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OFCCP week in review: July 2022 | Direct Employers’ Association

OFCCP week in review: July 2022 |  Direct Employers’ Association

Thursday, June 30, 2022: SCOTUS ruled in the federal agencies by reminding them that they must identify “clear congressional authorization” when making important decisions … not so much trimming rights as trimming presidential power

On the last day of its current term, the US Supreme Court ruled that it would immediately limit the president’s power to exercise “executive fiat” to impose guidelines that Congress has not specifically delegated to him and his federal bureaucrats. SCOTUS used the case West Virginia v EPA to govern in the Environmental Protection Agency’s (EPAs) rules on emissions to clean air and to warn federal agencies more generally in the process of being careful to always anchor their policies in federal statutes where Congress clearly instructed them to act. Now is the time when the president and the heads of federal agencies could simply invoke a general right to act within their assigned responsibilities and try to “lead Congress” to get around to the president’s point of view.

SCOTUS thus ended its term by continuing to limit the power of the federal executive branch to act in violation of the rights granted by the constitution back to the state and federal territorial legislators (it was Dobbs decision to reverse Rogn (abortion) decision that returns broad powers back to the fifty state and federal territorial legislators). And now in this EPA case, SCOTUS has sent legal authorities back to the US Congress, reminding and restricting federal Executive Branch agencies not to exceed their delegated limits. The Nation looks in real time at the balance of the three branches of the federal government, the founders of the country envisioned not allowing any of the three major branches of the federal government to become too powerful in relation to the other two branches. Spokesmen for a powerful centralized federal government were shocked by the decision in West Virginia, while spokesmen for a much smaller federal government charged only with health, security, welfare and national defense missions were elated over what they perceived as a rebalancing of power away. from a furious executive branch, both Democrats and Republicans have driven forward.

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SCOTUS seizes “Major Question Doctrine” to “step on the brakes” on the president’s ongoing exercise of power

Here is the background: Section 111 (d) of the Clean Air Act (codified in federal law as 42 USC §7411 (d) and used interchangeably with “Section 111 (d)” in the SCOTUS Decision) gave the EPA the authority to prepare emission ceilings based on a generational approach the agency adopted in its Clean Power Plan (CPP) rule (issued by the Obama administration in 2015). In the majority’s view, Chief Roberts wrote that according to the “major question doctrine, given both the principles of power distribution and a practical understanding of legislative intent, the agency must point to” clear congressional authorization “for the authority it claims to do when making” decisions of enormous economic and political significance ‘.

As we have previously written (see, Thursday, February 10, 2022: Eight states bring two suits seeking to impose $ 15 / hour minimum wage on federal contractors and subcontractors), “Major Questions Doctrine” is an approach to statutory interpretation that excludes the executive branch from issuing rules of deep economic and political significance where Congress did not explicitly assign this power to the President.

Roberts went on to state that the EPA’s efforts to regulate greenhouse gases by making industry-wide changes broke with the Major Questions Doctrine. Section 7411 of the Clean Air Act was “designed as a gap filler” and has rarely been used, Roberts noted, adding that Congress had previously rejected attempts to adopt the type of program that the EPA wanted to implement with its CPP rule. As such, there was “little reason” to believe that Congress gave the EPA the authority, under section 7411, to issue its CPP rule, thereby exercising “unique power over American industry.” Although the provisions of the CPP rule may be prudent policy, “[a] “Decisions of such magnitude and consequence rest on the Congress itself, or an agency acting in accordance with a clear delegation from that representative body,” Roberts wrote.

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Therefore, the U.S. Court of Appeals for the District of Columbia Circuit erred in interpreting the Clean Air Act to give the EPA expansive power over carbon emissions, the court concluded. The Biden administration had planned to issue a new rule on carbon emissions from power plants, instead of reintroducing the Clean Power Plan rule, which the Trump administration repealed and replaced.

Justice Gorsuch wrote a contemporary opinion, along with Justice Alito, in which he elaborated on what he saw as the benefits of the “Major Questions Doctrine.”

The decision was another 6-3 decision, with judge Kagan writing a dissenting opinion together with judges Breyer and Sotomayor. Kagan strongly disagreed with the majority’s conclusion that the EPA did not act under the authority she claimed Congress had actually conveyed to the EPA in section 111 (aka 42 USC §7411) of the Clean Air Act. Kagan rather concluded that Congress had largely authorized the EPA in Section 111 to select the “best emission reduction system” for power plants. Here, the parties did not dispute that “generational change” was the best system for achieving the Congress’ generally stated goal of reducing emissions. (“Generational change” is the abbreviation to describe the shift of power production from one power source (perhaps from fossil fuels) to another power source (perhaps to solar energy sources). The majority’s reasoning “rests on one statement alone: ​​that generation an agreement too large for Congress to have authorized it “in section 7411,” Kagan wrote. “according to Kagan.

In a statement condemning the decision“President Biden stated that his administration” will continue to use law enforcement, including the EPA’s law enforcement agencies, to keep the air clean, protect public health and tackle the climate crisis. We will work with states and cities to enact and uphold laws that protect their citizens, “and that” will continue to push for further congressional action. “

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