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.
As legal craftsmanship, the opinion is spurious. The slim majority ran roughshod over settled jurisprudence on standing. These principles require courts to stay their hands and let the regular democratic process handle policy disputes absent a concrete injury to an individual person — not a policy decision that rubs an interest group the wrong way. Such an injury must be clearly traceable to harmful actions and be capable of redress by the remedy demanded; litigation is not for speculation and moral victories. Ignoring these principles and leaping headlong into the political fray, the justices waved off the Bush EPA’s reasons for declining to regulate carbon dioxide — reasons that were both valid and adequately checked by the political process. Not the least of those considerations was this: If the “crisis” were truly global, any marginal benefit from U.S. regulations would be wiped out by the refusal of emerging foreign economies to join a green suicide campaign.
Nevertheless, Representative Upton has managed to convince himself that the courts, having spurred a reluctant EPA to action, will suddenly be disposed to rein in the agency now that Obama’s aggressive bureaucrats have forced it to get with the Supreme Court’s program. After all, the congressman rationalizes, there are clear-cut legal challenges pending against EPA’s gambit, including the agency’s failure to forecast likely job losses. He’s kidding himself. Does the congressman not think the Bush administration had pretty good legal claims when the EPA tried to fight off the climate alarmists in the Supreme Court? Does he not think Arizona had pretty good arguments last year when it explained to a federal district judge that its new immigration statute was merely aimed at upholding federal immigration law? How did those cases work out?
Whether there really is a climate crisis, the questions of what its material causes are and how costs and benefits should be weighed in deciding what is to be done are political questions, not legal ones. Policy is the work of Congress, not the courts.
A two-year legislative time-out so that litigation can proceed would most likely accomplish two things, both bad. First, we should expect at best a mixed bag of rulings. More likely, we’d see decisions favoring the Obama EPA from a combination of activist left-wing judges (more and more of whom are being appointed by President Obama) and from restrained judges who understandably feel obliged to follow the Supreme Court’s lead. Second, while sapping Congress’s will to act and imbuing court decisions with outsize significance, a two-year delay would reward Obama’s EPA with the patina of judicial legitimacy. That would further undermine any hope for a democratically driven policy that gives the environment its due — whatever that may be — while promoting economic growth.
Americans did not oust Democrats in droves because they wanted these kinds of “sensible bipartisan solutions.” “Bipartisanship” is a euphemism for avoiding risk and tolerating a wayward status quo. Little wonder that the word trips effortlessly off the tongues of professional politicians: Their influence depends on the status quo’s increasing concentration of power in Washington. Americans ousted Democrats in droves because they want the status quo changed and power over their lives transferred from Washington to themselves. That means fighting to reform relics like the Clean Air Act without fear of being caricatured as against clean air. It doesn’t mean sitting safely on the sidelines while the Left sees what it can get done in the courts.
Before the midterm elections, Republicans talked a good game about fighting the predicament they helped put us in. Now, it is time for the actual fighting. That will take thick skin and stiff spines. Without copious reserves of both, the new lease will be very short indeed.
— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.