7.20.22 – Washington Times

“Reining in federal agency mission creep”
West Virginia v. EPA's impact on gender-neutral bathrooms, CRT edicts and more
By Sheri Few - - Tuesday, July 19, 2022

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The Supreme Court’s decision to overturn Roe v. Wade has dominated the media’s attention, even while there was another opinion released at the end of the court’s term with far-reaching implications.

This other opinion has received less attention in the wake of the Dobbs opinion, but the decision, handed down June 30, 2022, is portrayed by the media as having curtailed President Biden’s ability to control “climate change.” 

What may have been overlooked by most mainstream media is an incredible precedent that should now be applied to all over-regulators. It is a sound constitutional limit on all federal agencies to stay within their congressionally defined powers.

In West Virginia et al. v. Environmental Protection Agency et al., the court held there is “a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.” 

The Supreme Courtfound that “capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible solution. … But it is not plausible that Congress gave Environmental Protection Agency (EPA) the authority to adopt on its own such a regulatory scheme … [and a] decision of such magnitude and consequence rests with Congress itself …”

In concurring with the court’s decision, Justice Neil M. Gorsuch writes, “The framers believed that the power to make new laws regulating private conduct was a grave one that could, if not properly checked, pose a serious threat to individual liberty.”

Justice Gorsuch also points out that when an agency attempts to work around the legislative process, it may be a sign of its attempt “to resolve for itself a question of great political significance.” Most importantly, he writes, “When an agency claims the power to regulate vast-swaths of American life, it not only risks intruding on Congress’s power, it also risks intruding on power reserved to the States.”

This precedent forces the question, “What about other federal agencies?” Take for example, the United States Department of Agriculture and its recent edict that America’s schools must have gender-neutral bathrooms to receive federal free and reduced lunch funding. Doesn’t this seem to be akin to the EPA’s attempt “to resolve for itself a question of great political significance”? It certainly smacks of “intruding on power reserved to the States.”

Consider also the U.S. Department of Education and its requirement for schools that receive federal COVID-19 relief funds to advance equity and inclusion and social-emotional learning. Equity and inclusion are key terms used to describe culturally relevant teaching, aka critical theories (critical race theory, critical feminist theory and critical queer theory). CRT violates the Civil Rights Act and the Equal Protection Clause of the U.S. Constitution.

Moreover, it now appears with the West Virginia v. EPA decision, the U.S. Department of Education has abused its authority to distribute these funds like the DOA by attempting “to resolve for itself a question of great political significance,” and “intruding on power reserved to the States.”

The Department of Education routinely uses federal money to bribe states to implement policies of “great political significance” “intruding on power reserved for States.” 

In 2009, the department violated three federal laws that prohibit federal control of education when they coerced nearly every state in the nation to adopt the Common Core standards through Race to the Top grants.

With only minor exceptions, the General Education Provisions Act, the Department of Education Organization Act and the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act, ban the Department from directing, supervising or controlling elementary and secondary school curriculum, programs of instruction and instructional materials.

The West Virginia v. EPA decision could be the most significant decision rendered by the Supreme Court this year. It addresses federalism, states’ rights and the constitutional balance of powers, and sets precedent to rein in activist, unconstitutional federal agencies.