American Elephants

“An Illegal Power Grab” by the EPA Says Obama’s Former Professor by The Elephant's Child

Laurence Tribe is a famed liberal professor of Constitutional Law at Harvard Law School, and Barack Obama, in his time at Harvard Law, served as Professor Tribe’s research assistant. Tribe was a legal advisor for Obama’s campaign. This week, Professor Tribe delivered a sharp constitutional rebuke to the Obama Administration that is notable coming from a pillar of the liberal law professoriate.

Professor Tribe criticized the “executive overreach” of the Environmental Protection Agency’s proposed rule to regulate carbon emissions from existing power plants. In joint comments with Peabody Coal Company, the world’s largest coal company, Mr. Tribe accused the EPA of the abuse of statutory law, violation of the Constitution’s Article I, Article II, the separation of powers, the Tenth Amendment, the Fifth Amendment, and generally displaying contempt for the law.

The EPA has claimed authority not offered by the Clean Air Act to impose its climate crackdown on existing power plants by essentially eradicating coal power. The EPA uses a “hitherto obscure provision” of the Clean Air Act (Section III) to justify its actions. Hardly remarkable from this agency, and characteristic of this Administration. Remarkably thoroughly dismantled.

According to the EPA, they found in a Congressional mistake,  two different versions of Section III, and the EPA gets to choose which one it prefers to adopt a lawmaking  power that belongs to Congress, not to the EPA. The courts have previously misinterpreted Section III, they claim, and it just happens to allow them the major  power grab they have in mind. Mr.Tribe writes that even if the EPA’s theory were correct, the agency’s

“claim that it is entitled to pick and choose which version it prefers represents an attempt to seize lawmaking power that belongs to Congress. Under Article I, Article II and the separation of powers, EPA lacks the ability to make law.”

Professor Tribe added that a “presidential speech” is insufficient to claim such authority.

Mr. Tribe also explains how the EPA’s rule likely violates the Fifth Amendment’s Takings Clause with its “palpable unfairness” of imposing all the costs on a small subset of entities within the agency’s cross-hairs. Their Proposed Rule represents a radical shift in federal  policy that upsets settled, investment-backed expectations with no attempt by EPA to quantify the climate or environmental benefits from the Rule. Strong stuff.

Will this deter the EPA?  They are determined to impose their climate agenda, and the agenda of the radical environmental groups like the Sierra Club and the Natural Resources Defense Council without a vote from Congress. Then it will go the courts, and they may find Professor Tribe more authoritative than the agency they have already slapped down so many times.  Let’s hope so.

It’s infuriating when an agency is doing something stupid that will have unnecessary and truly evil effect on the country, and pays no attention to those who attempt to keep them from making major mistakes.

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