Posted by: bmeverett | May 10, 2009

Climate Change and the Constitution

The United States Constitution, the foundation of our democracy, has been taking a beating the last 80 years or so. The basic principle of the Constitution is simple: government attracts people who crave power, so we need to set some rules regarding what they can and cannot do. The first embodiment of this principle is the delimitation of powers: the federal government can do some things but not others. The second principle is the separation of powers: each branch of government has certain powers but not others.
Several of the limitations on federal government power have essentially disappeared. Article I, Section 8 of the Constitution allows the feds “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Commerce within states was left to the states. This limitation effectively disappeared during the New Deal, when FDR found it an inconvenient obstacle to his plans. Today, there is virtually no distinction between intrastate and interstate commerce, since anything that happens within one state has been construed by the courts to possibly impact the rest of us. One limit to power gone. Done with.
The second limit to disappear is the takings clause (part of the Fifth Amendment) which states that “Private property shall not be taken for a public use, without just compensation.” At the time the Constitution was ratified, everyone understood what “public purpose” meant – roads, bridges, forts, canals, etc. In the 2005 Kehoe Case, the Supreme Court decided that the City of New London could take people’s homes and then sell the property to commercial developers just to gain tax revenue. The concept of public purpose now has no meaning. Anything government wants to do is a legitimate public purpose. I expect that the other half of the takings clause – compensation – will be tested as well as the Obama Administration undertakes massive income distribution, which is by definition the taking of property with no compensation.
Other limitations are threatened as well. Second amendment rights (the right to bear arms) have been under attack for decades, although it seems to be holding at the moment. First amendment rights of free speech are under indirect assault from campaign finance reform, and under direct assault on college campuses around the nation through official “speech codes.”
The separation of powers is still intact, but barely. Both republicans and democrats seem to believe in an extremely powerful executive, provided the President is doing the right things. When President Bush asserted executive powers to fight terrorism, the democrats rebelled, at least when it became popular to do so, claiming these powers were extra-constitutional. Once the recession hit, however, democrats quickly signed on to the TARP program – a grant of $750 billion to the Executive to do pretty much what it wanted. Originally intended to relieve bank balance sheets of toxic assets (hence Toxic Asset Relief Program), the money has been used to buy first preferred stock (which is essentially a bond) but then common stock (which is ownership) of major banks. Congress has said not a word. This disaster was followed by the trillion-dollar Stimulus Plan which gives the President authority to give money to pretty much anyone he wants. Republicans don’t like the Stimulus Plan, claiming it gives too much power to the Executive, at least to an Executive from the democratic party.
Article I, Section 1 of the Constitution states that “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.” Constitutional scholars have inferred from this clause the “non-delegation principle” – that Congress cannot delegate legislative powers to the executive branch. This principle too is teetering on the brink.
The United States and other industrial countries have been fighting pollution seriously for at least 60 years with reasonable success and without inflicting any real damage on the Constitution. Eliminating leaded fuel, reducing the sulfur content of petroleum products, the mandating of catalytic converters on cars, removal of sulfur and soot from coal-fired power plants and a number of other steps have led to significant improvements in air and water quality over the last 30 years. In each case, however, a specific pollutant was linked to a specific public health impact, and there is general agreement that the benefits of these regulations outweigh their costs.
Lurking in the background, however, has been a massive time bomb. Section 108 of The Clean Air Act of 1970 requires the federal government to regulate air pollutants that “may reasonably be anticipated to endanger public health or welfare.” Much may hinge on the meaning of “reasonably.” Furthermore, in the Lead Industries case of 1980, the Supreme Court found that the Clean Air Act precludes the use of cost-benefit analysis in determining regulations under the Act. Tick. Tick. Tick.
Until this year, EPA regulators under both republican and democratic administrations sealed this time bomb in the basement and took reasonable steps not to set it off. The “criteria pollutants” regulated so far include carbon monoxide, sulfur dioxide, nitrogen dioxide, ozone, particulates (soot) and lead. The public health impacts of all these substances are well understood, and, although arguments continue about the details, no administration has adopted regulations requiring costs massively out of line with the benefits. The Clean Air Act has worked fine as long as grown-ups were in charge.
Enter climate change advocates on the coat-tails of President Obama. Most scientists agree that increasing atmospheric concentration of carbon dioxide and other “greenhouse gases” can contribute to increased temperatures, but nobody agrees how much or over what time frame. Despite Al Gore’s screaming insistence, we do not understand very well the nature of climate change, its causes or its impacts. What we do know is that the costs of massive reductions in carbon emissions – of the magnitude required to have a meaningful impact on the atmosphere – will be huge. We also know that the growing output of carbon dioxide by China, India and other developing countries cannot be offset by minor reductions in the US.
The Obama Administration wants to institute a “cap-and-trade” system to reduce carbon emissions slightly at great cost ($650 billion over 8 years). Cynics would see this primarily as an attempt to increase government revenues, but let’s set that issue aside. As Congress, including democrats, begin to balk at the costs of this program, Lisa Jackson, Obama’s EPA Director, has brought the time-bomb out of the basement and threatened to set it off if Congress doesn’t do what the President wants. Perhaps this threat is just bluff, but we need to take this possibility seriously. By declaring carbon dioxide to be a pollutant, the administration would be claiming that every aspect of our lives: heating and lighting our homes, growing and storing our food, moving people and freight around, using land for any purpose at all, producing electricity and manufacturing anything would be subject to direct government control because these activities might (under a host of rather dubious assumptions) imperil public health at some time in the future. If this bomb goes off, the Constitution would be shredded along with out living standard.
This interpretation of the Clean Air Act would overturn the “non-delegation principle” completely. There would then be no limitations whatsoever on what the executive branch could do. It would amount to a complete delegation of authority by the Congress to the President and by the President to EPA bureaucrats. If the Supreme Court upholds this interpretation of the Clean Air Act and Congress doesn’t fix it, they both might as well go home permanently. There would be nothing left for them to do.


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