Posted by: Courtney Moran, Brian Merdinger, Brett Meyer, Ronald Meyer, Christian Lueders, Timothy Krupnik
April 20, 2015
The Climate Action Plan is legal and, despite critics who argue otherwise, President Obama has the authority to respond to climate change unilaterally by executive action. Following the Justice Jackson concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer and given the Supreme Court’s decision in Massachusetts v. the Environmental Protection Agency, a formalist would be forced to conclude that President Obama has the authority to enact the provisions of the Climate Action Plan. Additionally based upon Justice Jackson’s reasoning, a realist would also believe the same.
Since taking office in 2008, President Obama has issued just over 200 executive orders. The substance of these unilateral actions has varied greatly, ranging from basic statements of policy to sweeping proposals for widespread governmental change. This is nothing new, considering that some of the most significant governmental actions in U.S. history were initiated by executive action or proclamation (e.g. the Louisiana Purchase, freeing of the slaves, internment of the Japanese during WWII, etc.). But just because executive orders are commonplace does not make them immune to controversy. In fact, one of the more polarizing executive orders in recent history is President Obama’s Climate Action Plan (the “Plan”).
Criticism of the Plan largely comes from the right where opponents claim that the President is overstepping the limits of his constitutionally granted executive authority (both the Environmental Protection Agency (EPA) and the President’s treaty powers). Furthermore, the President’s critics maintain that he is circumventing Congress. In essence, they argue, he is making law on his own without legislative branch involvement. The Plan adds more fuel to the fire by including provisions for international commitments and is being argued that it unconstitutionally expands presidential power in foreign affairs.
On the other hand, proponents contend that the President is merely exercising his constitutionally, congressionally, and judicially granted authority. In addition, supporters of the Plan maintain that it is a necessary step in light of the fact that Congress has failed to sufficiently address the growing problem of climate change.
The question, therefore, is whether the Plan is legal and whether the President has the authority to address climate change unilaterally by executive action. The following discussion will describe the basic components of the Plan, explore the historical foundations of executive authority, the implementation of the EPA, and analyze the legality of the Plan and its implementation.
The EPA and the Climate Action Plan
The Constitution vests executive power to the President in Article II. Among other powers, the President is charged with carrying into effect and observing the laws created by the legislative branch. As federal legislation mounted following the formation of Congress, it became necessary to establish executive departments and agencies with these goals in mind. As a result, Congress and the President can delegate authority to executive agencies that are also known as administrative or federal agencies.
Currently, there are fifteen executive departments that are headed by members of the Cabinet. Additionally, there are executive agencies that are not headed by the Cabinet and that have some independence from the President, but the heads are appointed by the President. In order to create an executive agency, Congress must pass an enabling act that defines the scope of the agencies’ authority. After the establishment of the enabling act, the agency is then a part of the executive branch.
Environmental protection and conservation became a growing movement and resulted in the first nationally recognized Earth Day celebrated in 1970. That same year, as a response to the growing recognition of environmental protection, President Richard Nixon proposed the creation of the EPA. On July 9, 1970, President Nixon submitted an executive order to Congress establishing the need for one executive agency that would protect human health and the environment (the Reorganization Plan No. 3 of 1970). The order stated that “for pollution control purposes the environment must be perceived as a single, interrelated system” and that “this requires pulling together into one agency a variety of research, monitoring, standard-setting and enforcement activities now scattered through several departments and agencies.” President Nixon signed the executive order on December 2, 1970, and the EPA was created. The EPA has since become the primary mechanism for promulgating the policies of environmental legislation.
The President’s Climate Action Plan of June 2013 states that we have a moral obligation to leave future generations a planet that is not polluted and damaged. The Plan proposes that the main way to accomplish this moral obligation is to cut carbon pollution. The Plan points to evidence of global climate change, reflecting that the need to make changes is imminent. The three “pillars” of the plan include: (1) cut carbon pollution in America; (2) prepare the United States for the impacts of climate change; and (3) lead international efforts to combat global climate change and prepare for its impacts. Of these three, the most controversial pillar is the call to reduce carbon pollution in America, although the President’s participation in international efforts is also being called into question.
In the Plan, carbon is compared to other toxins like mercury and arsenic which required regulations to protect our children and promote economic growth. The Plan focuses on power plants which generate about one-third of all domestic greenhouse gases emitted. The Plan admits that at that time, there were no federal rules regulating the amount of carbon pollution generated by power plants. The Plan reports that the President was issuing a Presidential Memorandum instructing the EPA to create carbon pollution standards for all power plants. The Plan calls for other measures by various federal agencies to reduce their carbon emissions and help to protect areas from the damage caused by natural events like fires and flooding.
The Presidential Memorandum to create carbon pollution standards for all power plants is controversial because of the possible long-term effects on private companies. However, this portion of the plan will almost certainly harm power plants economically. The EPA has subsequently proposed “The Clean Power Plan” in accordance with President Obama’s Climate Action Plan. According to the Federal Register, the final rule will be published in July 2015.
Additionally, the Plan details a commitment to establish the United States as an international leader in climate change and enter into multilateral and bilateral agreements with China, India, and other foreign states. To this effect, the United States is currently in international negotiations in Paris, France for the 21st session of the conference of parties under the United Nations Framework Convention on Climate Change.
The Supreme Court’s Analysis
The Supreme Court may have given us the means to answer whether the Plan is legal in the form of Youngstown Sheet & Tube Co. v. Sawyer. In that case, President Truman sought to avert a national strike in the nation’s steel mills during the Korean War by issuing an executive order to temporarily seize the mills. Truman had already vetoed the Taft-Hartley Act (a law providing a cooling off period in strikes) and he did not use provisions in the Selective Service Act, which allowed for conscription of both people and industries, but only through complex process. Truman relied on the Vesting Clause (Article II, section 2), his enumerated power as Commander-in-Chief (Article II, section 2) and the powers granted in the Take Care clause (Article II, section 3) to support his order.
As a formalist, writing for the majority, Justice Black wrote that presidential power must stem from either an act of Congress or from the Constitution. In Youngstown, no statute expressly authorized the steel seizure. Truman relied on the foregoing three grants of constitutional authority to support his action. Black dismissed each of these arguments. In terms of the commander in chief power (“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”), Black said the power does not reach domestic regulation, and there is meant to be a distinction between the war front and the domestic sphere. Black then addressed the Vesting Clause (“The executive power shall be vested in the President”), stating the clause is not an independent grant of authority, and it is qualified by the enumerated powers in the rest of Article II. If the President is enforcing the laws, he cannot be the one to create the laws, and thus he has no policy-making responsibility, and his power is limited to implementing congressional policy. Finally, Black discussed the Take Care Clause (“He shall take Care that the Laws be faithfully executed”). He argued that the President and Congress are separate and that Congress is superior in formulating national policy. The President is merely the policy-implementing organ of the federal government. As a result, Black and the majority struck down the executive order.
In a concurring opinion, Justice Frankfurter offered a realist approach to the issue. He said that the Constitution would evolve over time with experience, so experience will be important to the interpretation. Nevertheless, because Congress had rarely allowed President this power, and had explicitly rejected it, Frankfurter agreed with Black’s conclusion.
While Frankfurter’s realist approach focused on the historical relationship between Congress and the President, Justice Jackson’s realist concurrence introduced the notion that the President’s powers are not fixed, but fluctuate, depending on their conjunction or disjunction with those of Congress. He found that executive power depends on what other branches have done about the same subject matter. Jackson determined that there are three categorical situations wherein the President can exercise power. First, an expressed or implied authorization by Congress gives the President his most irrefutable authority. Second, if Congress is silent on an issue, the President may take unilateral action. However, the basis of this authority is less than clear because neither Congress nor the Constitution has granted that specific authority, so the President must rely on his own inherent powers. Third, the President may take action on his own in the face of congressional resistance only if the authority is exclusively or explicitly granted by the Constitution (e.g. the pardon power).
Jackson saw Youngstown as a category three case, where Truman could prevail only if his executive order was based off an exclusive power of the President. There, the President and Congress had concurrent power because Congress can raise and support armies. As a result, Truman’s order could not stand.
Does the President have the authority to chart a climate change response unilaterally by executive action?
The answer to this question may hinge on the jurisprudential theories of formalism and realism.
Under a Formalist perspective one would look to the actual text of the Constitution and Congressional legislation. Accordingly, although the EPA was enacted through an enabling act and executive and administrative agencies can make rules and regulations once such legislation has been enacted, the EPA’s enabling act needs to permit the EPA to establish the rules and regulations regarding the specific provisions of the Plan. However, the enabling act does not provide for such and Congress did not later pass any specific legislation delegating such power. Additionally, there is no congressional resistance since provisions in the Plan are not shared between the President and Congress. Therefore, Congress has been silent on the issue and the President can only rely upon his own powers for the legality of the Plan.
In considering the legality of the Plan, critical Formalists will encounter some troubles. Under a strict interpretation of the laws, the Constitution does not specifically enumerate powers to the President to create laws pertaining to environmental conservation. As noted in Youngstown, the Vesting Clause does not grant any independent powers. The Commander in Chief powers would not address domestic issues of environmental conservation. The Plan could be considered under the Take Care Clause of Article II § 3; however, the specific laws that have granted the President the ability to promote environmental conservation, through the enabling act of the EPA, have not granted the EPA the specific authority to regulate private coal factories and their carbon emissions. In Massachusetts v. EPA (2007), the Supreme Court held that Section 202(a)(1) of the Clean Air Act required the EPA to set emission standards for any air pollutant from motor vehicles which “cause or contribute to air pollution which may be reasonably anticipated to endanger public health or welfare.” The Court held that greenhouse gases were within the statute’s definition of “air pollutants” and the EPA may regulate their emissions to protect the public welfare. It is clear the EPA has the authority to regulate greenhouse gas emissions and cut carbon pollution, and the Plan gives the EPA a guideline for how to be successful. Accordingly, under a Formalist perspective, the President does have the authority to enact the provisions of the Plan through the EPA.
In contrast to Formalists, a Realist will consider the powers of the President and the Executive branch in light of experience and practicality. As Justice Holmes said, “The life of the law is experience and not logic.” Accordingly, the EPA was enacted through an enabling act and allows for the EPA to address global climate change, therefore, the EPA’s enabling act permits the EPA to establish rules and regulations regarding the Plan. Additionally, since the President is constitutionally tasked with the responsibility of taking care of legislation enacted by Congress, Congress has expressed a delegation of authorization of the power to enact the provisions of the Plan. Therefore, President Obama is acting with the approval of both Congress and the Court.
Despite this outcome, there have been further critiques on the constitutionality of the Plan that centers on state sovereignty being violated by unconstitutional federal power. As Harvard Law professor Laurence Tribe (President Obama’s former law school professor and the professor who employed President Obama as his research assistant during this time) argued in a recent hearing before the Committee on Energy and Commerce on March 17, 2015, the Plan and its subsequent implementation by the EPA is a violation of the Tenth Amendment, imposing undue restrictions upon the states. This requires a formalist view of the Tenth Amendment as serving as an independent limitation upon Congress. However, a realist views the Tenth Amendment as a truism and not as an independent limitation of congressional power. Accordingly, the Tenth Amendment would not pose a hindrance to President Obama’s Climate Action Plan under a realist perspective.
Unilateral International Implementation
It could also be argued that the Plan exceeds presidential powers by allowing the President to unilaterally implement international climate change initiatives. However this argument fails to recognize that if a treaty is ratified by the Senate then the President is not acting unilaterally and if the treaty is not ratified then it is just a political agreement, which is a part of the President’s foreign powers.
Once the negotiations in Paris, France are complete, the Senate can choose whether to ratify the treaty through implementing legislation and become a Party to the treaty by a two-thirds majority. If they choose not to become a Party to the treaty, the United States can still be a signatory to the treaty, and it will have no legal binding effect. However, President Obama can create political agreements with other countries in order to implement provisions of the Plan. Even if Obama enters into political agreements, he is acting within his authority according to Justice Frankfurter.
Justice Frankfurter’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer states that the totality of the powers of the president are to be interpreted in light of the dynamic relationship that experience has written on the presidential relationship with Congress. According to Justice Frankfurter, if the presidential power has a history of “a systematic, unbroken, executive practice, long pursued to the knowledge of Congress and never before questioned” then Congress has acquiesced to those actions. Although the Plan is domestic legislation, there has been a long-standing history of presidential political agreements with other states. For example, the Plan can be compared to the Copenhagen Accord that President Obama helped to facilitate and establish in 2009 during negotiations of the Bali Action Plan under the United Nations Framework Convention on Climate Change. The Copenhagen Accord is an international environmental political agreement that has no legal force, but concerned a political commitment that establishes the Copenhagen Green Climate Fund and endorses the continuation of the Kyoto Protocol. Additionally, the Supreme Court has held on numerous occasions that the President is the spokesman for the country in regards to dealing with foreign power. For example, Dames and Moore vs. Reagan. In this role, the President has great authority to commit the United States to programs of cooperation with foreign governments. Accordingly, under Frankfurter’s reasoning, since Congress has not questioned the president’s ability to establish political agreements, Congress has acquiesced to that particular power.
Accordingly, the Plan’s international provisions may be enacted unilaterally through political agreements but cannot be unilaterally implemented as legally binding without Senate’s approval and ratification.
Pundits on both sides of this issue have one thing in common: they claim that the Constitution is in their corner. But as seen in the foregoing discussion, the constitutionality of the Climate Action Plan is largely a matter of jurisprudential perspective. Formalists may want to maintain that the Plan is based on falsely perceived executive power that simply doesn’t exist; on authority that should include an act of Congress, but instead circumvents the legislature. However, this argument ignores the fact that even if there is no specific legislation permitting the EPA to regulate carbon emissions, the Supreme Court has determined in Massachusetts v. EPA that the regulation of carbon emissions are under the authority of the EPA. Therefore, Congress has implied the delegation of the power to create and implement President Obama’s Climate Action Plan. Furthermore, Realists will hold to their contention that President Obama is simply “Taking Care” that active environmental legislation is implemented.
As Justice Jackson’s Youngstown concurrence reveals, regardless of if you take a formalist or realist perspective, President Obama’s Climate Action Plan is legal and he has the authority to address climate change unilaterally by executive action both domestically and internationally (with the exception to ratifying treaties, which will require Senate advice and consent).