Asked recently when the Senate might vote on cap-and-trade legislation, Majority Leader Harry Reid, D-Nev., demurred, muttering about “a busy, busy time the rest of this year.” And yet last week, the Obama administration quietly moved forward with a plan to regulate power plants and other large stationary sources of greenhouse gases.
The Obama team appears to believe it has the authority to implement comprehensive climate change regulations, Congress be damned. Worse still, under current constitutional law — which has little to do with the actual Constitution — they’re probably right.
In 2007, the Supreme Court ruled that the 1970 Clean Air Act’s definition of air pollutants was broad enough to allow regulation of carbon emissions from new vehicles and that the Environmental Protection Agency was required to regulate once it issued a finding that such emissions contribute to global warming. In fact, once the EPA rules that carbon dioxide is a dangerous pollutant — as it did in April — regulation of industrial sources likely becomes mandatory.
But, existing law still leaves the executive branch enormous discretionary power — and thus a hammer to hold over Congress’ head.
President James Madison believed that there could be “no liberty where the legislative and executive powers are united in the same person.” And yet, here we are with those powers united in the person of a president who has pledged to heal the planet and stop oceans from rising.
This constitutional nightmare is the culmination of a trend many years in the making. The first sentence of the Constitution’s first article says that “all legislative powers herein granted” are vested in Congress.
The Supreme Court once took that language seriously, as when, in 1935, it struck down a key New Deal program for delegating legislative power to the executive. Yet, the court eventually made its peace with statutes that allow the executive branch to both make and enforce the law.
That paved the way for the modern administrative state, which looks a lot like the situation complained of in the Declaration of Independence: “A multitude of new offices … harass our people and eat out their substance.”
After 9/11, the phrase “unitary executive theory” came to stand for the idea that the president can do whatever he pleases in the national security arena. But, it originally stood for a more humble proposition. UET’s architects in the Reagan administration argued that the Constitution’s grant of executive power to the president meant that he controlled the executive branch and could therefore rein in aggressive regulatory agencies. But as Elena Kagan, now President Barack Obama’s solicitor general, pointed out in a 2001 Harvard Law Review article, there’s little reason to think that “presidential supervision of administration inherently cuts in a deregulatory direction.”
How far will Obama push in the other direction?
As Kagan wrote, after the Democrats lost control of Congress in 1994, President Bill Clinton used his regulatory authority to show progress, pushing “a distinctly activist and pro-regulatory agenda.” As Obama’s popularity erodes, he may come to like the idea of being the “decider.”
Will liberals who decried President George W. Bush’s unilateralism object to this staggering concentration of executive power? Don’t hold your breath.
Examiner columnist Gene Healy is a vice president at the Cato Institute and the author of “The Cult of the Presidency.”