In the wake of the Supreme Court’s West Virginia v. EPA decision in June, prominent commentators complained that Congress is too broken to solve major problems, and thus, the executive branch must take action—even if it’s unlawful. The passage of the Respect for Marriage Act is an important reminder that Congress can still play its constitutionally assigned role of legislating in response to Supreme Court decisions.
West Virginia v. EPA held that the Environmental Protection Agency (EPA) lacked the statutory authority to enact the Clean Power Plan, a policy aimed at reducing U.S. emissions of global warming gasses. Several opinion pieces following the decision took no apparent issue with its statutory analysis but claimed that the Supreme Court nonetheless erred because Congress is no longer capable of taking on complex problems like climate change.
Memorably, labor lawyer Thomas Geoghegan argued for a “mild species of dictatorship” to address global warming. Richard Lazarus, a Harvard Law School professor, avoided explicitly calling for dictatorship but decried “the obvious reality that the current Congress is incapable” of enacting major legislation when it comes to environmental issues.
The Constitution vests legislative power solely in Congress, and for good reason. The executive branch may issue rules that fill in minor gaps inevitably left in legislation, but this minor role should not be interpreted to delegate legislative power to the executive branch.
Unfortunately, all too often, Congress has ducked its fundamental responsibilities by passing bills with open-ended grants of authority that unconstitutionally delegate legislative power to the executive branch. This is rarely, if ever, because Congress can’t craft more detailed laws, but rather because it wants to avoid the difficult work and attendant political consequences of making hard decisions. In contrast, executive agencies have also been all too happy to discover unheralded powers granted to them in long-extant statutes in response to new problems. The related nondelegation and major questions doctrines exist to ensure that both legislative and executive branches stay in their constitutionally assigned lanes.
Geoghegan, Lazarus, and other critics of the nondelegation and major questions doctrines claim that judicial enforcement of these doctrines is a non-starter given what they perceive as Congress’ fecklessness. Complex social problems can only be solved, they say, by the executive branch taking bold (if legally questionable) action.
The recent passage of the Respect for Marriage Act indicates that Congress remains capable of acting in response to Supreme Court decisions on controversial issues. The catalyst for this bill was a passage in Justice Clarence Thomas’ Dobbs v. Jackson’s Women Health Organizationconcurrence, suggesting that some of the Court’s other substantive due process precedents should also be re-examined—including the Obergefell opinion that upheld a constitutional right to same-sex marriage. Although Dobbs’ threat to Obergefell may well be overstated, the Respect for Marriage Act is an important indicator that Congress is able to legislate in response to Supreme Court rulings.
Same-sex marriage is politically popular, with Gallup finding that support for it rests at 71 percent in the United States. One lesson here may be that Congress will act to counter a Supreme Court ruling when such legislation is broadly popular—but not when it isn’t. The failure of Clean Power Plan-like legislation to get through Congress may not reflect an institutional failure by Congress but instead a failure of persuasion by environmental advocates.
The Respect for Marriage Act also illustrates the merits of addressing social issues by a bipartisan, multimember Congress instead of executive agencies controlled by presidential appointees of one party. Rule making by executive appointees from one party tends to reflect an all-or-nothing approach to a given issue. When the Equal Employment Opportunity Commission (EEOC) reinterpreted Title VII to cover discrimination based on sexual orientation and gender identity, for example, it took a more absolutist approach than had earlier bills proposed in Congress to address the same issue.
A bipartisan legislature is more likely to try to accommodate concerns from all perspectives. The Respect for Marriage Act, for example, primarily codifies the right to same-sex marriage, a cause more commonly associated with liberals and Democrats. But it also contains provisions intended to preserve religious liberty, a view more typically associated with conservatives and Republicans.
Infantilizing Congress has had pernicious effects on our constitutional system of powers. Whatever one’s opinion of the merits of the Respect for Marriage Act, it should be hailed as a positive sign that Congress can reclaim its rightful place in our system of constitutionally limited and enumerated powers.
This op-ed was originally published at Reason on November 30, 2022.