Friday, October 2, 2009
Gene Healy, VP of the Cato Institute, argued earlier this week in the Washington Examiner that the EPA's initiative to regulate greenhouse gases from large facilities under the Clean Air Act reflects an Obama imperial presidency. (I posted on similar arguments back in April, when the EPA was just getting started on this, here.)
Healy confusingly seems to argue that the new rules are both contrary to the law and authorized by a too broad Clean Air Act. Healy:
The Obama team appears to believe it has the authority to implement comprehensive climate change regulation, Congress be damned. . . .
But existing law still leaves the executive branch enormous discretionary power--and thus a hammer to hold over Congress's head.
Healy, of course, is talking about the non-delegation doctrine (at least in the second sentence quoted here). But, as Healy acknowledges, the Supreme Court in 2007 in Massachusetts v. EPA ruled on the very provision of the Clean Air Act that authorizes the EPA to so regulate--and held that the EPA had to comply. That provision states that the EPA
shall by regulation prescribe . . . standards applicable to the emission of any air pollutant from any class . . . of new motor vehicles . . . which in [the EPA Administrator's] judgment cause[s], or contribute[s] to, air pollution . . . reasonably . . . anticipated to endanger public health or welfare.
42 U.S.C. Sec. 7521(a). The Supreme Court in Massachusetts v. EPAruled not only that the EPA had authority under the Clean Air Act to regulate greenhouse gases, but also that it had an obligation under the Act to make a judgment whether the gases contributed to global warming--a judgment that it refused to make. As Healy acknowledges, the Court did not rule that congressional delegation under the Clean Air Act was too broad--that the Act delegated lawmaking authority to the EPA in violation of the non-delegation doctrine. That argument was not even seriously in play in the case.
So the Obama administration's decision to commence regulation of greenhouse gases is fully consistent with its authority under the Clean Air Act and Massachusetts v. EPA. Healy acknowledges this.
But then he argues that the administration's move is "imperial" and, as support, throws in everything from Madison on separation-of-powers and liberty to the unitary executive theory. He concludes with this:
Will liberals who decried George W. Bush's unilateralism object to this staggering concentration of executive power? Don't hold your breath.
Healy is flat wrong in aligning the Obama EPA's decision to regulate greenhouse gases with the Bush administration excesses. Most notably, the EPA's decision, as Healy acknowledges, is perfectly consistent with the Clean Air Act. Regulation of greenhouse gases doesn't undermine congressional authorization under the Act; it realizes it. In contrast, so many of the Bush administration actions were contrary to law, relying only upon strained understandings of "inherent" Article II powers.
None of this has anything to do with the unitary executive theory--the original theory, or the much more expansive one promoted by the Bush administration. And the EPA certainly can't be accused of threatening liberty by disrespecting separation-of-powers principles. (If any branch could be so accused, by Healy's own reckoning it'd have to be Congress.)
In short, Healy's problem is not a constitutional one, and certainly not an imperial presidency one. Even if his premise--that the Clean Air Act delegates too much to the executive--were correct, it has nothing to do with his conclusion that "the imperial presidency comes in green, too."