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West Virginia’s AG Takes On the Administrative State

'I think that there's still far too many federal agencies, and that we should be looking to slim down the powers of the federal government... '

(Ben Weingarten, RealClear WireMontani Semper Liberi, Latin for “Mountaineers Are Always Free,” is West Virginia’s motto.

To that motto, the Mountain State’s attorney general would like to add a coda: “Where woke policies and federal overreach go to die.”

This is the stated aim of Patrick Morrisey, West Virginia’s thrice-elected Republican chief legal officer, soon to be entering his 10th year in office, as he revealed in a recent interview.

Morrisey has engaged in sustained litigation against the federal government, while jousting with the executive branch particularly over its embrace under the Obama and Biden administrations of ESG —Environmental, Social, and Governance— principles, and their efforts to codify and impose them by administrative fiat.

In Morrisey’s view, efforts to institutionalize ESG—“the weapon of choice for the woke left to destroy the free market”—not only punish West Virginians but undermine America’s national interest and constitutional order.

Morrisey’s rise to ESG and administrative state scourge began, in a classic twist of political fate, with a loss 22 years ago in a four-way Republican primary for the U.S. House in New Jersey (a race in which this reporter’s father also competed).

But it reached an apex of sorts in June when, after years of legal wrangling, Morrisey scored a victory at the Supreme Court in the case of West Virginia v. EPA.

At issue was whether the Environmental Protection Agency could, as West Virginia framed it in its brief, issue rules “capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy – with no limits on what the agency can require so long as it considers cost, non-air impacts, and energy requirements.”

West Virginia argued it could not. While the specific subject of the case was EPA efforts to curb emissions, the case raised more fundamental questions about executive authority.

To that end, the Supreme Court ruled in West Virginia’s favor on “major questions” grounds. Under the major questions doctrine, as the high court described it, should an agency pursue a policy of substantial “economic and political significance,” it “must point to ‘clear congressional authorization’ for the authority it claims.”

As Chief Justice John Roberts concluded in his majority ruling: “A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”

The implications of the ruling therefore went far beyond the walls of the EPA. In theory, a whole raft of significant regulatory policies across the executive branch could be challenged under the major questions doctrine.

The durability of that theory is likely to be put to the test amid a mounting backlash against ESG-related regulatory policies that executive agencies have been promulgating under the Biden administration—part-and-parcel of a broader revolt against ESG in government and corporate America being led by the states and poised to be joined by the incoming Republican House.

West Virginia and like-minded states argue that the Biden administration is once again running afoul of the major questions doctrine with regulatory efforts from agencies even further unmoored from ESG matters like climate, from the SEC to the Commodity Futures Trading Commission.

What follows are excerpts from our interview, conducted with Attorney General Morrisey by telephone on Dec. 14, lightly edited for clarity.

Ben Weingarten: What’s your view as to the proper role of the administrative state, if any, in our republic?

AG Patrick Morrisey: The administrative state needs to take clear direction from Congress in terms of implementing the many laws that are passed. My concern about the administrative state stems from its incredible growth and the fact that the bureaucracy has received so much deference over a prolonged period of time. The bureaucracy has been able to grow organically on its own, even without express authorization of Congress. And that’s been disturbing to me because where the administrative state exists, it has an impact on states’ ability to function and the freedom of the individuals to act and to innovate. The larger it becomes, then you see freedom contracting within the states.

I’m a believer that the administrative state has grown way too big over a long period of time. And we need to right-size that pretty aggressively because the administrative state is not accountable to the people. We have to consistently look and ask the tough questions to make sure that the legislative branch is making the major decisions of the day because when that goes away, then you lose control of your government. You no longer have a government by the people and for the people. You have a government of people, bureaucrats, who don’t have any accountability and can make decisions that are wildly at variance with the laws. I think that’s a lot of what we’ve seen in recent decades.

BW: Administrative state proponents will say – particularly given how many different areas regulators oversee and bureaucrats interact with today – that we’re dealing with more complex and highly technical or scientific issues in more areas than ever before. And so it really ought to be the purview of experts who specialize in those areas to make decisions about how laws ought to be interpreted and applied, not the legislators themselves who don’t have that expertise. What’s your counter to that argument?

PM: The fact is there most certainly should be expertise that’s housed within our federal agencies. But it should never be an excuse to take constitutional shortcuts. And that’s what these bureaucrats want. One of the arguments that we used to hear in the context of West Virginia v. EPA, they said, “Well, climate change is a really important issue. And if the Congress doesn’t act, we need the regulatory body to step in.” But that’s wrongheaded on every single level because the executive agencies should only act when they have explicit authority from Congress. And I think that there are a lot of people that want to take those shortcuts, and they want to use the administrative bodies to advance their pet initiative of the week. But we continually lose freedom and we lose our way of life if we allow these bodies to keep seizing power when it doesn’t belong to them. And once again, there’s an effect when you seize power on the federal level, that obviously the states’ ability to function starts to contract. Individual communities and localities lose the ability to solve problems. And there’s an intrinsic value in local communities solving as many of the problems that they can as possible, as opposed to passing everything off to the federal government and the administrative state.

Most certainly there are going to be issues that raise interstate commerce concerns or are international in scope, but the vast majority of areas that the federal government has been walking into in recent years could probably be resolved at the local and the state level. And that’s always superior, so there’s political accountability with citizens.

BW: What, in your view, were the most overlooked or underappreciated aspects of West Virginia v. EPA?

PM: I think that the biggest takeaway is that the major questions doctrine and West Virginia v. EPA are going to apply well beyond the environmental arena. Major questions is a concept that is applicable to every single federal agency. So we expect that in the upcoming years we’re going to see the lower courts interpret West Virginia v. EPA and build out the case law all across the country. We’re going to see the executive branches have to come to grips with what West Virginia v. EPA and the major questions means to them. You’re going to start to see congressional oversight over federal agencies asking, “What are you doing to comply with West Virginia v. EPA?” And I think that’s all good and proper because once again this was a sea change. This sends a very strong message that if you have a major question of the day, something of great political or economic significance, Congress makes those decisions, not unelected bureaucrats. It’s sending a message that the days in the past where the unelected bureaucrats could reach down, seize authority from an ambiguous phrase, reorder the nation’s power grid if you will, that that’s not going to happen, at least not with this Court. That’s a net good for our country, for freedom, our constitution, and our separation of powers both in terms of the federal level and the cooperative federalism regime we have in place between the feds and the states.

BW: What’s at stake with respect to the SEC’s proposed climate-related risk disclosure rule, and what do you make of the delay in its issuance of a final rule?

PM: ESG is the weapon of choice for the woke left to destroy the free market in our country. So I would argue there’s a significant amount at stake when you have the federal government trying to transform the core mission of virtually every federal agency into an environmental regulator, a diversity regulator, a regulator in walks of life that those agencies have nothing to do with. That’s the opposite of what you want in your government. You want a government that is mission-oriented and they’re working to fulfill the charge that Congress set out for them.

Congress never set forth any authorities for the SEC to act in the ESG space. The FDIC doesn’t have authorities to act in ESG space. CFTC doesn’t have the authority to act in that space. So there will be litigation brought, and these SEC rules will come down.

BW: Do you foresee, to the extent one or several of these rules fail, there being a tipping point where these agencies realize that by proposing policies that will ultimately lose in court, that they’ll be doing greater damage to the administrative state itself than it’s worth – that is, that future losses could serve as a deterrent to overreach?

PM: I’m certainly hopeful that the federal agencies will start to learn their lesson but it’s clear to me that we still have a long way to go. When you win West Virginia v. EPA at the end of June, and a week later our president comes out and suggests that since he can’t get done his climate change agenda through Congress, he’s going to resort to regulatory fiat, you shake your head and say, “Did you not just see what happened?” And so it’s going to take time and it’s also going to take the right leadership within the executive branch and folks who want to be disciplined about protecting the integrity of the constitution, the separation of powers and our freedoms into the future even though it may be easier for them to take that shortcut in order to get a quick policy victory.

So I think that the major questions doctrine is going to advance, but the speed at which it advances may be dependent upon who our next president is because that next president is going to set up a lot of the executive rules as to when major questions apply to the federal agencies. And I’m personally excited about that prospect and looking forward to working with the next president and the next set of government officials who are actually going to care about principles such as reining in the administrative state, ensuring that there’s a balance, and that there’s a maintenance of cooperative federalism between the feds and the states.

BW: You’ve pushed back against a variety of agencies, including the CFPB of late. Are there other aspects of the administrative state, be they either specific policies or powers that have been usurped, that you see as particularly vulnerable to challenge, and that you might be pursuing via litigation going forward over the next couple of years?

PM: We’re going to continually look for different ways to whittle away deference to the administrative state and we are constantly looking at the right type of cases to bring so that we can continually right-size the administrative state. In West Virginia there’s a lot of concern about the power of the federal government and the administrative state, and obviously there’s been a lot of concern about the EPA because of what the EPA has done to our state over a prolonged period of time. But of course, there’s concern about a lot of different federal agencies. You don’t have to go any further than the vaccine mandates to point to examples of how people were looking and saying, “How on earth did the federal government have this kind of authority?” And the answer is it didn’t have that kind of authority. So we’re going to be looking constantly at different tools through the litigation process to right-size the administrative state and make sure that it’s complying with its constitutional direction that Congress provides to it.

But look, I would say that there’s a lot more that needs to be done as well. Congress needs to accept the responsibility that’s consistent with its constitutional obligations. And remember, Congress has been complicit in this process for many years because it’s sometimes easier to write an ambiguous phrase or bury something as a product of a political deal as opposed to having greater clarity because greater clarity might make the lawmaking process a little bit more difficult. And so sometimes people take the easy way out. They don’t resolve political dilemmas at the legislative level. They ship it up to the bureaucrats to deal with. And I’m hopeful that this sends a message to Congress: Congress, you have to do your job and provide the clarity and not just think that the administrative state is going to solve all your problems.

BW: What would your recommendation be for the Republican House in the way of working toward reining in the administrative state in the next two years?

PM: The House of Representatives should put together a list of every single federal agency and independent agency, and they should go through that, and have oversight hearings as to the nature of the rulemakings that are underway, and analyze the source of the authority that that agency is using. And they should raise major questions issues to the extent they’re applicable. This has to be an exercise that applies across the board to all federal agencies. So, that means the House Oversight and Reform Committee needs to do a lot of hearings. The Energy and Commerce Committee needs to do the hearings within its jurisdiction. The Ways and Means Committee, obviously Appropriations Committee, Financial Services Committee, across the board. This should be a broad part of the theme that Republicans have because this is actually what being a Republican is all about: Reducing the size and scope of the federal government; bringing decision-making powers back to representatives who are accountable to voters. Obviously, government is best that functions at the most local level where individuals are going to be able to make informed decisions, and they can interact with the people that are running for office.

BW: How should Republicans think about the use of administrative authority when they are in power – and considering the intransigence that they’ll be likely to face, as we saw under President Trump?

PM: I think that there’s still far too many federal agencies, and that we should be looking to slim down the powers of the federal government. I don’t think you have to look any further than the CFPB, which was an unconstitutional creature that was created, and people are beginning to look at that more closely about the unlawful funding mechanisms that are in place. We need to constantly question the role of government, and we shouldn’t be afraid to get rid of functions that don’t apply to the federal government, or are more proper for states or for the people. And I think we have to continue that. I wouldn’t give that up.

At the same time, I would also argue that constitutional conservatives should stand for limited government, and that means smaller government, but also agencies and policies that run like a Swiss clock. You should have as small a government as possible. However, when you have it, you have to make sure it works effectively. And I would have both of those visions in mind when I go about taking on the administrative state.

BW: Attorney General Morrisey, you’ve been very generous with your time, and I appreciate your thoughtful responses.

PM: The last point I would make is this: When you think of West Virginia, I want you to think West Virginia is going to be the state where woke policies and federal overreach go to die because this is a really big issue with our people. “Mountaineers Are Always Free.” That’s our motto, and we recognize the relationship between an overreaching federal government and loss of freedoms to our people. We felt it with the EPA. We’re seeing it with the ESG movement, which we know is a death sentence for West Virginia, and we’re going to stand up and fight. And quite frankly, we’re going to keep beating these people every single time. We’re correct on the law. The Supreme Court, I think, is supportive of a lot of the initiatives that we’ve been pursuing, and we’re not going to stop.

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