When Congress seems slow to solve problems, it may be only natural that those in the Executive Branch might seek to take matters into their own hands. But the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives. In our Republic, “[i]t is the peculiar province of the legislature to prescribe general rules for the government of society.” Fletcher v. Peck, 6 Cranch 87, 136 (1810). Because today’s decision helps safeguard that foundational constitutional promise, I am pleased to concur. (West Virginia v. EPA, June 30, 2022. Boldface added).
If I had no idea of the facts and history, I would probably agree with all of his general statements. But “pen and phone” simply means to regulate. It is used by both sides. Even to deregulate is pen and phone. It is a strange kind of lie, told by or to the Justice, and if the latter, he must be helped to recognize it as such. “Pen and phone” itself is an innocuous term, and has been used hypocritically, withheld when a President acts in accord with the will of the industry for no action on climate change, and levied when a President acts to protect us. For a Supreme Court Justice to link the dutiful exercise of executive power to the specious charge of circumvention of the will of the people is an immensely sad moment.