Despite a lifetime spent studying history and politics, it still surprises me when federal regulators attempt to overreach their constitutional authority in an effort to make policy. When that happens, the policy created is not only illegal; it is myopic, short-sighted — and just plain bad.
To get a sense of how bad, consider the draconian actions the Obama administration is threatening to take against states in its effort to impose a convoluted environmental regulatory regime.
The Environmental Protection Agency, an entity well known for expanding its scope of power to advance an activist climate agenda, is proposing a top-down “Federal Implementation Plan” on states it determines are not sufficiently implementing the Obama administration’s so-called Clean Power Plan. This approach ignores the principles of federalism which became a critical tenet of the crafting and ultimate ratification of the Constitution and the framework by our Republic.
Even James Madison, who argued passionately for a central government, acknowledged that it should be limited in its role and authority.
“The powers delegated by the proposed Constitution to the Federal Government are few and defined,” he famously wrote in the Federalist Papers (No. 45). “Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace negotiation, and foreign commerce; … The powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people …”
The proposed regulations have not been finalized by the Obama administration. If they are – as is widely expected – the EPA would be handed an unprecedented and even dangerous level of authority, allowing it to trample individual property rights and curtail the powers that the Constitution reserved for states.
The troubling irony here is that the sweeping rules EPA is proposing will not actually help the agency achieve its stated goal of significantly lowering greenhouse emissions. This is an especially important point, as the nation’s coal-fleet accounts for a mere 3 percent of global greenhouse gas emissions, yet provides 40 percent our nation’s electricity. EPA Administrator Gina McCarthy admitted as much during congressional testimony last summer when she said that the “great thing about the [EPA Power Plan] proposal is that it really is an investment opportunity. This is not about pollution control.”
Laurence Tribe, a Harvard law professor and one of President Obama’s mentors, argued in a filing to the EPA on the Clean Power Plan that “such federal commandeering of state governments defeats political accountability and violates principles of federalism that are basic to our constitutional order.”
Recognizing the EPA’s egregious federal overreach, a number of states have already petitioned the EPA, arguing that the proposed rule wrongly encroaches on state agencies that currently regulate electricity generation. Should the EPA not withdraw or significantly alter its Clean Power Plan, it will almost certainly be struck down by the courts, while costing taxpayers and electricity ratepayers millions of dollars in legal fees.
Looking back at history, the colonists’ and their legislatures expressly demanded the preservation of state powers — ultimately the 10th Amendment — as a condition for ratification of the federal Constitution. And history would mark them right to demand such provisions. Reeling from England’s tyranny, they feared the prospect that an overzealous central government would infringe on their individual freedoms.
Sadly, the limits that Madison and the other framers of the Constitution sought to impose on the federal government have gradually eroded, largely under the cover of good intentions. The Obama administration should correct this latest affront to our Constitution and abandon its quest to create flawed policy that undermines state powers.
Mike Duncan is president and CEO of the American Coalition for Clean Coal Electricity and former head of the RNC. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions for editorials, available at this link.
