When Congress is deadlocked on some urgent issue, such as climate change, presidents often insist that they must be able to act, even if doing so means doing things that neither Congress nor the Constitution’s drafters ever explicitly authorized. But does the danger to be salved justify the danger of departing from constitutional government?
In the case of the EPA’s new Clean Power Plan, the answer is clearly “no.” The plan requires states to reorganize their electrical power mix and electricity usage, matters that EPA has no statutory power to regulate directly, in order to eliminate the coal-fired power generation that it can regulate directly. There is debate about the plan’s constitutionality, but none whatsoever about its lack of benefits. The EPA itself admits that the plan’s utility against the threat of climate change will be so small (reducing warming by 0.016 degrees Fahrenheit over the next century) that it will be impossible to measure.
Even a trivial risk to the Constitution might seem to outweigh a trivial benefit. And the risks here are anything but trivial, worse than even the plan’s opponents have fully grasped. Harvard Law Professor Laurence Tribe, an Obama mentor, has attacked the plan, as David Graham recently explained:
Tribe argues that the rule violates the Fifth Amendment because it constitutes a regulatory "taking" by the federal government, limiting a corporation's use of its coal plants without due compensation, and that it violates the Tenth Amendment by coercing states into creating their own CO2 reduction plans or else risking the federal government imposing its own plan.
The whole scheme of cooperative federal-state regulations also raises major constitutional questions. When the EPA says to the states, in effect, “develop a plan to implement our new regulation, or we will impose a federal plan, and you won’t like it,” it is inherently coercive. But that’s the way the Clean Air Act is structured, along with a host of other federal programs. The Supreme Court, though, has thus far taken a permissive view of this de facto federal takeover of the functions of state government.