The Emperor’s Green Clothes

According to Thursday’s New York Times, “the Obama administration announced on Wednesday that it was moving forward on new rules to regulate greenhouse gas emissions from hundreds of power plants and large industrial facilities.”

President Obama has said that he prefers a comprehensive legislative approach to regulating emissions and stemming global warming, not a piecemeal application of rules, and that he is deeply committed to passage of a climate bill this year.

But he has authorized the Environmental Protection Agency to begin moving toward regulation, which could goad lawmakers into reaching an agreement.

In the book that popularized the phrase “the Imperial Presidency,” historian Arthur Schlesinger Jr. focused overwhelmingly on the vast growth of presidential power in foreign affairs. But as an inveterate New Dealer, Schlesinger had a blind spot where it came to the Emperor’s burgeoning powers at home.

The Supreme Court’s virtual abandonment of the nondelegation doctrine after 1935 paved the way for the modern administrative state, in which Congress all too eagerly cedes legislative power to the executive branch. As the Obama administration’s latest actions on global warming show, the Imperial Presidency comes in green, too. From my column in the Washington Examiner this week:

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 the oceans’ rise.

The Times article makes clear that Obama won’t push his authority under the Clean Air Act (or the Supreme Court’s interpretation thereof in Mass. v. EPA) as far as he might, yet: “By raising the standard to 25,000 tons, the new rule exempts millions of smaller sources of carbon dioxide emissions like bakeries, soft drink bottlers, dry cleaners and hospitals.” Instead, the administration plans to use its power under the CAA as a hammer to hold over Congress’s head, pushing it to act on cap and trade.

But eventually, Obama could push that authority even further. According to a comprehensive legal analysis issued by NYU Law School’s Center for Policy Integrity“if Congress fails to act, President Obama has the power under the Clean Air Act to adopt a cap-and-trade system.” (Emphasis mine). (Note in the link above that Matt Yglesias, dedicated opponent of Bush’s war-on-terror executive power grabs, doesn’t seem exactly upset at the prospect of cap-and-trade via executive fiat.)

True, such a move would be litigated to death, and the forests of paperwork it would generate might result in a carbon footprint larger than whatever it abated. Nonetheless, we ought to be disturbed by the notion that in a democratic country the president could make such a move without an up or down vote from Congress. And, as I suggest in the Examiner piece, it ought to make conservatives question their longtime conviction that presidential control over administrative agencies is a reliable method for decreasing the country’s regulatory burden:

After 9/11, the phrase “unitary executive theory” (UET) 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 humbler 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.

In an era when Republicans held a virtual lock on the Electoral College, that idea had some appeal. But as Elena Kagan, now President 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.”

… [A]s Kagan notes, after the Democrats lost control of Congress in 1994, President Clinton used his regulatory authority unilaterally 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.”