“Did the Inflation Reduction Act quietly save the administrative state?” That’s the big question that TNR’s Kate Aronoff took up this week after The New York Times and others reported on an eye-catching bit of fine print in the Inflation Reduction Act, or IRA. Running through the legislative text is language that “define[s] the carbon dioxide produced by the burning of fossil fuels as an ‘air pollutant.’” The detail may seem minor, but its inclusion could be a “game changer,” designed “specifically to address the Supreme Court’s justification for reining in the EPA” in last term’s West Virginia v. EPA decision, at least according to the Times’ Lisa Friedman.
As we’ve noted on these pages before, the high court’s conservative bloc has recently ramped up its war against the administrative state. To that end, it has demonstrated a propensity for disallowing executive branch agencies from having the broadest possible latitude in interpreting the legislative branch’s instructions. So the way the IRA defines carbon dioxide in this explicit fashion, in the Times’ telling, is a defense against these judicial dark arts.
This language shift didn’t go unnoticed by conservatives, and it elicited a very curious response from Texas Senator Ted Cruz, who said, “It’s buried in there … the Democrats are trying to overturn the Supreme Court’s West Virginia v. EPA victory.”
But as Aronoff explained, the mere existence of this language in the bill’s text doesn’t actually repeal anything. The Supreme Court’s decision in West Virginia v. EPA still stands, and its larger implications should remain a cause for worry. But even if including this revised definition of carbon dioxide doesn’t overturn a Supreme Court decision, it might herald the overturning of a school of thought among liberals on how to confront the court, and signal that Democratic legislators intend to apply some more strategic thinking to the challenges posed by the court’s conservative majority.
Cruz’s statement was a moment when the mask slipped. It’s rather unusual to characterize a Supreme Court decision as a “victory.” It’s a weird thing to say about an allegedly august institution that bills itself as a neutral caller of ball and strikes as it interprets the Founders’ intentions and sorts through a body of legal precedent. It’s like saying that the umpires defeated the Houston Astros in the 2021 World Series. And as MSNBC’s Steve Benen notes, Cruz was being oddly salty about congressional lawmakers simply doing their job: using their majority to pass laws. “I understand that Cruz disagrees with the underlying policy,” writes Benen, “but why take issue with a democratic governing process?”
In this case, I think the Texas senator’s complaints fairly neatly expose what’s at work: Cruz sees the high court’s conservative majority as a “victory” in an ongoing ideological project. And he’s not wrong—that is precisely how the court’s conservative bloc see it as well. Their end goal has long been apparent: They want to kneecap Congress and install themselves as an unelected superlegislature with veto power over the executive and legislative branches.
What makes the “administrative state” work is the interplay between these branches. Traditionally, the Supreme Court has granted the executive branch agencies broad discretion to interpret laws, which allows them to be nimble as the times change but the laws don’t. As I’ve previously noted, “An EPA that couldn’t rely on that leeway would need Congress to constantly pass new laws directing it how to proceed on every matter in its purview and then pass additional new laws covering the same ground as circumstances changed.”
The IRA’s revised definition of carbon dioxide won’t thwart the Supreme Court’s conservatives, but it demonstrates that Democrats on Capitol Hill are taking their threats more seriously. As frequent TNR contributor Simon Lazarus tells me, “The most important takeaway from the IRA provisions is not exactly what they say, or how they will strengthen arguments against, for example, the court deploying the major questions doctrine to overturn important new EPA actions. Rather, what is important is the political fact that Democrats acted at all to take on [a Supreme Court] intent on micromanaging Congress and executive agencies and in the interest of Republican agendas and interests—in particular, the priorities of Republican megadonors who also happen to have funded the justices’ ascent to the power they now possess on the court.”
This week’s news augurs something of a sea change, in which Democrats are alert and alive to the challenge and have started to think more strategically about countering the conservative judicial movement. This is long overdue. Back in 2021, President Biden asked a White House commission to weigh various ideas to reform the Supreme Court during a time of grave concerns about its legitimacy; the commission’s report offered scant solutions. As recently as July, there were concerns in liberal circles that Biden was failing to meet the problems that the Roberts court presented head-on.
As Lazarus wrote in these pages back in June, liberals “must embrace a hybrid genre of political-legal combat,” discredit the legal arguments of the conservative bloc, and advance new and novel legal arguments of their own. The language in the IRA that’s being touted by environmental advocates may be the first stirrings of this larger battle. But at the very least, we can all finally acknowledge the facts as Ted Cruz understands them: The Supreme Court’s conservative justices are ideological actors, through and through.
This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.