As this report goes to press, President Obama is expected to make a significant statement concerning his proposal to reduce carbon emissions from America’s 600 coal-based energy facilities.
Even before the details are released, significant controversy has occurred based on several key points: whether the president has the authority to enact sweeping and substantive measures without the consent of Congress; whether the proposals will be too costly for the depressed U.S. economy (which shrunk 1% during the first quarter of 2014); whether reducing American energy output will place both the U.S. and our allies in a weakened position; and finally, whether the science upon which the theory of human induced climate change rests is, in fact, accurate.
This week, The NEW YORK ANALYSIS OF POLICY & GOVERNMENT briefly examines the President’s promised use of Executive Orders for the Environmental program. The regulations are expected to be significant, forcing American power plants to cut carbon emissions, and imposing vast costs on the U.S. economy. The President believes that he can engage in actions that will have the full force of law without the consent of Congress.
Weakening the President’s position is his prior failure to guide proposed environmental laws through Congress in his first term. Critics can maintain that the White House at first attempted to comply with the appropriate Constitutional methods, but resorted to an unconstitutional utilization of Executive Orders when he didn’t succeed.
U.S. Constitution: Article 1, Section 1: All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
President Obama, 2013: Where Congress is unwilling to act, I will take whatever administrative steps that I can in order to do right by the American people.
EXECUTIVE ORDERS
Article II, Section I of the Constitution vests executive power in the President. While there is no mention in the Constitution of executive orders, as chief executive, the President of the United States clearly requires the unilateral ability to take certain actions to fulfill his duties. The President’s role in seeing that federal laws are executed requires no consultation with the other two branches of government. It would be absurd to expect that every deployment of troops, every regular or normal daily operation of federal agencies, and every other normal administrative process be subjected to direct Congressional oversight.
There have been periods of history when Congress has been relatively lenient in its oversight of the President’s use—or abuse—of executive orders. During the establishment of Franklin D. Roosevelt’s New Deal during the Great Depression, Humorist Will Rogers remarked that “that Congress doesn’t make laws anymore, they just wave at the bills as they go by.”
The online law journal thelegality.com notes that “While the mandate of Article II seems broad, it also limits the president’s power to only directing the actions of the executive branch. For example, [former] President Bush’s E.O. 13435 (regarding the limited use of stem cells in research) have a limited effect because they only reach government agencies…The Executive is not a legislator…He is not above the law.”
Although Congress tends not to challenge most executive orders, it has met with success on some occasions when doing so. Several executive orders issued by President Clinton were struck down by the Court in reaction to Congressional objections.
Justice Hugo Black, in the case Youngstown Sheet & Tube Co. v. Sawyer wrote that an executive order (1) “must stem either from an act of Congress or from the Constitution itself” and (2) an executive order is on dubious ground if it’s “incompatible with the express or implied will of Congress.”
In restricting then-President Truman’s ability to engage in actions which had the impact of legislation rather than mere administrative action, the Court held that an Executive Order not authorized by the Constitution or laws of the United States, cannot stand, and exercises of Presidential authority which have the effect of lawmaking cannot stand because the Constitution vests such power in Congress alone.
There is a keen difference between administrative actions in fulfillment of the law and actually taking steps that affect the law itself, or, indeed, have the same impact as law. This controversy has been evident in the White House’s actions concerning the Affordable Health Care Act (Obamacare.) The President’s unilateral action in deciding which portions of the law to enforce and which to ignore until sometime in the future when it is more politically expedient to do so has merited extensive and appropriate criticism.
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Writing in Forbes earlier this year, James Powell noted that:
“Apparently President Obama has become convinced that he can make magic with that pen he keeps talking about, the one he plans to use for signing executive orders to revive his beleaguered presidency. Executive orders are irresistible, because a president doesn’t have to propose anything, debate the issues, endure hearings or solicit votes. An executive order can be issued in a few minutes — behind closed doors and away from bright lights… Many executive orders are in a twilight zone of dubious constitutional legitimacy if not open defiance of the Constitution, especially when they amount to lawmaking without congressional approval…”
John Malcolm, director of the Edwin Meese III Center for Legal and Judicial Studies, has written in a Heritage publication that “President Obama has shown no qualms about taking unilateral actions that bypass Congress and ignore important separation of powers principles that are an essential safeguard of our liberty.”
Joel Pollack, writing in Breitbart, provides three criticisms of President Obama’s use of executive orders:
“The first is that Obama is using executive orders and actions to alter his own legislation. …The second way in which Obama’s abuse of executive power is different is that he has done it to prevent the legislature from acting…the president issued his “Dream Act by fiat” in 2012 not just because Congress wouldn’t pass his version of immigration reform, but to outflank Sen. Marco Rubio (R-FL), who was preparing his own version, embarrassing Obama among Latino voters…The third way in which Obama’s behavior is unusual is that he commands sweeping executive power on some issues while arguing, on other issues, that he has no power to act… There is no constitutional doctrine behind the president’s executive orders, actions, and omissions…”
Attorney Gary Wickert, examined some of President’s Obama’s executive orders:
“In the spring of 2012, President Obama issued an aggressive string of executive orders to combat what he viewed as hopelessly-deadlocked Congress. Some of his more controversial, and arguably unconstitutional executive orders are as follows:Directed the Justice Department to stop defending the Defense of Marriage Act;Gave states waivers from federal mandates if they agreed to education overhauls;Changed significant provisions of and the timing of Obamacare;Declared an anti-gay-rights law unconstitutional;Reshaped immigration policy by ordering the federal government to halt deportation of certain illegal immigrants.
Each unilateral action by the president substituted for a failed legislative proposal. ‘I’ve got a pen, and I’ve got a phone,’ he said. However, under the Constitution, that is not the way things are supposed to work. “
The President’s use of his authority to implement environmental measures has been a particular source of criticism. The Congressional newspaper The Hill noted that Attorneys general in 17 states have contended that “the Environmental Protection Agency has overreached in pursuit of President Obama’s plan to counter the effects of climate change via federal regulation.” They maintain that the “EPA, if unchecked, will continue to implement regulations which far exceed its statutory authority to the detriment of the States, in whom Congress has vested authority under the Clean Air Act, and whose citizenry and industries will ultimately pay the price of these costly and ineffective regulations…”
CONCLUSION
The dueling sides for and against the President’s carbon emissions plan will disagree on the specific merits of the proposal. The far more important debate, however, will have nothing to do with the details of this program and everything to do with whether the United States will continue to be governed by Constitutional provisions clearly calling for a series of checks and balances on the authority of the chief executive.