President Obama has been willing not only to use invalid science in pursuit of his impossible climate goals but also to burn the Constitution as a prominent liberal constitutional law professor has pointed out. Presumably Hillary Clinton would do the same. When Congress turned down Obama’s cap and trade bill in 2009-10, Obama decided to use the Clean Air Act (CAA) to reduce US carbon dioxide (CO2) emissions. He said at the time that his CO2 reduction efforts would make electric power rates “skyrocket,” and that is just what the EPA Clean Power Plan (CPP) will do. I pointed out at the time that the science being used was invalid based on use of the scientific method but that was not the only problem. Another problem was that the Clean Air Act was not written to regulate GHG emissions and can be used for that purpose only by changing the Act, which Congress is highly unlikely to do. The only possible CAA section EPA could use (Section 111(d)) for this purpose says that it cannot be used for this purpose as long as emissions from the same “source” are already regulated under Section 112, which is the case.
President Obama’s constitutional law professor and mentor at Harvard, Laurence Tribe, calls Obama’s attempt to flout the Constitution in order to get his way on the “Clean Power Plan” (CPP) a “trifecta” since it attempts to go around three major institutions of government: Congress, the courts, and the states. So far Obama has lost every case in several different policy areas on similar attempts (most recently immigration). One-by-one the courts have struck them down despite Obama’s expertise on the subject as a former professor of constitutional law. The major exception is the legality of the CPP, more accurately called the Costly Power Plan. This is a regulation from EPA that forces states to reduce fossil fuel use in their electricity generation in favor of “renewables” such as wind and solar (but not hydro, which most environmental groups dislike, of course), whether they want to or not.
Obama is very likely to be remembered as the President that could not reach agreements with Congress to do much of anything except Obamacare, which led to an impasse in which Obama attempted to impose his priorities by Presidential regulations or decrees. So far he has mainly tested and failed to demonstrate Executive Branch power and not much else.
On February 9, 2016, the Supreme Court issued an unusual stay on the CPP before a case brought by 28 states, the coal industry, and other opponents was even reviewed by the DC Circuit Court of Appeals. Three and a half days later, one of the 5 justices to vote for the stay, Antonin Scalia, died. In 2013 Obama had managed to “stack” the DC Circuit Court with “liberal” justices after a major fight with Congress, so the odds are good that Obama could win the case at the DC Circuit level despite the very weak legal case for the legality of the CPP.
The Major Constitutional Issues Raised by the CPP Case
Among many other legal issues is the Clean Air Act Amendments of 1990, which explicitly prohibit what EPA has done in the CPP. EPA attempted to circumvent this inconvenient legal fact by effectively rewriting the Act by claiming that Congress actually passed two versions of the Act, and that they can choose the one they claim allows them to impose the CPP. It is clearly unconstitutional for a Federal agency to do such rewriting. A major coal company hired Professor Tribe, known for his very liberal and environmental views, to represent it in the case since they and other coal companies would be the major victims under the CPP. Professor Tribe makes a number of major arguments, including that the view that Congress supposedly passed two versions is wrong and would make no difference even if it were the case, and that the CPP is unconstitutional under the Fifth (due process when government takes life, liberty, and property) and Tenth (reserving power to the people and states) Amendments.
If the DC Circuit rules against the legality of the CPP the last of Obama’s major unconstitutional decrees/regulations will probably go down. But if not, the case will be likely to go to the Supreme Court, presumably after a replacement for Antonin Scalia has been seated. Trump has promised to propose only “conservative” justices, but Clinton is likely to select a “liberal” justice. If the Court finds the CPP unconstitutional, the attempt to reduce CO2 emissions by EPA regulation will probably be at an end since EPA probably did make the best case it could for EPA CO2 reductions through regulations in their CPP. If Trump wins, the case will probably be moot; if Clinton wins she will presumably be the one that decides the future of the long, bitter climate war and effectively rewrites the Constitution by her choice of the ninth justice.
Issues Much Broader than the Wasted Trillions
So the issues are very much broader than the trillions of taxpayer and ratepayer dollars which the states are being forced to devote to the misguided effort to tear down fossil fuel plants and replace them with much more expensive and much less reliable wind and solar plants which will have no measurable impact on climate or anything else other than the profits of the solar/wind industries.
The larger issue is the very survival of the US system of government enshrined in the Constitution. If Obama gets the courts to approve the CPP he will have shown that a President can drastically change a law passed by Congress on the flimsiest of legal excuses, that the Executive Branch can tell the states what laws they must pass in areas of state responsibility (energy production in this case), and that the Fifth Amendment is null and void since property that EPA has forced electric power companies to install to curb real air pollution from power plants can be “taken” without compensation. Obama claims that Congress must accede to his wishes and confirm a ninth Supreme Court justice who presumably would agree to all this.
In other words, Obama is effectively trying to assume dictatorial powers in this and other areas and the courts may allow him to do so in this case. And with the authority to propose Supreme Court justices, the President currently has great influence in determining the makeup of the narrowly divided Supreme Court.
So I ask, if the CPP is approved, why bother having a Congress and the states and even the courts? Why not simplify things and just have a dictatorship with the President as the dictator–something the Constitution was written to avoid? One reason against it is that a President can be wrong, as in this case about climate science, or anything else. The preservation of the Constitution is the underlying issue in the CPP court case. The history of Nazi Germany and other dictatorships shows what can happen if the Executive Branch can dominate the other branches of Government and the states. Future presidents are not likely to ignore the outcome of this case the next time their views are not shared by the states and the other two branches of the Federal Government.
If the CPP is declared legal, the other governmental institutions may survive for a number of years but the ultimate outcome is clear: the Constitution and its carefully crafted separation of powers will become just another piece of paper. The country will actually be run by one individual however he/she wants after being elected. Surely Obama understands this even though he apparently knows little or does not want to know anything about atmospheric science. He still even claims that he believes that increasing the use of “renewables” (better described as “unreliables,” especially after the predicted recent disaster in South Australia where a whole state lost power due to the unreliability of wind generators) will have some measurable and favorable effect on climate, despite all the evidence to the contrary.