Sheldon Whitehouse Calls for Presidential Lawmaking by ‘Executive Beast Mode’

You or I might have read the United States Constitution, and thought, “Maybe the president doesn’t just have the unilateral power to write the laws. Maybe that’s why it says ‘all legislative powers’ are ‘vested in a Congress.'” You or I might have watched the just-ended Supreme Court term, and thought, “The Court is now taking this seriously, if we’re going to big propose new administrative rules, the last thing we should do is just say out loud that we’re having the executive make laws because he can’t get them through Congress.”

You and I, however, are not Sheldon Whitehouse. The conspiracy-obsessed Rhode Island senator tweeted last night a list of laws he wants Biden to enact through the agencies, on the theory that, “with legislative climate options now closed, it’s now time for executive Beast Mode”:

There’s a lot the Biden administration could be doing on climate change:
1. A robust social cost of carbon rule with broad reach.
2. Require carbon capture from all major emitters.
3. Stricter limits on co-pollutants from coal- and gas-fired power plants
4. Stronger emissions controls on cars/light trucks and heavy-duty vehicles.
5. Put lower emissions front and center in procurement (e.g. electrify USPS).
6. Hunt methane leaks with new satellite technology and enforce.
7. Tell DOJ to evaluate tobacco-style climate litigation (DOJ won big!).
8. Dozens of smaller regs across DOE, DOI, EPA, DOD, OMB (“thousand cuts”).
9. Call out corporations who block climate action in Congress (“good guys” too).
10. Use existing executive branch trade and tariff authority to establish a carbon border tariff for imports from countries with worse relative carbon emissions, based on industry carbon density.
Free at last. Let’s roll. Do it all and start it now.
With legislative climate options now closed, it’s now time for executive Beast Mode.

There is no “executive Beast Mode” clause in the Constitution. Some of the Whitehouse proposals would quite obviously be struck down on the same basis as the carbon-emissions rule in West Virginia v. EPA. But he has now made it easier to challenge even more modest rules in court, by framing them as part of a larger “thousand cuts” strategy. And nobody dislikes this stuff more than Chief Justice John Roberts. Expect these Whitehouse tweets to end up in a Roberts opinion sooner or later.