We have entered a new era; one where a conservative Supreme Court majority seems ready to take back from administrative agencies the power to define what Congress has or has not said in legislation. To most observers this might seem logical; the judiciary was always intended to interpret the laws made by Congress. But in fact, for many years Congress has passed the difficult policy questions to administrative agencies, and these non-elected officials have made the policy decisions. This is not what the Framers intended or what is appropriate for a democratic republic.

Although many will see West Va. v. EPA as the Court flexing its conservative muscles, it is better seen as an attempt by the Court to restore the original constitutional structure in which Congress makes the policy decisions that underlie the laws. In doing so, it will end a century of judicial support for a form of progressivism that has driven the growth of the administrative state.