The EPA’s “Clean Power Plan”: Executive Power Unhinged

Samantha Dravis President, Rule of Law Defense Fund
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On Tuesday, an en banc panel of the United States Court of Appeals for the D.C. Circuit will hear argument in West Virginia v. EPA, a challenge brought by twenty-seven states and industry groups to the legality of President Obama’s so-called “Clean Power Plan.” The Plan is an EPA rule designed to accomplish the Administration’s goal of remaking the Nation’s power grid by forcing an abrupt and costly shift to renewable energy generation.  The result for Americans will be higher energy costs, yet negligible environmental improvements.

Those who support the Clean Power Plan are fond of accusing the challengers of the Plan of being opposed to “clean power.” They miss the point entirely. The suing States are unequivocally in favor of affordable, reliable, and clean energy. That is why those States have led an extraordinary push to diversify their energy economies to include wind and other renewables, and to lead the fracking revolution that has made clean burning natural gas abundantly available, resulting in the greatest reduction in carbon emissions from energy generation that our Nation has ever seen.

But the states understand that these goals must be pursued lawfully. As the President’s constitutional law professor Laurence Tribe, has put it, “burning the Constitution should not become part of our national energy policy.”

Another President might feel rebuked by such stinging criticism from a friend and legal mentor. But this President, unable to convince the people’s representatives in Congress to enact his policies, has demonstrated an alarming habit of bypassing Congress, and in turn, trampling the Constitution’s horizontal and vertical separations of power — separations of power designed to prevent the sort of despotic monarchism that prompted the American Revolution. And that is exactly what he has done with the Clean Power Plan, said Tribe, “attempting an unconstitutional trifecta: usurping the prerogatives of the States, Congress and the Federal Courts all at once.”

In normal times it would be telling that not even one of the staunchest supporters of the Obama Administration’s policies can turn a blind eye to the Clean Power Plan’s audacious overreach. But these are not normal times. Our national constitutional conscience has never been more degraded. If you have any doubt on this score, recall recent debates about any one of the President’s executive actions, whether immigration, marijuana, or the rewriting of the Affordable Care Act. The legality of these executive actions is missing from the analysis.  Debates these days are entirely binary; you are either in favor of the policy, or not. The legality of the means used to effectuate the policy ends is of no consequence. It wasn’t always this way. We were made great by our unwavering adherence to our Constitution and an unflinching belief that governmental means stand on equal footing with governmental ends.

This will be the legacy of the Obama Presidency – claiming unilateral power to ignore laws passed by Congress in favor of what his view of the law ought to be.   Even when courts have declared his actions unlawful, he has hardly flinched, accusing those who disagree with him of “hypocrisy” and vowing to continue his policies.  These examples abound. The last eight years have been a case study in executive power unleashed and unhinged, and the Clean Power Plan is no different. This is the legacy of the Obama Presidency; no single person will be able to claim a greater negative impact on the way our citizens value the Constitution’s checks on executive power. And with Congress unable to check the President, it has fallen to the States to defend the Constitution through legal challenges.

Today, one of those conversations about the Constitution will take place in the D.C. Circuit Court of Appeals. Only time will tell whether the President’s appointees on that court will follow the lead of the Supreme Court and order the EPA to stop implementation of this unlawful rule, or if they will instead let policy preferences of the Executive render the Constitution an afterthought.

Samantha Dravis is President of the Rule of Law Defense Fund.   She previously served as an attorney on Mitt Romney’s 2012 Presidential campaign, and as Associate Director of Political Affairs in the White House under George W. Bush.