Commentary Magazine


Topic: Clean Air Act

Can SCOTUS Curb Obama’s Imperial Presidency?

In June 2012 the U.S. Supreme Court had a chance to derail a vast expansion of government power by the Obama administration. But the court wound up ruling that ObamaCare was constitutional, even if the rationale provided by Chief Justice John Roberts for his deciding vote contradicted the opinions of the four liberal justices who joined with him to form a 5-4 majority as well as the arguments of the government on behalf of the law. But next week the Court will have yet another opportunity to brush back the president’s fast and loose approach to the Constitution when it will hear arguments concerning the president’s use of executive orders.

The case concerns the Environmental Protection Agency’s attempt to use existing laws in order to give itself the power to regulate emissions from power plants even though the legislation in question says nothing about the federal government having such a right. But more than the proper interpretation of the Clean Air Act will be at stake when the justices vote. As important as efforts to restrain the EPA’s desire to act as a benevolent dictator may be, the crucial point here is whether the president can, as he boasted he would do in his State of the Union address last month, ignore Congress and govern by the use of executive orders. If, as was the case with the court’s perplexing ObamaCare decision, the president gets a pass to do as he likes, the consequences may affect a wide range of topics beyond the contentious debate about the White House’s obsession with climate change.

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In June 2012 the U.S. Supreme Court had a chance to derail a vast expansion of government power by the Obama administration. But the court wound up ruling that ObamaCare was constitutional, even if the rationale provided by Chief Justice John Roberts for his deciding vote contradicted the opinions of the four liberal justices who joined with him to form a 5-4 majority as well as the arguments of the government on behalf of the law. But next week the Court will have yet another opportunity to brush back the president’s fast and loose approach to the Constitution when it will hear arguments concerning the president’s use of executive orders.

The case concerns the Environmental Protection Agency’s attempt to use existing laws in order to give itself the power to regulate emissions from power plants even though the legislation in question says nothing about the federal government having such a right. But more than the proper interpretation of the Clean Air Act will be at stake when the justices vote. As important as efforts to restrain the EPA’s desire to act as a benevolent dictator may be, the crucial point here is whether the president can, as he boasted he would do in his State of the Union address last month, ignore Congress and govern by the use of executive orders. If, as was the case with the court’s perplexing ObamaCare decision, the president gets a pass to do as he likes, the consequences may affect a wide range of topics beyond the contentious debate about the White House’s obsession with climate change.

As I noted here yesterday, the president has already begun making good on his SOTU pledge by announcing his intention to issue executive orders regulating emissions from large trucks that will mandate large-scale and expensive changes in that industry. But the EPA’s decision to give itself the power to regulate existing power plants makes that power grab look like small change.

As the New York Times explains, the details of the case are complicated and confusing. Suffice it to say that although the courts have upheld the EPA’s right to regulate carbon emissions, in order to be able to acquire the right to license all power plants for such activity it has been forced to twist the text of the Clean Air Act into a pretzel:

The agency said its regulation of tailpipe emissions also required regulation of emissions from stationary sources under two permitting programs. The Clean Air Act says those programs cover all sources that can annually emit 100 or 250 tons of the relevant pollutant, a threshold that works tolerably well for conventional air pollutants like lead and carbon monoxide. But that threshold, applied to greenhouse gases, which are emitted in far greater amounts, would require the regulation of millions of sources of pollution.

All sides agree that requiring permits at the statutory thresholds would impose enormous burdens. “We’d be regulating mom-and-pop stores,” said Peter S. Glaser, a lawyer for the Washington Legal Foundation, which filed a supporting brief opposing the regulations.

Applying the law as written would increase the number of covered sources under one program from fewer than 280 to more than 80,000, reaching commercial and residential sources and subjecting them to expenses averaging almost $60,000, according to the appeals court. A second program would reach six million sources, subjecting them to expenses of more than $20,000 each. The cost of the programs would rise to $21 billion from $62 million.

What’s happened here is that by giving the EPA this power, the court has set in motion a process that could create a regulatory process that would cause massive economic dislocation. In order to avoid such an “absurd result,” the administration is therefore selectively enforcing the law. But, as with other such selective policies, what this means is that essentially the government has given itself the right to act as both legislature and executive to decide what the law means and how it can be enforced.

Given other court decisions that have given the EPA vast powers, it’s far from clear that even a setback for the administration will halt its campaign to overhaul the economy in order to comply with the president’s beliefs about climate change. But the impact of a precedent that would allow him to act as a benevolent dictator to force industries to obey his “green” marching orders means more than just the possible shutdown of hundreds of coal-firing power plants around the nation. It would mean a decisive shift in the balance of power between Congress and the executive branch that could shelve the notion of checks and balances that have enabled our constitutional republic to function.

Over the years both Congress and the courts have often acquiesced in a process whereby the executive branch has grown by leaps and bounds to assume the sort of influence and power that would have been unimaginable to the founders. But so long as the legislative and judicial branches retain the power to write and then interpret the laws, even the federal leviathan can be held in check. But if Justice Roberts and the Supreme Court allow President Obama to get away with not only selectively enforcing laws but also re-writing them on the fly, our system of government will have been fundamentally altered for the worse.

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