For the first time in over 80 years, a majority of the Supreme Court justices want to enforce the Constitution’s requirement that the “lawmakers” in Congress vote on the regulatory laws. On Feb. 28, the justices will get their chance when the Court hears arguments in West Virginia v. Environmental Protection Agency. There’s a new way to comply with the Constitution and, having sworn to uphold it, legislators should not wait for a command from the Court.
Heeding the Declaration of Independence’s call for government based on “the consent of the governed,” the Constitution assigned exclusively to Congress the power to make rules of private conduct so that legislators would bear responsibility in future elections. However, as later became evident, we need too many laws for Congress to make them all. So, in 1825, the Court stated that Congress could leave making minor rules to others but must provide them with guidance and itself make the critical rules.
In 1935, conservative and liberal justices unanimously struck down statutory provisions that delegated making important rules with virtually no guidance. Yet, the Court has since upheld statutes that authorize agencies to promulgate rules on important topics without meaningful guidance because the justices lacked judicially manageable tests of too-important rules and too-little guidance.
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