If climate advocates lose in West Virginia v. EPA, it will mean the EPA can’t put a similar Clean Power Plan back into effect without congressional authorization. But it also might be the only way to create enough political pressure to force Congress to act on climate change in the longer term. On the other hand, if the EPA wins, that outcome will guarantee that Congress stays out of the fight and that each administration will continue to promulgate new rules that can be flipped within weeks of the next Inauguration Day — a stop and start approach to an existential problem.
This isn’t just true of climate change. The Supreme Court has recently become the focus of the most contentious political debates in this country, including abortion and religious liberty, precisely because presidents and the courts have been trying to pinch hit for a Congress that is no longer in the business of legislating.
The government wasn’t designed to work like this. Think for a moment about how strange it was that senators grilled soon-to-be Justice Ketanji Jackson Brown about her sentencing decisions when it is up to Congress to decide what the minimum sentences are for any crime. Or the senators tied up in knots about the Supreme Court’s upcoming abortion decision. Whether there is a right to an abortion in the Constitution wouldn’t be nearly as momentous if Congress had already set a standard for legalized abortion in federal law. Yet, the very notion that Congress would do such a thing is so absurd that the media rarely even mentions the possibility.