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Tuesday, December 30, 2014

Laurence Tribe: "The Clean Power Plan Is Unconstitutional"

It came as surprise to see Obama's Clean Power Plant proposed regulation branded unconstitutional on the opinion page of the Wall St. Journal by none other than his old law school professor, Laurence Tribe. Tribe's last foray into the editorial speculation came as the country neared a showdown over the debt limit. For awhile Tribe argued that the president had the power, even the obligation, to issue new debt notwithstanding the wishes of Congress. At the time I opined that printing bonds was not the same thing as selling bonds and investors would demand a huge premium to invest in paper that the courts might ultimately declare worthless. Eventually Tribe for some reason changed his mind. One hopes his legal reasoning is on point at this time.
This is not an academic exercise. Tribe has been retained by Peabody Energy whose interest in the regulation is literally a matter of corporate life and death. Tribe cites two cases, the most remarkable, the Obamacare individual mandate suit, wherein the majority ruled that the principle of federalism trumped the interstate commerce clause but it didn't matter as the mandate was actually a tax. More compelling than the constitutional argument is the statutory aspect. Tribe cites an arcane section of the 1970 Clean Air Act.
The brute fact is that the Obama administration failed to get climate legislation through Congress. Yet the EPA is acting as though it has the legislative authority anyway to re-engineer the nation’s electric generating system and power grid. It does not.
To justify the Clean Power Plan, the EPA has brazenly rewritten the history of an obscure section of the 1970 Clean Air Act. The EPA cites Section 111 of the Clean Air Act as authority for its proposal. In reality, this part of the law expressly says that it may not be used to regulate power plants where, as is the case in this situation, those plants are already being regulated as Congress contemplated under another part of the law, Section 112—one involving hazardous pollutants.
In other words the EPA is doing something that it has been specifically forbidden to do.
The news from Henderson County, Kentucky today was very grim. Patriot Coal Corporation is idling two western Kentucky mining operations while it mulls the future of coal. The company employs approximately 670 men. They are represented by two senators. One is a cagey majority leader who just got reelected by promising to save coal mining jobs and the other wants very much to be president. Neither Sen. McConnell nor Sen. Paul can afford to lose this fight.
Obama and his EPA have picked a fight they probably can't win. McConnell will go to the mat over this even if it means shutting down the entire EPA which congress can do by simply not appropriating a budget but it would be much more pleasing if the regulation was shot down by Obama's old friend.

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