Congress Must Lead, Not the Courts
Republicans cannot punt hard decisions to the judges.


Andrew C. McCarthy

The new Congress begins its session this week with historically rare fortifications: swelling ranks of Republican freshmen and a clear mandate to roll back Obama’s administrative statism. For the GOP, it is a short lease on a second life, won only after assuring a skeptical electorate that amends would be made for Republican complicity in our current mess. Congressional leadership would thus be wise to remember that, in our free society, there is only one branch of government capable of legitimate, dramatic course corrections: the one composed of the people’s representatives. They have to act, not just go with the Potomac flow.

There is reason to worry that leadership has instead caught a case of “let the courts do it.” Take Rep. Fred Upton (R., Mich.). Despite considerable conservative grumbling, Mr. Upton has been installed by Speaker-in-waiting John Boehner as the new chairman of the House Energy and Commerce Committee. If the Obama administration’s job-killing war on industry is to be tamed, that committee will have to be smart and aggressive. The chairman-to-be is not exactly off to a flying start. In a Wall Street Journal op-ed last week (co-authored with Tim Phillips of Americans for Prosperity), he proposed that Congress sit on the sidelines for a couple of years, trusting federal judges to handle the taming.

The EPA has condemned carbon dioxide, the air humans exhale, as a pollutant that imperils human health. Under the 40-year-old Clean Air Act — legislation passed in a very different era, under very different assumptions — this endangerment finding is a pretext for government’s administrative juggernaut to impose ruinous curbs on all CO2 emitters, everything from large factories to small homes.

Until about five minutes ago, Representative Upton was a member in good standing of the green crusade. He was an enthusiastic cosponsor of Leviathan’s prohibition of the incandescent light bulb — the result of standards enacted with robust Republican support and signed into law by President Bush. Upton has now recanted, a stance he claims is sincere, not — perish the thought! — one of those cynical Washington conversions that happen when the chair on a powerful committee is up for grabs. He also says he grasps that the best corrective to the EPA’s sweeping power grab would be for Congress “to overturn the EPA’s proposed greenhouse-gas regulations outright.”

Yet, sensing that Democrats will not go along and, evidently, that Republicans are impotent to force them into doing so by winning the political debate, Upton urges a different tack: “a sensible bipartisan compromise” that would impose a two-year regulatory moratorium while “the courts complete their examination of the agency’s endangerment finding and proposed rules.” This is reminiscent of Washington’s last “sensible bipartisan compromise,” the two-year delay in ending the Bush tax rates — a deal Republicans celebrated as a great achievement but which actually saps tax-reform momentum while shielding President Obama from accountability for his confiscatory designs. If anything, the Upton strategy for confronting the EPA is even more counterproductive.

It was the federal courts that empowered the EPA to bring us to this precipice in the first place. The congressman pays lip service to this fact, but its significance eludes him. Specifically, in 2007, at the urging of environmental activists who were later joined by Democrat-dominated state and local governments, the Supreme Court’s liberal bloc — four died-in-the-wool progressives plus the trendy eccentric, Justice Anthony Kennedy — directed the EPA to determine whether carbon dioxide could be dangerous to human health. The Bush EPA already had declined to do so, so left-wing justices pushed the agency into it.

It was an act of political willfulness no lawmaker accountable to voters would ever have made — not unless he or she had a safe seat in a blue redoubt where socializing the prohibitive costs of central-planning solutions to imaginary crises is all the fashion. In the wake of Climategate’s data-manipulation revelations, the ruling (Massachusetts v. EPA) reads like parody, accepting as an undeniable given that global warming is a pending catastrophe unquestionably caused by human activity.


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