CLIMATE COUP

Cato Institute

Contents

Chapter One

Roger Pilon and Evan Turgeon

Roger Pilon and Evan Turgeon show how, contrary to the nation's first principles and the Constitution's plan for limited government, the modern "executive state" emerged over the 20th century such that the executive branch today has all the power it needs to implement a far-reaching global warming agenda—quite without any specific authorization from Congress.

Early in the century, Progressives laid the intellectual foundations for the executive state. Then, during the New Deal, Congress and the president brought it into being, aided by a Court that first reinterpreted the Constitution's limits on Congress's powers and then sanctioned Congress's delegation of those powers to the executive and to burgeoning executive branch agencies. In fits and starts, that process has continued to this day, with the Court's 2007 decision in Massachusetts v. EPA being the latest example of how the executive state has come to assume all but plenary power—here, through claims about global warming—over almost every area of life.

The result is rule by unelected, largely unaccountable bureaucratic "experts" making decisions that in the end are often value-laden and political. This pattern will not change, Pilon and Turgeon conclude, until Congress reclaims the authority that it alone was granted under the Constitution.

The chapters that follow in this volume will show that in recent years, "global warming," however uncertain its scientific foundations or practical implications, has permeated and often distorted virtually every area of life and public policy in America, from science to business, education, trade—even foreign policy. Law, and American constitutional law, in particular, is no exception. But long before global warming's massive regulatory agenda was upon us, more basic distortions afflicted American law, and those today are fertile ground for turning the global warming agenda into binding public policy.

More precisely, the "executive state" that emerged from the Progressive Era, as institutionalized by the New Deal Supreme Court and expanded through modern administrative law, affords the president today all the power he needs to execute global warming's agenda through his domestic and foreign affairs powers—powers so far-reaching that they would shock the Constitution's Framers, who thought they had checked executive excesses through the separation of powers. James Madison, whose plan for limited government the Constitution reflects, wrote in Federalist 45 that the powers of the new government would be "few and defined," yet today the executive branch alone, in the name of addressing global warming, is able to regulate virtually every human activity in this nation. Indeed, shortly before President Obama arrived at the December 2009 "Climate Summit" in Copenhagen, the Climate Law Institute's Center for Biological Diversity released a study, the title of which captures today's legal world perfectly: "Yes, He Can: President Obama's Power to Make an International Climate Commitment without Waiting for Congress."

This chapter explains how we got to this state of affairs. We will begin by looking briefly at the original constitutional design, as "completed" by the Civil War Amendments, then at the Progressive Era and the New Deal "constitutional revolution" that followed, resulting in the demise of both the doctrine of enumerated powers, the very centerpiece of the Constitution, and the nondelegation doctrine, under which "all legislative power" is supposed to be vested in the Congress. After those principles were abandoned, owing to political forces and judicial deference, the courts themselves came to play handmaiden to the aggrandizement of executive power, as we will see next.

Against that background of general legal developments, we will then turn to the kinds of environmental issues that arose with the Industrial Revolution, which pose special but not unsolvable problems for our system of government. Those environmental issues are best addressed, however, not by abandoning the Constitution's basic principles but by adhering to them. To illustrate how we have not done that, and how the modern executive state has come to rule over environmental matters, we will look finally at several recent statutory schemes that have delegated so much power to the executive branch as well as the judicial decisions that have sanctioned those delegations, often in the name of science trumping politics. Yet fundamentally, the issues are only partly scientific. In fact, in the end they are basically evaluative, involving balancing competing values. Thus, under our system of constitutional government, they should be decided not by "experts" but by the American people through the process the Constitution prescribes, or so we will conclude.

The Executive State Emerges

The Original Design, as "Completed" by the Civil War Amendments

The Constitution, written in the shadow of the Declaration of Independence, was designed to secure individual liberty and responsibility through limited government. To that end, it established a government of limited powers, leaving most power with the states or, even more, with the people, to be exercised in their private capacities. The Tenth Amendment, the last documentary evidence from the founding period, makes that clear, expressly. But so does the Constitution's Preamble, which shows that all power rests originally with the people, only some of which they give up to government for greater convenience and security. In the very first sentence of Article I, we see that "All legislative Powers herein granted shall be vested in a Congress ..." (emphasis added). By implication, not all power was "herein granted." Article I, Section 8, enumerates Congress's main legislative powers, 18 in number—hence the doctrine of enumerated powers. Article II vests the executive power in the president, which in domestic affairs is mainly the power to "take Care that the Laws be faithfully executed." Article III vests the judicial power in the Supreme Court and in such inferior courts as Congress establishes, the power to ensure that constitutional constraints are respected. Thus the separation of powers, each branch defined functionally.

The Bill of Rights was added two years later, for extra precaution. It limited more precisely the way in which the federal government might exercise its enumerated powers. But the Bill of Rights applied originally only against the federal government, reflecting the Framers' compromise over slavery, reached to ensure union. Their hope that slavery would wither away over time did not materialize. Instead, the Civil War, followed by the Civil War Amendments, ended slavery. Those amendments "completed" the Constitution by incorporating at last the grand principles of the Declaration of Independence.

Progressivism and Planning

Practice has never matched promise, of course: there has never been a "golden age" of liberty and limited government—witness, among much else, the rise of Jim Crow in the South shortly after the Civil War Amendments were ratified. Nevertheless, for our first 150 years as a nation, we lived more or less under limited government. The great change came, as noted above, with the rise of the Progressive Era, the ideas of which the New Deal Court institutionalized some 40 years later. American elites, influenced by the rise of science and of the social sciences in particular, grew enamored with "social engineering." Drawing from German ideas about "good government"—Bismarck's social security scheme, for example—and British utilitarianism—the idea that policy and law should secure not our unalienable rights but the greatest good for the greatest number—those elites sought to "plan" all manner of human activities, mostly through government agencies staffed by "experts."

Standing athwart that agenda, of course, was a Constitution designed for limited government, and the willingness of early 20th-century courts to uphold it, which they did—not entirely but in large measure. Things came to a head during the New Deal, however, especially after the landslide election of 1936, when President Franklin D. Roosevelt threatened to pack an uncooperative Supreme Court with six new members. The reaction in the nation was swift and intense: not even an overwhelmingly Democratic Congress would go along with the scheme. But the Court got the message: it began rewriting the Constitution without benefit of constitutional amendment.

Expanding Power, Contracting Rights

The Court did so in three main steps. First, in two decisions in 1937, the Court eviscerated the Constitution's legitimating principle and main restraint on overweening government, the doctrine of enumerated powers. It held that under the so-called general welfare clause, a phrase in Congress's power to tax, Congress could tax and spend for the general welfare quite apart from any authority to do so under one of its enumerated powers or ends. Thus was born the modern redistributive state. And it held that under the commerce clause, which was written to enable Congress to ensure free commerce among the states in light of state protectionist measures that had arisen under the Articles of Confederation, Congress had the power to regulate, for any reason, anything that "affected" interstate commerce, which of course is anything and everything. Thus was born the modern regulatory state.

Second, because individual rights could still be invoked to check that expanded federal power, as well as state power, the Court in 1938 effectively bifurcated the Bill of Rights, distinguishing "fundamental" from "nonfundamental" rights. If a law implicated "fundamental" rights like speech, voting, and, later, certain "personal" rights, the Court would apply "strict scrutiny" and most often find the law unconstitutional. By contrast, if a law implicated "nonfundamental" rights like property and contract, rights we exercise in "ordinary commercial transactions," it need pass only the "rational basis" test: as long as there was some conceivable basis for the law, it would be found constitutional.

Delegation and the Modern Administrative State

With those decisions, the Court institutionalized an approach to constitutional adjudication that in truth had been growing for a decade or two, "constitutionalizing" in the process the Progressive vision of active government—the very antithesis of the Framers' vision. But one step remained, which will bring us to our underlying subject, the emergence of the executive state. As legislative schemes were enacted, it became clear, of course, that Congress (or state legislatures, for that matter) could not manage all that they had brought forth. Thus was born the modern administrative state. But the problem here, once again, was with that troublesome Constitution, for recall that the very first sentence of Article I says that "All legislative Powers herein granted shall be vested in a Congress." Not only were many of the powers Congress was now exercising never "herein granted," but even those that were granted were being delegated increasingly to the executive branch or to "independent agencies." In fact, in the new executive state, administrative agencies—headed by members of the executive branch or by independent officials but filled with career and hence unaccountable civil servants—were performing legislative, executive, and even judicial functions, affecting virtually every aspect of life, from the jobs we have, to the food we eat, to the air we breathe. Powers the Framers had separated were now conjoined in one branch of government.

The demise of the nondelegation doctrine is best understood in the light cast by the doctrine of enumerated powers, which says, again, that Congress has only those legislative powers that the people have granted it. Not only are all those powers vested in Congress, but among them there is no power to delegate any of them in turn to another branch of government. Any such delegation is thus ultra vires. The Supreme Court recognized that principle early on when Chief Justice Marshall wrote in 1825, "It will not be contended that Congress can delegate ... powers which are strictly and exclusively legislative." Unfortunately, Marshall gave no further guidance on the meaning or scope of "strictly and exclusively legislative." But he added that "the line has not been exactly drawn which separates those important subjects which must be entirely regulated by the legislature itself from those of less interest in which a general provision may be made and power given to those who are to act under such general provisions to fill up the details." Thus, he laid a foundation for what the Court would later call the "intelligible principle" standard: a delegation is constitutional, the Court said in 1928, if Congress lays down "by legislative act an intelligible principle to which the person or body authorized ... is directed to conform."

Judicial Deference

That standard, under which the Court in two separate decisions in 1935 found provisions of Roosevelt's National Industrial Recovery Act to be unconstitutional, continues to guide courts today. But so deferential to the political branches has the Court been since the "constitutional revolution" of 1937 that the most amorphous congressional directives satisfy the "intelligible principle" standard—directives that regulations must serve "the public interest," be "just and reasonable," check "unfair profits," and so forth. In fact, the Court has been so deferential that "not a single post-New Deal statutory program has been invalidated as an unconstitutional delegation of legislative power to the executive branch."

Indeed, not only has the Court deferred completely to Congress when Congress has delegated its legislative powers to executive agencies, but more often than not, the Court has deferred to those very agencies in their interpretations of Congress's broad statutory delegations. Although the record on this is mixed and often seemingly arbitrary, under the Court's main standard today, known as "Chevron deference," the Court in 1984 set forth a two-step process for reviewing agency interpretations of statutes. First, the Court asks "whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter." But second, "if the statute is silent or ambiguous with respect to the specific issue," which is often the case, the Court asks "whether the agency's answer is based on a permissible construction of the statute. If Congress has explicitly left a gap for the agency to fill"—note well what follows—"there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute" (emphasis added). Finally, the Court concluded that if a legislative delegation is implicit, "a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency."

In sum, the New Deal Court's evisceration of the doctrine of enumerated powers and bifurcation of the Bill of Rights vastly expanded Congress's powers and contracted individual rights. But as those powers grew and federal programs multiplied, the Court abandoned the nondelegation doctrine, allowing Congress to delegate ever more power to executive branch agencies. Finally, having deferred to Congress on both counts, the Court most often deferred to the executive branch as well, granting it wide discretion to interpret statutes and enact "legislative regulations." Thus did the modern expansive and powerful executive state come into being.

Environmentalism under the Constitution

Environmentalism and Private Law

Environmental issues were not unknown at the Founding. Isolated individuals and human communities alike use natural resources, changing the natural environment as they do. It may sound heretical today to say it, but nature and the environment have no rights: people have rights—uniquely human constructs designed to order relationships through enforceable correlative obligations. They have rights to live and to use natural resources in the process, provided only that they take nothing that belongs to others. Thus, the law of property—broadly understood as "lives, liberties, and estates"—underpins and defines those relationships. And the Latin maxim sic utere tuo, ut alienum non laedas (use your own property so as not to harm another's) served early in our history, and continues to serve today, to guide common-law courts as they adjudicated what we would now call environmental complaints.

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