Congressional Republican leaders are calling on Biden Administration agencies to obey a recent Supreme Court ruling that clarified the limitations of certain agency actions and insists that lawmaking is done by elected officials, not unaccountable bureaucrats. In letters to agencies within their jurisdiction, the leaders request the “clear congressional authorization” for upcoming agency rulemakings, justifications for existing rules, and cost estimates for each. 

In West Virginia v. EPA, the Supreme Court struck down an EPA rule noting that it lacked “clear congressional authorization,” given that “the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives.” In the United States, it is “the peculiar province of the legislature to prescribe general rules for the government of society.” 

The letters signed by Ways and Means Committee Republican Leader Rep. Kevin Brady (R-TX), Oversight and Government Reform Committee Republican Leader Rep. James Comer (R-KY), and Budget Committee Republican Leader Rep. Jason Smith (R-MO) were sent to:

• Department of Treasury Secretary Janet Yellen (Letter PDF)
• Department of Commerce Secretary Gina Raimondo (Letter PDF)
• Department of Labor Secretary Martin J. Walsh (Letter PDF)
• Social Security Administration Acting Commissioner Kilolo Kijakazi (Letter PDF)
• United States Trade Representative Katherine Tai (Letter PDF)

Energy and Commerce Committee Republican Leader Cathy McMorris Rodgers (R-WA) joined in their letter to Health and Human Services Secretary Xavier Becerra (Letter PDF).

For an excerpt of these letters, see below:

            We write to bring to your attention West Virginia v. EPA, a recent Supreme Court decision that clarified the limitations of certain agency action.[1] Although Article I, Section 1 of the United States Constitution vests “all legislative powers” in Congress,[2] the Biden Administration has largely relied on executive action to advance its radical agenda. For example, in his first year, President Biden issued more executive orders[3] and approved more major rules[4]than any recent president. Such reliance on the administrative state undermines our system of government. Our founders provided Congress with legislative authority to ensure lawmaking is done by elected officials, not unaccountable bureaucrats. Given this administration’s track record, we are compelled to underscore the implications of West Virginia v. EPA and to remind you of the limitations on your authority. 

             In West Virginia v. EPA, the Court invoked the “major questions doctrine” to reject an attempt by the EPA to exceed its statutory authority.[5] As the Court explained, “[p]recedent teaches that there are ‘extraordinary cases’ in which the ‘history and breadth of the authority that [the agency] has asserted,’ and the ‘economic and political significance’ of that assertion, provide a ‘reason to hesitate before concluding that Congress’ meant to confer such authority.”[6] Under this doctrine, an agency must point to “clear congressional authorization for the authority it claims.”[7] However, the EPA could not point to such authorization. Rather, the EPA “discover[ed] an unheralded power representing a transformative expansion of its regulatory authority in the vague language of a long-extant, but rarely used, statute designed as a gap filler.”[8] Notably, such discovery “allowed [EPA] to adopt a regulatory program that Congress had conspicuously declined to enact itself.”[9] As a result, the Court rejected the EPA’s attempt to so plainly exceed its statutory authority. 

             Unfortunately, EPA’s attempt to invent new authorities is not unusual for the Biden Administration. Recently, the Court struck down the Centers for Disease Control and Prevention’s attempt to impose an eviction moratorium[10] and the Occupational Safety and Health Administration’s attempt to impose a vaccine or testing mandate.[11] Thankfully, in West Virginia v. EPA, the Court made clear that such reliance on the administrative state will no longer be allowed. To be clear, “the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives.”[12] In the United States, it is “the peculiar province of the legislature to prescribe general rules for the government of society.”[13]

             As the committees of jurisdiction overseeing your agency, we assure you we will exercise our robust investigative and legislative powers to not only forcefully reassert our Article I responsibilities, but to ensure the Biden Administration does not continue to exceed Congressional authorizations. 

The leaders then ask for the agency to provide by October 11, 2022, the “clear congressional authorization” for upcoming agency rulemakings, justifications for existing rules, and cost estimates for each.

[1] West Virginia v. Environmental Protection Agency, 597 U.S. __ (2022).

[2] U.S. Const.  art. I, § 1.

[3] Federal Register, Executive Orders (accessed Aug. 2022), available at https://www.federalregister.gov/presidential-documents/executive-orders

[4] Deep Dive, How Biden Has Made Policy With Short-Term, Costly Rules: Charts, Bloomberg Law (May 2022), available athttps://news.bloomberglaw.com/environment-and-energy/how-biden-has-made-policy-with-short-term-costly-rules-charts

[5] West Virginia, 597 U.S. at 5-6.

[6] Id. at 4 (citing FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 129, 159-160). 

[7] West Virginia, 597 at 4. 

[8] Id. at 5. 

[9] Id. at 5. 

[10] Alabama Assn. of Relators v. Department of Health and Human Servs, 594 U.S. __ (2021).

[11] National Federation of Independent Business v. Occupational Safety and Health Administration, 595 U.S. __ (2022).

[12] West Virginia, 597 at 56 (Gorsuch, J., concurring). 

[13] Fletcher v. Peck, 6 Cranch 87, 136 (1810).