Lisa Jackson and the limits of executive power

Jim Huffman Dean Emeritus, Lewis & Clark Law School
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Lisa Jackson’s departure as administrator of the Environmental Protection Administration (EPA) is being lamented by environmentalists and cautiously celebrated by many in business and industry. Environmentalists have only high praise for Jackson’s aggressive efforts to adopt new automobile fuel standards, effectively ban new coal-fired power plants, challenge the safety of fracking in natural gas development, and press for action on climate change. Republicans and many in industry believe that Jackson’s agenda has imposed unreasonable costs on businesses at a time when the economy is struggling.

These differing views on Jackson’s tenure reflect important policy disagreements, and both sides anxiously await President Obama’s decision about a replacement. He may choose to nominate someone similar to Jackson, or he may decide it’s in his political interests to nominate someone less controversial. It would be difficult for him to find anyone more to environmentalists’ liking than Jackson.

Policy disagreements aside, Jackson’s tenure has raised fundamental questions about the separation of powers and the appropriate role of administrative agencies in our constitutional republic. She has been the poster child for Obama’s “we can’t wait” approach to executive governance.

Often stymied by the Republican majority in the House and sometimes by Democrats in the Senate, President Obama has declared on more than one occasion that if Congress will not take action on his legislative proposals, he will just figure out how to implement them by executive order or administrative rule.

Jackson took up the challenge with a vengeance, so much so that the administration has felt it necessary to reject her proposed new rules on ground-level ozone pollution and to slow the rule-making process in other areas. While Jackson contends that the EPA has statutory authority for everything it has done under her leadership, members of Congress have often found themselves in the peculiar position of proposing legislation designed to clarify that the EPA lacks the authority it claims to have. In a democratic republic — particularly one that sprung from a successful revolution against a tyrannical monarch — one would expect the executive to request authority from Congress rather than forcing Congress to deny power to executive agencies.

Jackson claims that her agenda was based on sound science. But Jackson’s EPA has been guilty of making unsupportable scientific claims, most notably with respect to the effects of fracking on groundwater. She has been willing to politicize science in order to justify the agency’s aggressive rule-making. In a number of instances, she has overstated environmental and health hazards in order to make her agency’s actions more politically palatable.

Jackson isn’t the first public official to use proclaimed emergencies as excuses for bending the rule of law. President Truman did it during the Korean War, as has every president since, in one context or another. But the rule of law and constitutional government require that executive agencies be confined to their constitutionally and statutorily granted powers. Jackson has been willing to push the envelope more than most others in an administration that has frequently proclaimed its intention to push the envelope.

It’s not clear why Jackson is resigning now. It may be due to the ongoing investigations into her inappropriate use of a pseudonym in email communications. But whatever her reason for calling it quits and whatever the merits of her environmental policies, her departure will be a good thing for the rule of law. The Senate, which is responsible for confirming EPA administrators, should take care to ensure that Jackson’s replacement understands the limits of executive power.

Jim Huffman is the dean emeritus of Lewis & Clark Law School, the co-founder of Northwest Free Press and a member of the Hoover Institution’s De Nault Task Force on Property Rights, Freedom and Prosperity.