly all major legislation in an evenly divided Senate. The result is a more dominant terrain.
It has not always been so.
“If you go back to the 1980s, every time the court did something that Congress didn’t like, it passed a law,” said Harvard law professor Richard J. Lazarus. “It was an iterative process between Congress, agencies and the courts.”
Congressional inaction in the wake of Supreme Court rulings on the laws is not particularly new, but it has taken on added significance as the Court has veered to the right and increasingly insists on granting clear authority from Congress to executive agencies. In addition to the climate change ruling, the court recently said the Centers for Disease Control and Prevention was not authorized to impose a moratorium on evictions and the Occupational Safety and Health Administration was not authorized to tell large employers to have their workers vaccinated against Covid-19 or tested frequently.
Congress is, of course, powerless to revive a law that the Supreme Court has declared unconstitutional. In such cases, the court has the final say, and only a constitutional amendment or subsequent nullification can undo its work.
Court decisions on campaign finance, including one in May, were based on the First Amendment and are examples of such constitutional decisions. The decision quashing Roe v. Wade, on the other hand, eliminated a constitutional right, allowing state and federal lawmakers to restrict or expand access to abortion.
But there are many other cases in which the court simply interprets laws enacted by Congress. Its task in these 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 overrule the decision.
“In the ‘70s and ‘In the 1980s, Congress was passing major legislation all the time,” said Notre Dame law professor Bruce Huber. “When something went wrong, there was a real colloquy between the court and Congress. The court would say, ‘Hey, that doesn’t hold up to scrutiny.’ And Congress would come back and say, “You’re right. We will fix it. And as soon as the next session, you would get a major amendment to the Clean Air Act or the Clean Water Act.
In what the authors of a 2014 study called “the golden age of waivers,” Congress reversed 86 statutory Supreme Court decisions during the eight-year period beginning in 1991. Since then, the study found that “there was a very significant drop.”
“Whatever power the court has initially, which is considerable, is enhanced if Congress is unable to impose waivers,” said William N. Eskridge Jr., a law professor at Yale who conducted the study with Matthew R. Christiansen, who is now general counsel for the Federal Energy Regulatory Commission.
Indeed, Prof Huber said, “with things as polarized as they are, the ability to change a law has shrunk to the point of disappearing”.
Major environmental laws have not been changed for decades. The Clean Air Act, which was at issue in Thursday’s climate case, was last amended in 1990.
Since Congress won’t act, Professor Lazarus said, “agencies like the EPA are relegated to working with older and older statutes to do their job dealing with modern problems.”
This can make it difficult for an administrative body to identify a clear allocation of authority to address a problem that was not fully anticipated by the drafters of the law. One approach in such circumstances is for the courts to defer to the agency when the legislative text is ambiguous.
This approach, called Chevron deference, has long been attacked by conservatives, but it survived this last Supreme Court term.
Another approach is for the courts to require a clear statement from Congress authorizing agencies to act when significant political or economic issues are at stake. This approach, called the major issues doctrine, has served to fetter the power of the EPA Thursday.
The most striking recent example of a congressional response to a Supreme Court decision dates back 13 years. This came after Ledbetter v. Goodyear Tire & Rubber Company, the 2007 ruling that Title VII of the Civil Rights Act of 1964 imposed strict time limits for filing workplace discrimination suits.
In her dissent, Justice Ruth Bader Ginsburg reminded lawmakers that on other occasions they had struck down what she called “a cramped interpretation of Title VII.”
“Once again,” she wrote, “the ball is in Congress’s court.”
Congress responded with the Lilly Ledbetter Fair Pay Act of 2009, which reversed the 2007 ruling.
On Wednesday, Judge Neil M. Gorsuch cited the Ledbetter decision in a dissent urging Congress to reverse a decision he said had struck a blow at the sovereignty of Native American tribes.
“Thanks to this court’s flagrant misuse of legislative authority,” he wrote, quoting Justice Ginsburg, “‘the ball is back in Congress’s court’.”
He didn’t stop there, as Justice Brett M. Kavanaugh’s majority opinion noted. “The dissent goes so far as to draft a statute for Congress,” Justice 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, who invited a response from Congress that the justices must have known would not be available. The ruling, which effectively gutted a key provision of the Voting Rights Act of 1965, did so indirectly, by overriding the statute’s formula for determining which states and localities were covered by the statute’s requirement according to which changes to voting procedures must be approved by federal authorities.
“Congress may write another formula based on current conditions,” 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 ruling with the clear authorization demanded by the Supreme Court.
“Insisting instead that an agency can only enact a large and meaningful climate rule by showing ‘clear congressional authorization’ at a time when the court knows that Congress is indeed dysfunctional,” the professor said. Lazarus, “the court threatens to upset the national government’s ability to protect public health and welfare.
The Supreme Court said it required Congress to speak out clearly in the interest of democratic accountability. In the climate decision, Chief Justice Roberts wrote that the elected representatives of the people should make decisions with enormous consequences.
“A decision of such magnitude and consequence rests with Congress itself, or an agency acting under clear delegation from that representative body,” he wrote.
But the net effect of this approach has been to reinforce the Supreme Court’s own authority.
“They say they are doing it for democratic purposes, but the fact is that they are increasing their own power,” Professor Lazarus said.
If democracy worked, Professor Huber said, there would be new federal legislation to deal with the threat to the planet.
“If we had a Congress that reflected at all what the median American voter wanted,” he said, “we would have relatively aggressive climate action.”