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The end of whack-a-mole: Will the major question doctrine save democracy?

Hopefully, we are on the road to reigning in the unbridled overreach of administrative agencies.

It is a truism that the Supreme Court issues its most important decisions at the end of the term. So what does it say when one of the last two decisions released this term was not about abortion rights or gun control, but about an administrative agency that exceeded its authority?

To me, it says it’s about time. Hopefully, we are on the road to reigning in the unbridled overreach of administrative agencies.

An administrative agency such as the Environmental Protection Agency has only the authority given it by statute. Congress, of course, creates statutes. Congress must intend to confer the authority it gives to an agency.

The courts have traditionally left it up to the agencies to decide how much authority they have been given by Congress. Only when the agency has obviously pushed too far has the Supreme Court stepped in. For example, the court slapped down the U.S. Food and Drug Administration when it claimed it had the power to regulate and even ban tobacco products. The court told the Centers for Disease Control and Prevention that it had not been given the authority to institute a nationwide eviction moratorium. The court found the EPA exceeded its power when it tried to include greenhouse gases under the term “air pollutant” and impose sweeping rules on hotels and office buildings.

In a similar vein, the court decided that the attorney general did not have the power to rescind the license of a physician who legally prescribed a controlled substance for assisted suicide and that the Occupational Safety and Health Administration could not mandate that 84 million Americans either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense.

In all the cases, Congress had conspicuously and repeatedly declined to give the agencies those extraordinary powers. The administrative agencies just took them. The Supreme Court has been playing whack-a-mole with agency overreach for a long time.

In its latest case, the EPA had asserted that it alone had the power to decide caps for carbon dioxide emissions. In deciding the EPA had not been given that power, the court invoked the major questions doctrine. Going forward, agencies must be able to point to clear congressional authorization when they claim the power to make decisions of vast economic and political significance. The big issues should be decided by the elected representatives and senators, not by hired agency personnel.

How big is the impact of this decision? Huge. Federal departments, agencies and commissions typically issue 27 rules for every law passed by Congress. If they are not kept in check, administrative agencies could soon be running the country. Some people say they already are and refer to them as the deep state.

For baby boomers and their elders, this type of ruling could not be more timely. The U.S. Department of Health and Human Services is an administrative agency. It oversees almost one-fourth of all federal government expenditures. Under its umbrella are the Centers for Medicare and Medicaid Services, the CDC and the FDA. One of the cases referred to in the new EPA decision was a case involving the HHS. Hopefully, this new decision will cause the agency to hesitate before it issues any sweeping new rules, and to review its existing rules to see if it exceeded its authority.

The last thing we need is a rogue agency imposing its political agenda upon us through overreaching rules. It’s past the time to rein them in.

Virginia Hammerle is in her fourth decade of practicing law. She is board-certified in civil trial law by the Texas Board of Legal Specialization and an accredited estate planner. Contact her at legaltalktexas@hammerle.com or visit www.hammerle.com. This column does not constitute legal advice.

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