Put the REINS on EPA

EPA’s end-run around democracy -- the agency’s hijacking of climate policy via the backdoor of Clean Air Act regulations -- is meeting stiff resistance on Capitol Hill.

The House Energy and Commerce Committee has already held a hearing on the Energy Tax Prevention Act, which would overturn EPA’s Endangerment Rule and an assortment of related rules imposing Clean Air Act permitting requirements on power plants, refineries, and other emitters of greenhouse gases. Passing the bill -- sponsored by Sen. James Inhofe (R-OK), Rep. Fred Upton (R-MI), and Rep. Ed Whitfield (R-KY) -- is reportedly a top priority of House Speaker John Boehner (R-Ohio).

Sen. John Barrasso (R-WY) and Rep. Tim Walberg (R-MI) have also introduced the "Defending America’s Affordable Energy and Jobs Act." This even stronger legislation would prohibit all agencies from "legislating’"climate policy under any existing statute, none of which was ever designed or intended for that purpose.

Not so long ago cap-and-trade advocates, such as Rep. Ed Markey (D-MA), warned that if Congress did not enact “comprehensive energy and climate legislation,” opponents would end up with something they’d like even less -- a cascade of Clean Air Act climate regulations promulgated by EPA. Cap-and-traders clearly implied that using the Act as a framework for climate policy would be worse for business -- less efficient, less predictable, and potentially more costly.  They tried to scare industry, Republicans, and coal-state Democrats into supporting cap-and-trade as a lesser evil.

But this just means that if EPA’s climate regulations were put to a vote, they’d have even less chance of passing in the 112th Congress than cap-and-trade did in the 111th Congress. It also means that non-elected bureaucrats are "enacting" an economically riskier version of the same agenda that Congress recently rejected.

As noted, Congress may put the kibosh on EPA’s power grab. But things should never have gotten to the point where the friends of affordable energy on Capitol Hill have to hold hearings, build coalitions, and endure vicious calumny just to stop EPA from implementing policies Congress never voted on or approved.

The Rot Runs Deep

EPA’s power grab is, alas, only the most egregious example of a more pervasive disorder undermining our Constitution and endangering our prosperity.

Americans live under a regime of regulation without representation. In the modern regulatory state, elected officials enact broad regulatory statutes, such as the Clean Air Act, the Occupational Health and Safety Act, or the Telecommunications Act. However, Congress and the president then delegate to non-elected officials the tasks not only of developing and proposing but also of enacting the implementing rules.

Administrative agencies such as EPA end up wielding powers that the Constitution reserves to Congress. Article I, Sec. 1 of the Constitution vests “all legislative powers” in the Congress of the United States, and Article I, Sec. 8 gives to Congress the power to lay and collect taxes. Agencies have no constitutional authority to make law or raise taxes. Yet they issue thousands of regulations each year, all having the force and effect of law, and many functioning as implicit taxes that increase the cost of goods and services.

If asked whether bureaucrats should have the power to make laws and raise taxes, most Americans would unhesitatingly say no -- and with good reason. In the political theory underpinning the U.S. Constitution, governments “derive their just powers from the consent of the governed.” This means that all powers -- legislative, executive, and judicial -- originate with the people, and legitimate government arises from a compact whereby the people agree to delegate certain powers to certain offices or institutions. This means officials are the stewards, not the owners, of power. Just as legislatures have no right to seize powers the people have delegated to the executive, so they also have no right to transfer to the executive branch powers that the people have delegated to them.

John Locke, an English philosopher admired by Jefferson and many other Founders, succinctly explained what later came to be called the non-delegation doctrine:

The legislative cannot transfer the power of making laws to any other hands, for it being but a delegated power from the people, they who have it cannot pass it on to others.

Similarly, the Supreme Court, in the 1892 case of Field v. Clark, declared:

That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of a system of government ordained by the Constitution.