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Anarchy, State, and Gorsuch

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Truly his mother’s son:

Nearly four decades ago, Anne Gorsuch Burford resigned as the head of the Environmental Protection Agency. Though at the helm for less than two years, she left behind a notorious anti-environment legacy, slashing the agency’s budget by 22 percent and claiming to have cut the length of clean water regulations by more than 90 percent.

Burford died in 2004, but her approach to the planet lives on in her offspring: Neil Gorsuch, Trump’s first appointment to the Supreme Court. And on Thursday, Gorsuch proved that he truly is his mother’s son, handing down an opinion in which he threatens to give Republicans on the Supreme Court veto power over countless federal regulations—and potentially render the EPA an impotent husk.

It’s a sneaky opinion. For one, it’s a dissent, meaning Gorsuch didn’t technically get his way in Gundy v. United States. The case—which revolves around a 2006 statute known as the Sex Offender Registration and Notification Act—asks when Congress should be able to let executive agencies determine some details of policymaking. Gorsuch wanted to take away much of that power, writing that the near-century old legal principle behind it is “misadventure.”

Gorsuch’s dissent signals how the Court will rule in the future. He was very likely in the minority this time around because Trump’s newest appointee, Brett Kavaunaugh, sat out the case, since he wasn’t on the court when Gundy was argued. Justice Samuel Alito sided with the Court’s liberals in the case, but explicitly said he would reconsider his position if the Court decided to take the question up again. “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years,” Alito explained, “I would support that effort.”

Thus, when the next case arises, Kavanaugh will be there, and that means that there will almost certainly be five votes to write Gorsuch’s views into the law. Gorsuch’s opinion leaves little doubt that this new Supreme Court regime will seek to dismantle laws that permit agencies to regulate.

Two obvious examples of such laws are the Clean Air Act and the Clean Water Act. When Congress passed them, it said that the United States must have healthy, breathable air, and clean, drinkable water. But the EPA was given the power to determine how to implement many of the specifics of this overarching goal.

How can the next Democratic-controlled Congress and president govern? There’s not supposed to. Bringing nondelegation doctrine back will be one of the most potent weapons the Roberts Court has against any kind of regulatory state.

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