THE DURATION OF A JUDICIAL INNOVATION...:

Conservatives have long argued that the executive branch routinely oversteps the authority granted by the Constitution in regulating all kinds of economic activity.

"This is really about a fundamental question of who decides the major issues of the day," said West Virginia Attorney General Patrick Morrisey, speaking at an event in Washington this month, before his appearance before the Supreme Court on Monday. "Should it be unelected bureaucrats, or should it be the people's representatives in Congress? That's what this case is all about. It's very straightforward."

Others maintain that Congress delegated authority to the executive branch to broadly regulate air pollution under the Clean Air Act. The legislature makes the law; the executive implements it through regulation, they say.

"Just because the opponents are particularly shrill in their objection doesn't change the fact that this regulation is no different than hundreds of regulation that the agencies have produced since the New Deal -- just as Congress intended them to do," said Richard Revesz, who teaches environmental law at New York University and filed a brief in support of the administration.

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