Federal agencies overstepping their statutory and constitutional authorities, in order to aggregate power to the Executive Branch, has become an issue of especial concern in recent years in the legal academy. We saw this when President Barack Obama declared his intent to direct agencies to achieve through executive fiat what he had failed to secure through legislation, touting his willingness to use his “pen [and] phone.” And President Obama’s agencies heeded this call. Three of his Administration’s signature second-term initiatives were regulatory actions: the Clean Power Plan, Deferred Action for Parents of Americans, and the WOTUS Rule. These agency actions were nothing less than attempts to enact the most far-reaching energy, immigration, and land-use reforms in a generation, without any congressional action; indeed, in the face of congressional rejection of these very policies.
President Obama’s actions spurred State attorneys general into action, highlighting one of the important roles played by State attorneys general and resulting in remarkable success in blocking the President’s attempted agency overreach. Through coordinated legal actions of a majority of the States, the attorneys general halted entirely all three attempts to enact transformative change through regulation. These attorneys general realized that while jurists and scholars typically discuss the agency overreach problem as one of separation of powers — agencies attempting to settle issues of “vast economic and political significance” through rules or guidance documents when such decisions on national issues belong rightfully to Congress — the problem is also one with deep federalism implications, as agencies purport to make laws that usurp State authority and impose significant costs upon the States. Responding to this regulatory attack, State attorneys general — as the chief law enforcement officers of their States — successfully protected their States and citizens against federal agency encroachment. Even now, as the onslaught appears to have ebbed with a new Administration that has a different attitude toward agency authority, attorneys general continue to play an active role in defending congressional actions that seek to overturn regulations by legislation under the Congressional Review Act.
The success of State attorneys general in obtaining a Supreme Court stay against the Clean Power Plan is one of the singular achievements of modern separation-of-powers and federalism litigation. The Clean Power Plan is the Environmental Protection Agency’s effort to enact, by regulatory fiat, a nationwide cap-and-trade regime strikingly similar to the one that President Obama had unsuccessfully sought to shepherd through Congress soon after his 2008 election. In essence, the EPA argued that, based upon an obscure provision of the Clean Air Act, the agency could force States to reorient their entire energy economies away from power plants and in favor of renewable energy through a cap-and-trade regime. A twenty-seven-State coalition, led by Attorney General Patrick Morrisey of West Virginia, sued to stop the Plan and asked the United States Supreme Court to stay the Plan during the litigation. The United States Supreme Court agreed with the States, staying the rule in a historic, 5-4 stay. This appears to be the only instance of the Supreme Court ever blocking a federal regulation while litigation on that regulation was still pending in the lower courts. While Administrator Scott Pruitt has now proposed to repeal the Clean Power Plan, the States’ actions were critical. Had they not sought and obtained the stay of the Plan from the Supreme Court, the Plan would already have forced the States to start transforming their energy economies without any congressional authorization.
The States followed a similar pattern of success in stopping President Obama’s effort to enact transformative immigration reform through agency action. President Obama had previously explained time and again that he had no authority to legalize millions of adults through executive order. Yet, frustrated by the results of the 2014 midterm elections and congressional inaction, President Obama’s Department of Homeland Security issued a plan for Deferred Action for Parents of Americans, which purported to give legal status and work permits to over 4 million undocumented immigrants. This effort was such a blatant end-run around congressional authority that even Saturday Night Live could not resist recasting the famous Schoolhouse Rock “I’m Just A Bill” cartoon to remind its viewers how immigration reform is supposed to be enacted. Texas Attorney General Ken Paxton led a twenty-seven-State coalition challenging DHS’s actions as an illegal overreach that cost the States significant resources, and the Federal Court of Appeals for the Fifth Circuit agreed with the States and blocked DAPA as a violation of the law. Then-Secretary John F. Kelly of DHS withdrew the DAPA memorandum, thus ending the program. But again, if not for the success of State attorneys general in litigation under the prior Administration, this illegal policy would have gone into effect and would have been far more difficult to unwind.
The State attorneys general also successfully obtained a stay against the WOTUS Rule. Under the Clean Water Act, Congress has granted to the EPA and Army Corps of Engineers authority only over “navigable waters,” recognizing the States’ primacy in the area of water and land-use regulation. Violating this statutory text and several Supreme Court precedents, EPA and the Corps enacted a regulation that swept into federal jurisdiction numerous local waters with no meaningful connection to navigable waters. They even went so far as to assert federal jurisdiction over any waters, and sometimes damp lands, if that water or land is connected to navigable waters just once every hundred years (seriously!). But these local waters and lands are under State, not federal, authority, under both the Clean Water Act and the Constitution. A thirty-one-State coalition sued to block this Rule, arguing that it was unlawful in numerous respects. The federal Court of Appeals for the Sixth Circuit agreed with the States and issued a nationwide stay against the WOTUS Rule. EPA and the Corps have now moved forward with repealing the WOTUS Rule. Thanks to the efforts of State attorneys general, this repeal will be far less disruptive because the nationwide stay ensured that regulated entities were not forced to apply for permits and change their primary conduct to comply with the WOTUS Rule’s mandates.
And the battle of State attorneys general against federal agency overreach is far from over. Under the Congressional Review Act, Congress has the authority to invalidate recently enacted regulations and to ensure that an agency cannot reenact substantially similar regulations again. In 2017, Congress began to exercise this authority, which is simply its lawmaking function, through the formalities of bicameralism and presentment. Among the regulations that Congress eliminated was a discriminatory rule by the Social Security Administration that stopped law-abiding citizens from exercising Second Amendment rights simply because the SSA had determined that they needed help balancing their checkbooks. When plaintiffs sued to block Congress from using the CRA, and thus seeking to reinstate regulations that Congress has specifically disapproved, Wisconsin Attorney General Brad D. Schimel and Georgia Attorney General Christopher M. Carr led a coalition of States supporting the Congressional Review Act’s legality.
Litigation by attorneys general (or anyone else) can only do so much; ultimately, the citizens need to continue to demand that elected officials comply with statutory and constitutional limitations. But as the attorneys general have demonstrated, well-considered, multistate litigation to protect the interests of States and their citizens against federal agency overreach can play an important role in preserving our system of federalism and separation of powers.