A Constitutional Tutorial for Obama

A Constitutional Tutorial for Obama

The President doesn't possess 'an unheralded power' to rewrite laws.

 

From the Wall Street Journal

The Obama Administration's abuse of executive power is emerging as this Supreme Court term's defining theme, and on Monday the Justices applied some basic constitutional law to the White House's anticarbon agenda.

In Utility Air Regulatory Group v. EPA, the Justices feed several major climate regulations into the wood chipper. "When an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy," the majority observes, "we typically greet its announcement with a measure of skepticism."

The ruling amounts to an overdue correction to Massachusetts v. EPA, the 5-4 ruling in 2007 that held greenhouse gases can be "pollutants" under clean air laws that were written decades before the carbon panic. That decision wrongly rewrote the Clean Air Act, but it was also always narrower than liberals made it out to be and never the license for policy rewrites that became the EPA's interpretation.

The problem for the agency is that the Clean Air Act sets precise emissions thresholds for "major sources" of a given pollutant, defined as more than either 100 or 250 tons annually. Congress had in mind traditional industrial byproducts like SOX or ozone, but the ceilings make no sense for ubiquitous carbon. Any CO2 rule would thus reach well beyond power plants and factories to millions of small carbon sources like hospitals, grocery stores, shopping centers, farms and churches, with penalties of $37,500 per day for violations.

To obey the law as written, the EPA estimated, permit applications under one program would have climbed to 6.1 million a year from 15,000 today, while administrative costs in another would have exploded to $1.5 billion from $12 million. The agency conceded that such a regime would be "unrecognizable" to Congress. Yet in 2009 the EPA regulated anyway and asserted unilateral power to "tailor" the law. It baldly increased the thresholds by as much as a thousandfold to avoid having to supervise elementary schools the same as cement mixers.

Amid a tangle of partial concurrences and dissents, Justice Antonin Scalia wrote the controlling 5-4 opinion striking down this tailoring as illegal. He writes that it is "patently unreasonable—not to say outrageous—for EPA to insist on seizing expansive power that it admits the statute is not designed to grant."

Justice Scalia catches the EPA climateers selectively citing statutes, claiming that they are compelled to regulate by the Clean Air Act but uncompelled to abide by its text. The act is "not a command to regulate," and neither is Mass. v. EPA, he reiterates. More to the point, "An agency has no power to 'tailor' legislation to bureaucratic policy goals by rewriting unambiguous statutory terms."

Even better, Justice Scalia's opinion explicitly defends the structure of the Constitution. Blessing the EPA's tailoring rule would be "a severe blow to the Constitution's separation of powers" where Congress enacts laws and the President enforces them, he writes. This remedial civics lesson ought to be unnecessary but with the Obama crowd it's essential. "We are not willing to stand on the dock and wave goodbye as EPA embarks on this multiyear voyage of discovery" that ignores the will of Congress, Justice Scalia writes.

The Court did still preserve 7-2 the Mass. v. EPA prerogative to regulate carbon in other contexts, such as requiring new or substantially modified power sources to install "best available control technology." But the ruling says this authority is not "unbounded," which suggests the Court is warning EPA to tread carefully when exercising "extravagant statutory power over the national economy."

That could include the rules for existing power sources that the EPA rolled out earlier this month. They are grounded in an obscure catch-all clause of the Clean Air Act that wasn't before the Court in Monday's case. Section 111(d) runs only a few hundred words, yet the EPA is claiming unprecedented authority to command the states to create cap-and-tax programs or otherwise ration energy use. A less willful Administration would heed this warning and restrain its ambitions, but this one refuses, so the High Court will have to keep issuing Constitution 101 tutorials.

In any other Administration, such a Supreme Court smackdown on so important a regulation would also invite more media scrutiny of executive overreach. When the 2008 Boumediene decision gave terrorists the right to make habeas corpus challenges to their detention, the story was that the High Court was reining in a power-mad President.

Mr. Obama's regulatory abuses are far more corrosive to the Constitution than anything George W. Bush did on war powers, but the press corps has barely noticed. Maybe it will start now that the Supreme Court is calling out President Obama's lawbreaking.