Power is shifting back to Congress and the states; progressives need to deal with that reality

If Washington Post columnist George Will is good for anything, he is a master at distilling conservative thought as it has been cooked up in the halls of the Federalist Society where Trump-appointed Supreme Court justices no doubt received much of what passes as their legal doctrines.

And, as Will notes in his June 30 column, the overturning of Roe v. Wade might have gotten the most media play during the just-ended SCOTUS session, but many mainstream conservatives will say the “most momentous decision” came on the term’s last day when the court severely restricted the EPA’s ability to regulate carbon emissions.

Will described the decision this way:

Roberts, joined by Justices Alito, Barrett, Gorsuch, Kavanaugh and Thomas, invokes the “major questions” doctrine. It holds that when an executive agency claims a power to order changes of vast economic and political significance — e.g., the EPA’s proposed multi-billion-dollar restructuring (mandatory capital investments, higher energy prices) of a huge sector of the economy — courts should be skeptical of such claims unless legislation clearly and explicitly authorizes it. Otherwise, the agency is illegitimately lunging beyond its law enforcement function.

He goes on to defend it:

Hysteria is constant today, so hyperbole is, too — as when on June 20 the New York Times’s lead article — top of Page 1, columns five and six — warned readers to be frightened that the court might do what it in fact did Thursday. The Times said a ruling against the EPA could severely limit “the federal government’s authority” to reduce carbon dioxide from power plants. But the court’s Thursday decision did not diminish the government’s authority; it said the primary authority must be explicitly exercised by Congress, which (although progressivism often forgets this) is part of the government. The Times also warned that the EPA case could eviscerate the “federal ability” to address climate change. No, the court has required only that more responsibility be taken by Congress, which is (although progressives often regret this) a federal institution.

In 1887, Professor Woodrow Wilson of Bryn Mawr College wrote that the complexities of modern life demand government by expert administrators with “large powers and unhampered discretion.” On Thursday, the court served notice to Congress and executive agencies that modern complexities are not a sufficient reason for abandoning the Constitution’s separation of powers, which still governs those who govern us.

Whether you agree or disagree with Will’s analysis, this much is certain: Progressives have long relied on judges and federal agencies with an expansive view of the powers they have used to enforce and expand civil rights, environmental progress, workplace protections and so on. That era is coming to a close for the foreseeable future.

We now have to look to the voting booth as the chief source of progressive power. (FWIW, Texas ranks 50th in voter turnout.) That is how conservatives have seized so much power — with the assistance of gerrymandering, etc. — and that is how progressives have to start winning that power back.

SCOTUS decisions such as the one granting same-sex marriage equality are, for the time being, a thing of the past.

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