In the academic world, originalism has become the theory of constitutional interpretation to beat.
There is, I think, quite a bit to learn from the D.C. Circuit’s greenhouse gas cases, reviewed in yesterday’s post. Let’s start with a dorky but telling AdLaw point and move on to more cosmic themes:
- GHG regulation in strict compliance with the CAA would mean shutting down the country. To finagle that problem, EPA now routinely invokes two canons—“one-step-at-a-time,” and “absurdity”—that are mutually exclusive. If the statutory shut-down is absurd, why take even the first step? If it isn’t, why not follow the statutory commands (instead of re-writing the statute)? No prob, says EPA: it makes perfect sense to move step by step toward an insane result. In my view, a fine description of the entire regulatory state; on EPA’s account, the logic of Mass v. EPA and Coalition. To borrow a movie line, EPA has a point. A stupid point, but a point.
- There’s been a lot of huffing—in connection with judicial nominations and appointments—about the D.C. Circuit as the last line of defense against the Obama Administration’s imperial tendencies (or a roadblock to its urgent initiatives, depending on who’s talking). The GHG cases don’t quite fit that account, do they? It’s pedal to the metal.
- Conservatives cherish the image of a headless, unaccountable fourth branch of government. But that’s not what’s happening here. For starters, EPA’s climate initiatives are engineered and supervised by the White House, at the President’s feet (see here). That’s presidential administration pure and the “unitary executive” in action. If memory serves we used to be for that. Are we still—or would we rather have Cass Sunstein’s AdLaw of “reasoned deliberation”?
- · Somewhat at variance with the preceding point, one could argue that the Prez is simply jumping at the head of a climate parade that would march ahead without him because that’s the way the courts have construed the CAA. Under Mass and Coalition, once you feed some chemical into one of its “endangerment” provisions, the act is a machine that will go by itself: EPA must regulate. If EPA delays or “tailors” to avoid “absurd results,” it gets sued. Adherence to the law, and all that. Under the D.C. Circuit’s brilliant standing jurisprudence, regulated firms can’t sue: their injury comes from the “automatic operation” of the CAA, not from anything EPA did. In contrast, pro-regulatory enviros can sue over delays and exemptions. They can choose to go ahead or hold off (for example, if they fear a blow-back from Congress, or if EPA asks politely enough). What we have here is government rulemaking on demand.
Only two institutions are capable of arresting the momentum: Congress, and the Supreme Court. Will they?
To quote Judge Kavanaugh: the GHG CAA “is a far cry from what Congress intended or enacted.” The response is, who gives a rip? Congress won’t fix immigration laws that don’t provide for the administration’s manufactured DREAM Act, or an Affordable Care Act shot through with improvised exemptions and extensions. Charles Krauthammer, Nick Rosenkranz, and others have rightly criticized the administration’s lawlessness at multiple fronts. But the thing is, Congress is supposed to bite back. It won’t do so even when the administration’s conduct is flagrantly illegal. Why should it, how could it, do so when, as here, EPA simply follows the judiciary’s commands?
The fecklessness of Congress may be the central pathology of the contemporary administrative state. Before you jump to the “remedy” of getting Congress back into the game, though, be careful what you wish for—a Planet Protection and Affordable Climate Act?
As for the Court, the pending cert petitions in Coalition for Responsible Regulation provide an opportunity to stop the run-away GHG train wreck in its tracks. But the Court would have to realize that this is the last chance. If the D.C. Circuit’s decision stands, the regulatory dominoes will keep tumbling. Also, there won’t be another industry coalition for responsible regulation or for anything else: it’ll be every firm and industry for itself.
The Court would also have to renounce, or at any rate depart from, its modern day tendency to play Jesus Christ in reverse—to claim a near-monopoly on purity and good intentions; to heap all the sins onto the institutions that must put those abstractions into practice; and to wash its hands of the whole affair when it gets messy. School busing, racial quotas, crime, etc: it’s always someone else’s fault. In extremis, the Court can always say and has often said, “we never meant that.” Sleazy and dishonest? Yup: “sorry” would be better. But they never say that. So here’s to hoping that come October, the justices will grant cert in Coalitions—and say that Mass v. EPA didn’t mean what it seems to say.