- - Tuesday, January 28, 2014

ANALYSIS/OPINION:

President Obama intends to spend the next three years governing unilaterally, by executive order and by regulatory mandate. Outlining his policy agenda recently, he asserted, “I’m going to be working with Congress where I can to accomplish this, but I’m also going to act on my own if Congress is deadlocked. I’ve got a pen to take executive actions where Congress won’t, and I’ve got a telephone to rally folks around the country to this mission.”

Yes, the president has a pen and a phone. But the Constitution has checks and balances. And so, while the president believes he should be free to impose his agenda, the Constitution constrains him by Congress, the courts and the states.

One example of the president’s overreach is his climate change agenda. After failing to get the House and Senate to pass comprehensive legislation in 2009, when both houses were controlled by Democratic majorities, Mr. Obama fell back on a narrower executive-power approach under the existing Clean Air Act. EPA promulgated rules attempting to regulate greenhouse gas emissions from automobiles and stationary sources, and the agency plans to strictly require power plants and manufacturers to request EPA permits before building facilities.

In all of this, the president and EPA act as if the Supreme Court had not already weighed in on aspects of the Clean Air Act. Indeed, the Supreme Court already explained in 2011 that it would be ludicrous to impose ex-ante permit requirements on greenhouse gas emissions. “Of necessity, Congress selects different regulatory regimes to address different problems. Congress could hardly preemptively prohibit every discharge of carbon dioxide unless covered by a permit. After all, we each emit carbon dioxide merely by breathing.” Lest one ascribe the high court’s common-sense analysis to “right-wing activist judges,” note that Justice Ruth Bader Ginsburg wrote that opinion, for a unanimous court.

The EPA’s refusal to heed the court’s warning will be tested next month in another Supreme Court case, Utility Air Regulatory Group v. EPA, challenging the lawfulness of the EPA’s greenhouse gas permitting regulations. But that is not the only new Supreme Court case involving President Obama’s refusal to take no for an answer. In NLRB v. Noel Canning, argued in January, the Obama administration contended that the president can appoint officers without Senate confirmation, even when the Senate does not consider itself to be in recess, simply because the president wants to staff his administrative agencies regardless of the lack of Senate advice and consent.

Even Justice Elena Kagan — Mr. Obama’s own appointee — was taken aback by this assertion of power. She noted that Mr. Obama was attempting to use that power not to fill vacancies when the Senate was unavailable to vote, but rather to bypass “a Congress that simply does not want to approve appointments that the president thinks ought to be approved.”

Sen. Ted Cruz, Texas Republican, cataloged several other examples of the court’s unanimous rejection of the administration’s aggressive assertions of executive or federal power, in a 2013 report titled “The Legal Limit.”

In coming to these extreme positions, Mr. Obama has undergone a major change. In his 2006 pre-campaign book, “The Audacity of Hope,” Sen. Obama dedicated many pages to criticizing executive unilateralism in service of ideological partisanship. “Genuine bipartisanship,” he wrote, “assumes an honest process of give-and-take,” which “in turn assumes that the majority will be constrained — by an exacting press corps and ultimately an informed electorate — to negotiate in good faith.” The Constitution’s “elaborate machinery” of checks and balances, he continued, is “designed to force us into a conversation, a ‘deliberative democracy’ in which all citizens are required to engage in a process of testing their ideas against an external reality, persuading others of their point of view, and building shifting alliances of consent.”

“Because power in our government is so diffuse,” he concluded in 2006, “the process of making law in America compels us to entertain the possibility that we are not always right and to sometimes change our minds.” One wishes that the Obama administration itself would entertain such doubts himself, from time to time. It falls now to the Supreme Court, Congress, the states, the press and all Americans to provide a reminder.

C. Boyden Gray has served as White House counsel, U.S. ambassador to the European Union, special envoy for Eurasian energy and special envoy for European Union affairs. “Arbitrary and Capricious” runs monthly. His law firm submitted amicus briefs on behalf of clients in the Utility Air Regulatory Group and the Noel Canning cases described above.

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