JUST DO YOUR JOB:

 Article I of the Constitution is clear: "all legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." The decision by government to force a transition from one type of energy production to another is a legislative decision, and all federal legislative power is vested in Congress. The Court in West Virginia v. EPA at least makes it clear that if Congress delegates major decision-making authority to an executive agency, it must do so very clearly. But there is good scholarship arguing that the "underlying principles, framing assumptions, and text" of the Constitution strongly demonstrate that the legislative power may never be delegated to a branch of government other than Congress. Our republic very intentionally checks the threat of tyranny by a strong separation of powers. The legislature makes the law, the executive enforces the law, and the judicial branch interprets the law. The founders of our country and all who are cautious about the threat of tyranny work hard to maintain separation of powers.

Executive agencies like the EPA are part of the executive branch. It is quite dangerous to allow the same branch that executes the law to also make it. So while West Virginia v. EPA at least limits agencies from assuming rulemaking power without express language from Congress, there is a good argument that this ruling does not go far enough and that Congress can never delegate its legislative power, no matter how clear the delegation language.

Practically, it should be obvious that it is better for the people to have elected legislators enact legislation, rather than have major laws created by unelected bureaucrats working in executive agencies. It is Congress's job to make federal laws and we should make them do it. But there is a common and legitimate criticism: most members of Congress "lack the technical and policy-relevant knowledge needed to understand the implications of legislative proposals." Our legislators are not experts on the environment, the tax code, or most other complicated policy areas in which they make law. I believe there is a simple and effective alternative to delegating difficult legislative decisions to "experts" in the executive agencies: do not eliminate the input of experts in the legislative process, but shift the experts from working in rulemaking agencies to working as congressional staff members. 

The entire House of Representatives has about 9,000 staff members as of 2021. That is a 14 percent decrease since 2009. This 9,000 employee figure includes the staffers who work directly for one of the 435 representatives, as well as in leadership offices and House committees, in both policy and non-policy positions. By way of comparison, the EPA alone has over 15,000 employees. As cases like West Virginia v. EPA begin to chip away at the ability of Congress to delegate difficult legislative decisions to "experts" in executive agencies, perhaps this transfer of staffing numbers is a simple solution. Experts in particular policy fields need to be involved in the making of complex legislation. But these experts currently occupy the wrong positions. The policy experts belong under Congress as advisors, not after and above Congress as the ultimate rulemakers. 

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