More Garbage Conservative Constitutional Theory
James Joyner is one of the few conservatives who actually try to come up with intellectually coherent policy positions, and he often does. So maybe we should give him a pass when he blows it.
But wow, is this one a doozy.
The EPA has decided to begin to issue greenhouse gas regulations, as it is entitled to do both by the plain meaning of the Clean Air Act and by Supreme Court precedent directly on point.
Yet somehow Joyner insists that this is ruling by “executive fiat,” suggesting that this is “unilateral” action outside constitutional scope.
Maybe we should go over this again, very slowly:
1) The Clean Air Act, a highly detailed statute, explicitly gives EPA the authority to write regulations to control greenhouse gas emissions, and in fact mandates it if the agency determines that such emissions endanger human health (which on any fair reading of the science, it must).
2) Taking its direction from Congress, EPA has decided to follow the statute.
3) When the Bush EPA said that it lacked this authority, the Supreme Court told it that it did.
In what universe does this equal “unilateral action” or “executive fiat”? The AP headline writer that suggested it should be given a good talking to.
And Conor Friedersdorf (subbing for Sullivan), who approvingly linked to the Joyner piece, should take a basic civics class. Friedersdorf writes: “Regardless of how Congress acts, I’d prefer if for that body to determine how the US responds to the real phenomenon of climate change caused by greenhouse gasses [sic].” Uh, Conor: they have. It’s called the Clean Air Act.
There are lots of places to worry about unilateral executive action. This isn’t even close to one of them.
Irony alert: in this case, conservatives like Friedersdorf and Joyner claim to want more legislative action. In the case of health care reform, most conservatives complained about a “1,000 page bill.” Funny how that works.
Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic – Land Use, the Environment and Loc…READ more