CHARLESTON – The U.S. Supreme Court recently heard argument in a major case that is likely to have profound consequences for West Virginia’s legal fight against unconstitutional actions by the federal government that threaten our way of life.
We are all sadly aware of the harmful impact that federal regulations and a hostile presidential administration can have on jobs in West Virginia. Over the past decade, federal agencies under the direction and control of Presidents Obama and Biden have repeatedly expanded their powers to damage and even destroy critical job-creating industries in West Virginia.
First, they came for our coal mining jobs with the so-called “Clean Power Plan,” which West Virginia’s own Attorney General took the lead in defeating after several years of court battles. Now they are coming for oil and gas jobs as well, through a variety of damaging federal regulations that make it harder to maintain and grow these industries important to West Virginia jobs by stifling and limiting the market for our home-grown energy.
A major reason these federal agencies believe that can get away with such harmful regulations is because of a legal doctrine called Chevron. Under that doctrine, courts are required to defer to the agency’s “reasonable” interpretations of so-called “ambiguous” laws passed by the Congress when the agency creates a regulation.
As a result, federal agencies have sought to expand their regulatory reach where they claim that Congress was “silent” on a particular issue in a written law. Worse still, Chevron effectively requires courts to decline to do their job to “say what the law is,” and instead defer to the federal agency — meaning that, most of the time, the federal agency will win any legal challenge to their regulation.
Many states, including our own, have argued to the Supreme Court that the Chevron framework violates the separation of powers and federalism laid down by our Founding Fathers in the Constitution, and so it should be overruled or significantly limited. After all, it is the role of the legislative branch to write the laws — not the executive branch through its ever-expanding regulations.
And more than that, Chevron wrongly limits the power of the third branch — the courts — to do their job in faithfully interpreting and applying the law.
As experience has taught us, the Chevron doctrine makes it far too easy for courts to let federal agencies run amok with their legally flawed regulations that hurt West Virginia families. Now is the time for the Supreme Court to restore the fundamental separation of powers in our Constitution so federal regulators can no longer use Chevron as a free pass to avoid the legal scrutiny of constitutionalist judges.
As Attorney General, I will continue the fight for our Constitution and West Virginia jobs against federal overreach, including against harmful legal doctrines like Chevron.
McCuskey, a Republican, currently is West Virginia's auditor. He is running for Attorney General.
