The Presidency Under Siege
The present Justices are not any friends of presidential power.
As recent scholarship has shown, the Supreme Court has been increasingly aggressive in countering exercises of presidential power. From the environmental perspective, West Virginia v. EPA is essentially the most relevant example of the Court’s efforts to chop the presidency right down to size. True, the Court presupposed to be chastising EPA, a part of the bureaucracy. Yet everyone. including the Justices, knew that the EPA was implementing presidential policy under the close supervision of the White House. This being President’s Day, just a few thoughts about that the Court’s ruling appear to be so as.
I should begin by saying that I don’t view the results of the case as outrageous. Obama’s Clean Power Plan was based on section 111(d) of the Clean Power Plan. The Court called that provision obscure. I can’t contest that view. Here’s an embarrassing confession: Though I had taught environmental law for 25 years at that time, I had never heard of section 111(d) until it was discussed as possible tool to limit carbon emissions. And apparently for good reason, because it rarely been used and only in relatively insignificant cases. Based on a broad interpretation of a single word (“system”) on this fairly obscure provision, EPA proposed regulations quite different than the conventional fare under the statute. None of this proves that EPA was flawed. It’s not hard to see, nonetheless, why some judges would think EPA was stretching the statute further than the language would really support.
The Court’s ruling has been harshly criticized, particularly since it was based on an especially subjective standard — the Court’s view that the regulation raised “problems with vast economic and political significance.” Quite than repeat those criticism, I’d prefer to emphasize three other features of the Court’s opinion that I find highly problematic.
First, the Court’s description of the case was highly unfair. The Court depicted the regulations in query as radical. It didn’t mention that they imposed relatively moderate costs on industry in exchange for much larger advantages, included substantial improvements to public health. In reality, the Court never mentioned the advantages of the regulation in any respect. It also didn’t acknowledge the agency’s point that the tool it was using — shifting power generation from power plant to others — was commonly utilized by the industry and by many states to regulate emissions.
Furthermore, the Court’s biggest objection to the statute appeared to be that it forced the industry to make use of less coal, without noting that EPA was merely accelerating a process that was already under way. The Court also didn’t mention the dilemma that the agency thought it faced: It was charged — by the Supreme Court in an earlier case no less — with regulating carbon emissions, yet the usual regulatory tools seemed more likely to produce only token results for an industry chargeable for much of the issue.
It’s easy to make an motion look radical in the event you only consider the best way it’s characterised by its opponents, which is what the Court did. That’s fair game in politics, but we should always expect higher of judges.
Second, while Justice Kagan accused the Court of giving up on a selected type of statutory interpretation (“textualism”), in one other sense the Court had given up on interpreting the statute in any respect. The Court referred to the case as raising a “major query,” however it’s hard to phrase exactly what query of statutory interpretation it was answer. For instance, it seems quite possible that EPA would have the option to put in writing a regulation exactly like this one, if it were for a minor pollutant of no great economic significance. Even within the case of carbon emissions, the Court never explained what language within the statute it was interpreting, or what specific features of the regulation fell outside the statutory grant of authority.
All we actually know is that, whatever section 111(d) means, this particular regulation goes too far. But “goes too far” isn’t much of a legal standard, and even less so if judges begin with a very one-sided description of what an agency — and its President — have actually done.
We won’t really know the implications of the Court’s ruling until it has been interpreted by future cases. The Court’s opinion may very well be read narrowly by emphasizing a few of the aspects the Court discussed — the obscurity of the statute, the unprecedented nature of the agency’s motion, and apparent congressional rejection of comparable regulations. What we do know straight away is that the Court’s ruling will inhibit strong implementation of a president’s domestic policy agenda. In a world where society seems continually subject to recent challenges, an insistence that the Presidents and their aadministrators follow well-trodden paths could also be a recipe for failure.