Harvard law professor Cass Sunstein once said the notion that Congress can’t delegate its lawmaking power to the vast executive branch bureaucracy had one good year — 1935.

That’s it. The other 233 years of constitutional government were not so good. 

Perhaps until this week, that is.

1935 was when the Supreme Court thwarted the opening scenes of Franklin Roosevelt’s New Deal by overturning two parts of the National Industrial Recovery Act. The president wanted control over the practices of virtually every American business through “codes of fair competition.”

As crazy as that sounds, the nation was in a crisis in 1935. Unemployment hovered at about 20%. Drought and dust storms were ravaging the Midwest. Dorothea Lange had begun putting faces to the hunger, hardship and despair in the land as she traveled and took photos for the Farm Security Administration. 

The American system of government always seems a bit plodding in the face of a domestic crisis, as it does again today. The question is whether the current crisis — a changing climate that threatens much of the nation — is bad enough to deliberately weaken the Constitution’s form of representative government.

To that, the U.S. Supreme Court gave an emphatic no on Thursday. The 6-3 decision said Congress, when it passed the Clean Air Act many years ago, did not give the Environmental Protection Agency the power to impose a cap on the carbon dioxide emissions of power plants in an effort to fight climate change.

Rules still matter, and the Constitution makes Congress, not the executive, the branch that writes laws.

In our opinion: Why can’t Congress govern through a pandemic?

That’s true, even though capping emissions may be a good idea, Chief Justice John G. Roberts wrote in the majority opinion.

“Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’” Roberts wrote. “But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme …”

And why not?

“A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”

Abandoning coal isn’t the answer. There is a better path to cleaner air and saving the planet

Pity us, we have to wait for Congress to craft a solution to climate change, and at a time when the nation is divided along party lines over whether such a thing is even needed. And it has to be a clear solution, not just some vague direction to an agency.

And yet it must be so. We shouldn’t allow unelected bureaucrats to force disruptive changes in the economy simply because they think it’s good. We need the people’s representatives to make those decisions.

Yet, despite some recent successes with an infrastructure bill and gun legislation, compromises have been in short supply lately. They aren’t good for politics. It’s much easier to punt to the experts who run federal agencies, then point fingers at them — or to simply ignore the problem altogether. 

Opinion: If conservatives won’t act on climate change, who will?

In this case, then-President Barack Obama asked the EPA in 2015 to use a provision of the law to come up with mandates to limit emissions from power plants that use coal and natural gas. A bunch of states took that to federal court, and in 2016 the Supreme Court temporarily stopped enforcement of the plan until the legal issues could be sorted.

In the meantime, Donald Trump was elected president, and his administration repealed the plan entirely and set up different standards. That led to a challenge by a different group of states and stakeholders. The U.S. Court of Appeals for the D.C. Circuit struck down the Trump plan, and that decision was appealed to the Supreme Court, which led to Thursday’s ruling.

Notice the absence of Congress in all of this, except for the original passage of the Clean Air Act many years prior.

In our opinion: Congress, where’s the urgency to tackle these issues before 2020?

Yuval Levin, a senior scholar at the American Enterprise Institute, wrote a piece for The Atlantic two years ago that said Congress is “failing as an institution.”

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“Legislation barely moves, the budget process has not functioned properly in years, members of both parties are frustrated with their leaders, and the institution has long been surrendering its power to administrative agencies, presidents, and judges,” he wrote.

No one should diminish the importance of countering the effects of climate change. Whether you believe it’s human-caused or not, the persistent drought, with its wildfires and dust, and the seasonal bouts of extreme air pollution along the Wasatch Front should put you squarely behind the need for solutions.

Climate change is here. Is Utah ready?

Yes, drastic changes in policies can cost jobs and disrupt lives. But surely the nation’s representatives can craft something that softens those blows while enacting sensible solutions to help us breathe easier. That’s what we elect them for.

And, for perhaps the first time since the Great Depression, the court is making it clear this is our only choice.

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