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Why Is Congress Broken? Because the Other Branches Are Doing Its Job

As the justices deliberated on a case that could affect the fight over climate change for generations, a climate activist recently took his own life in front of the Supreme Court. He died to bring attention to an issue that he believed wasn’t just an existential threat, but was also in the Supreme Court’s power to fix. Millions of climate activists share his sense of urgency and his focus on SCOTUS.

But what if winning at the Supreme Court will actually set back these activists’ cause? What if the Supreme Court is the wrong place for real change?

West Virginia v. Environmental Protection Agency is about the legality of the Clean Power Plan, an Obama administration Environmental Protection Agency policy that “set strict carbon limits for each state and encouraged the states to meet those limits by transitioning to alternative sources of energy.” The Trump administration repealed the rule. Now, the Biden administration says it will rewrite the rule, but hasn’t done so yet. In the meantime, the Supreme Court is being asked to decide whether an executive agency like the EPA has the power to enforce such wide-ranging regulations without specific legislation from Congress.

Not surprisingly, the battle lines match up with partisan ones. Conservatives and the fossil fuel industry want the regulations struck down; progressives and clean energy advocates want the president to be able to address climate change without waiting on Congress.

But the history of this policy — the shifting priorities from one administration to the next — should be enough for climate change activists to understand why losing in SCOTUS may well be the best outcome.

Climate change can’t be fixed in four-year increments. To effectively stem carbon emissions, the country needs a long-term plan that can be followed for 25, 50, even 100 years — something that can only be put in place by the U.S. Congress.


If climate advocates lose in West Virginia v. EPA, it will mean the EPA can’t put a similar Clean Power Plan back into effect without congressional authorization. But it also might be the only way to create enough political pressure to force Congress to act on climate change in the longer term. On the other hand, if the EPA wins, that outcome will guarantee that Congress stays out of the fight and that each administration will continue to promulgate new rules that can be flipped within weeks of the next Inauguration Day — a stop and start approach to an existential problem.

This isn’t just true of climate change. The Supreme Court has recently become the focus of the most contentious political debates in this country, including abortion and religious liberty, precisely because presidents and the courts have been trying to pinch hit for a Congress that is no longer in the business of legislating.

The government wasn’t designed to work like this. Think for a moment about how strange it was that senators grilled soon-to-be Justice Ketanji Jackson Brown about her sentencing decisions when it is up to Congress to decide what the minimum sentences are for any crime. Or the senators tied up in knots about the Supreme Court’s upcoming abortion decision. Whether there is a right to an abortion in the Constitution wouldn’t be nearly as momentous if Congress had already set a standard for legalized abortion in federal law. Yet, the very notion that Congress would do such a thing is so absurd that the media rarely even mentions the possibility.

And as a result, as presidents rely on their limited executive power more and more and the Supreme Court keeps getting dragged into those debates, Congress has less and less pressure to actually do the hard work (and compromising) necessary to pass legislation that would provide stable, long-term answers. Which is why advocates, whether progressives worried about climate change or conservatives focused on religious liberty, should think long and hard about whether “winning” at the Supreme Court is slowly killing their cause.


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