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The Climate and the Constitution

On Monday, President Obama announced the appointments of Gina McCarthy to run the Environmental Protection Agency and Ernest J. Moniz to take charge of the Department of Energy. In a week when the country is focused on the issue of the debt, the sequester and the budget, these nominations are not generating as much interest as the question of whether the administration is orchestrating government cutbacks to increase pressure on Congress to raise taxes. But their significance should not be underestimated. As the president indicated, he is planning on using these two agencies and their leaders to pursue an aggressive climate change agenda in his second term.

The debate about global warming and the hysteria that has become an integral part of the environmentalist agenda is one thing. But the key issue involved in these appointments and the president’s intentions for the next four years is one that revolves around legal issues as much as it does scientific disputes. It doesn’t matter whether you are in full agreement with the president on this issue or buy into only a part of it or none at all. The question before the nation here is whether the executive branch can or should give itself the power to run roughshod over Congress and unilaterally implement new regulations that will give the force of law to the president’s climate beliefs. If McCarthy and Moniz intend to use their regulating power to redraw the laws concerning fossil fuel emissions or the ability to explore or drill for new energy sources, then the result will be as much of a Constitutional crisis as anything else.

As the New York Times reports:

The E.P.A., which the Supreme Court granted authority to regulate carbon dioxide and other heat-trapping gases, is in the midst of writing regulations governing such emissions from new power plants. Those rules, expected to be completed this year, would essentially bar construction of any new coal-fired power plants unless they included the means to capture carbon gases, a technology that does not yet exist on a commercial scale.

But to make a real dent in the nation’s emissions, the agency must then devise emissions limits for existing plants, a hugely controversial project that could force the shutdown of dozens of older coal-burning power plants, cause a steep drop in domestic demand for coal and trigger a sharp rise in energy prices.

No matter how carefully written — and Ms. McCarthy is an expert on federal air quality law — any such regulations would be subject to intense opposition in the courts, and in Congress, which could seek to overturn the regulations.

The problem here is that the Court’s decision about the EPA as well as the Clean Air Act that Congress already passed gives the executive branch far-reaching powers to transform the American economy without congressional approval. That means the president could potentially draw up rules that could not only have a deleterious impact on fuel exploration and recovery methods like fracking, but also force American industries and businesses to go implement costly changes to satisfy the whims of environmentalists that could cost the country jobs and reduce the chances for growth.

That is not to say that Congress and the courts could not throw a monkey wrench into any of the president’s plans. They could, and the prospect of the administration embarking on a series of executive orders and regulatory expansions without the say-so of the legislative branch would produce a historic challenge that might determine the fate of both the economy and any hopes for maintaining limits on an already imperial presidency.

The Constitution created a template by which the various branches of government could exercise checks and balances on each other. At the core of that is the notion that writing laws are the purview of Congress. When a president assumes the right to draft, pass and then enforce laws in areas like global warming, where Congress has expressly refused to act on the subject, it is a sign of a lack of respect for the constitutional process. The executive must be allowed a great deal of leeway in areas like foreign policy and national defense, where the role of the president to act as commander in chief is rooted in law and tradition. But no president ought to be allowed to play the autocrat when it comes to domestic policy.

A desire to do good is never an excuse for a license to govern by fiat. We hope that the former constitutional law professor sitting in the White House will restrain his hubris and instruct his new appointees to act within the law rather than to play god with American businesses. While the panic of those who think the world really is going to melt is real, so, too, is the Constitution. If the president creates a climate in Washington in which our legal framework becomes a matter of the president’s dictates, we will all be the losers in the long run–no matter where you stand on global warming.


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