The Unconstitutional ‘Executive Beast Mode’ Presidency
Democrats denounced Donald Trump as a dictator for invoking emergency powers to build his border wall after he was blocked in Congress.
Well, now they’re demanding that President Biden declare climate change a national emergency to advance their anti-carbon agenda that Congress won’t pass. Apparently, dictators are in the eye of the beholder. [bold, links added]
Progressives are furious at West Virginia Sen. Joe Manchin for scuttling a big climate spending bill.
“With legislative climate options now closed, it’s now time for executive Beast Mode,” Rhode Island Sen. Sheldon Whitehouse tweeted last week.
And now the White House is leaking that the President may declare a national climate emergency as soon as this week.
This would be an even greater abuse of power than Mr. Trump’s repurposing of military funds for the border wall.
We criticized Mr. Trump at the time and warned that a Democratic President might use the precedent to declare a climate emergency. And here we are.
While a President may sometimes need to act with dispatch during an emergency, climate change isn’t close to such an event. Climate change is neither sudden nor unexpected.
The world has warmed by 1.1 degrees Celsius since the late 19th century, and the pace of future warming is uncertain and depends on multiple variables.
In any case, nothing progressives want Mr. Biden to do will affect the climate or even reduce global CO2 emissions. China and India will continue to build coal plants that offset all of the West’s climate sacrifices.
But that isn’t stopping progressives from demanding that Mr. Biden roll over the Constitution’s separation of powers.
One irony is that Congress passed the National Emergencies Act of 1976 to limit abuses of executive power. The law requires the President to activate his powers under one of 130 or so statutes that authorize emergency actions.
Here are some of the ways progressives want Mr. Biden to impose his climate agenda without democratic assent:
• Halt oil exports. A 2015 legislative compromise by Barack Obama and Paul Ryan lifted the decades-old ban on crude exports in return for extending green-energy tax credits. This helped unleash U.S. oil production, especially in the Permian Basin.
Progressives want to end shale fracking. But banning U.S. exports would drive up global oil prices, and the U.S. would still have to import refined products and crude to meet demand. In the name of meeting a climate emergency, they’d create a bigger energy emergency.
• Stop oil and gas drilling in the outer continental shelf. Mr. Biden has already imposed a de facto moratorium on new offshore leases, but progressives want him to suspend existing leases. This would reduce U.S. production by about 1.8 million barrels a day—about two to three times as much as Russian output has declined owing to Western sanctions.
Progressives want Mr. Biden to self-sanction the U.S. oil and gas industry while they prod him to lift sanctions on Venezuela and Iran. Canceling active leases would abrogate contracts and presumably require compensation, which would require money from Congress.
• Use the Defense Production Act to build green energy. This Cold War-era law lets the President marshall domestic industry for national security. Mr. Biden has already invoked the DPA to boost the manufacturing of solar panels, lithium-ion batteries, and heat pumps.
While Mr. Biden could try to command manufacturers to make more green products, logistical snags would abound. Automakers couldn’t easily convert factories into making solar panels or even electric vehicles. A shortage of critical minerals such as cobalt and lithium would also limit production, and it takes years to develop new mines.
• Repurpose funds as Mr. Trump did. The climate left wants Mr. Biden to use funds for disaster relief or military construction to build green energy systems. Americans whose homes are destroyed in wildfires or hurricanes won’t be happy if Mr. Biden raids disaster funds to build solar plants.
The most serious harm with all this would be to the rule of law. The Supreme Court in its landmark Youngstown Steel (1952) decision blocked Harry Truman’s attempt to nationalize steel mills during the Korean War.
Justice Robert Jackson famously explained in his concurrence that a President’s authority is “at its maximum” when he “acts pursuant to an express or implied authorization of Congress,” while it’s weaker when acting “in the absence of a congressional grant or denial of authority.”
Declaring a climate emergency would flagrantly circumvent Congress. The President may do it anyway.
But thanks to the High Court’s recent West Virginia v. EPA decision, lower courts will be well-equipped to decapitate the executive beast.
Read more at WSJ
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