Last week the United States Court of Appeals for the District of Columbia heard arguments challenging the Environmental Protection Agency’s effort to regulate greenhouse gas emissions from existing power plants. The Clean Power Plan, as it is called, is central to President Barack Obama’s overall Climate Action Plan. West Virginia and Texas are leading the 27 states and state agencies now in opposition to the CPP regulations, and some 120 companies and organizations have filed in support of the coalition’s complaint.
CPP is designed to bring about what the EPA calls an “aggressive transformation” of electricity generation throughout the country. It would do this by systematically “decarboniz[ing]” power generation and ushering in a new “clean energy” economy less reliant on carbon. CPP requires that, by 2030, power-plant carbon emissions be reduced by a third from what they were in 2005.
According to the U.S. Chamber of Commerce, the plan would drive up electricity costs for businesses, consumers, and families, impose tens of billions of dollars in annual compliance costs, and reduce America’s global competitiveness—without any significant reduction in global greenhouse gas emissions.
But whatever you might think of the rule as energy policy, the biggest problem with it is this: The rule is illegal, indeed unconstitutional.
Under the Constitution, Congress makes law, and the executive enforces it. Unfortunately, over the past 80 years Congress has delegated to executive agencies the power to regulate in many areas. But that is not a blank check to the executive: If Congress has not made a specific delegation, then regulations in that area created by the executive branch are not valid. And that is what has happened here.
As Chief Justice John Roberts said in his dissent in City of Arlington v. FCC (2013), “Agencies are creatures of Congress.” He then quoted what the Court said in an earlier case, Louisiana Public Service Commission v. FCC (1986): “an agency literally has no power to act . . . unless and until Congress confers power upon it.”
Congress has debated bills that would achieve carbon reductions, but it hasn’t passed any. So the administration turned to Section 111(d) of the Clean Air Act of 1970, claiming it authorizes the EPA’s new regulatory effort. Thus would an obscure, 300-word statutory tidbit enacted 46 years ago be used to justify 2,000 pages of new regulations applying to the nation’s entire power grid. But the Congress that created Section 111(d) never intended or expected the provision to authorize a massive program regulating greenhouse gas emissions.
In last week’s argument before the appeals court, Judge Brett Kavanaugh said the language of the statute is “very convoluted at best.” And thus, it would seem, hardly the basis for a delegation of power.
The Clean Power Plan would take power from the states and the people—itself an action of dubious constitutionality. After all, the Tenth Amendment provides that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” And regulating a state’s mix of electricity sources has been a core state function, not a federal one, from the days of Thomas Edison to our own.
Down through the years, courts have developed a doctrine known as “cooperative federalism,” under which, to be held constitutional, federal rules must provide states with a meaningful opportunity to decline their implementation—something the Clean Power Plan does not do. Again, from the Chamber of Commerce: “States that decline to take legislative or regulatory action to ensure increased generation by EPA’s preferred power sources face the threat of insufficient electricity to meet demand. The rule is thus an act of commandeering that leaves states no choice but to alter their laws and programs governing electricity generation and delivery to accord with federal policy.”
West Virginia v. EPA bears on the presidential race since the major actor in the case is President Obama. Writing in our pages three months ago, Christopher DeMuth explained how by turns under previous presidents, starting with FDR but at a faster pace under Obama, our government has assumed “a new form” with the federal executive branch more powerful than ever before and protections of limited government weakened. (See “Our Voracious Executive Branch,” June 27, 2016.) The president and his agencies exercise power, with or without Congress, however they can in order to set policies on matters “previously decided by state and local governments and by private citizens, institutions, and markets.” DeMuth’s point: “The federal executive has become, in essence, a unitary national government of nearly unlimited jurisdiction.”
Absorb that while considering what it might have been like during the first presidential debate if moderator Lester Holt had moved off the birther front for a moment and asked what might be done about our unitary national government of nearly unlimited jurisdiction. Neither Hillary Clinton nor Donald Trump would have been likely to criticize our new form of government, since on previous occasions both have stated their admiration for Obama’s unilateral methods and have promised to follow his lead.
Only when the other two branches of government—Congress and the judiciary—screw up the courage to take on executive unilateralism will a rebalancing of powers be possible, a rebalancing essential if the federal government is to respect liberty and leave more issues to the states and private society. That, at any rate, is the right answer to the unasked debate question.
