We'll all be talking about the first presidential debate tomorrow, but something else of note will be happening that day: the U.S. Circuit Court of Appeals will be hearing oral arguments on a challenge to President Obama's use of executive power to put forward his climate change agenda.
How important is this? The Wall Street Journal explains:
The case is a watershed for the Constitution’s separation of powers that will echo well beyond this Administration.
The Environmental Protection Agency (EPA) issued regulations that would drastically overhaul energy systems in the states. The EPA's Clean Power Plan would force states to change their electric plants, and other energy intensive businesses. The effect would be felt at the house hold level. Some 28 states sued, and the Supreme Court stayed enforcement.
The EPA wasn't about to submit to the order. Instead the agnecy found an obscure passage in the 1970 Clean Air Act and cited it to reassert authority. Climate change wasn't as much of an issue in 1970 and supporters of the act did not vote on that issue. But the new plan requires states to do the EPA's bidding in the name of climate change.
No matter how heated the debate about climate change is, our constitutional system of government is the real issue here:
In the American system of cooperative federalism, the federal government is supreme and can pre-empt state laws, and it often does. The EPA has the power, for example, to impose efficiency improvements or air-quality standards on existing power plants. But with the CPP it is stretching this power to unprecedented levels and commandeering state resources.
At the heart of cooperative federalism is the right of refusal—states must retain the power to opt out of any federal scheme. If that scheme is grounded in a law passed by Congress, the feds can take over and regulate themselves. In this case the EPA has no authority to do anything of the kind.
Even if the CPP explicitly banned coal-fired power, the EPA cannot mandate that states switch to solar panels and wind turbines. The agency can destroy but it cannot create. Here the EPA is expecting that states will undertake the extensive and costly preparation and regulation to compensate for lost carbon power because they have no other choice to keep the lights on. The EPA is happy to let states take responsibility for problems the EPA is creating.
Why doesn't the left go the legislative route and pass laws that include the provisions of the CPP? Well, because the law probably wouldn't pass and because they have rigged the system to do what they desire without going to those pesky legislatures:
Climate change has become religious faith on the left, and Mr. Obama and Senate Democrats have packed the D.C. Circuit with liberals precisely to bounce cases like this one. The court is hearing West Virginia v. EPA en banc because of its extraordinary importance, and the 10-member panel is stocked with more liberals than conservatives.
But liberal judges who care about the rule of law should also worry about the danger to the constitutional order and democratic consent from the EPA’s breathtaking power grab.
What are the chances of liberal judges doing this?