In response to: Ten Ways for the Next President to Promote the Rule of Law
I can only applaud the excellent “to do list” in Adam White’s Liberty Forum essay, even as I scan the absentee ballot that I received in September wondering whether any of the leading candidates would have the good sense to give the list the attention it deserves. But we are giving advice here, not forecasting the future, and so we persevere in the face of obvious obstacles to progress. The first item on the White List—rescinding President Obama’s worst regulatory excesses—should be front and center in the earliest days of the new administration. I would suggest making a distinction between those…
Adam White’s Liberty Forum essay offers 10 ways for our 45th President to promote the rule of law, many of which I find appealing. But I fear he could offer a thousand such ideas without much effect, and in the end he concedes that he, too, doubts that Presidents will restrain themselves or their governments…
It is very difficult to take issue with the pessimistic tone of Adam White’s sensible advice to the next President on 10 ways to promote the rule of law. All of the topics that he mentions are understood as serious, systemic weaknesses. When it comes to administrative law, President Obama has a penchant for excessive…
When Law and Liberty invited me to write on 10 things that a new president could do to promote the rule of law, I was struck by how counterintuitive the question was. After years upon years of debate over presidents pushing the boundaries of the constitutional powers (and not just during the most recent administration,…
It has always seemed odd that the ultimate power of man over nature—science—is supposed to be what will preserve the naturalness of the environment.
Last time we celebrated Earth Day, President Obama had no doubts when he told the “science guy” Bill Nye that it is “part of our constitutional duty” to promote science for the environment. “I’m not a scientist either, but I know a lot of scientists,” said the President. “I have the capacity to understand science. I have the capacity to look at facts and base my conclusions on evidence.”
Among the Supreme Court’s most lamentable habits is a lack of candor in cases of grave political, economic, and social import.
By “lack of candor,” I don’t mean the shading or the strategic deployment of legal arguments. That comes with the constitutional territory, and we have tolerably efficient social practices—the publicity of judicial opinions, a watchful and disputatious legal profession—to flush out mistakes and misconduct. What I mean is (1) a deliberate judicial attempt to recruit political institutions (Congress, states, lower courts) into bringing about desired social outcomes, coupled with (2) an ex ante maneuver to evade responsibility for an anticipated adverse result.
Tomorrow and the day after, a panel of the U.S. Court of Appeals for the D.C. Circuit (Judges Rogers, Sentelle, and Tatel) will hear oral arguments in a raft of cases challenging the Environmental Protection Agency’s rules on the regulation of carbon dioxide (CO2) and other greenhouse gases (GHG). In its scope and consequences, the EPA’s climate change program exceeds even ObamaCare and Dodd-Frank: it threatens to engulf any firm, facility, and product that emits CO2 above minimal threshold amounts. However, the EPA’s program in this case does not rest on a 2,000-page enactment by a temporarily deranged Congress, nor even on a unilateral bureaucratic power grab. Rather, it proceeds, with seeming and depressing inexorability, from a series of crabbed and tendentious judicial and administrative interpretations of a few stray provisions in the Clean Air Act (CAA)—a statute that long pre-dates the climate change crisis or obsession (take your pick) and, by uniform consensus, is designed to tackle local air pollution, not a global calamity.
What the D.C. Circuit is looking at is a fantastically expensive and convoluted regulatory program that is uniformly acknowledged to produce no discernible climate change benefit whatsoever. Yet that exercise in pointless social mortification—a kind of permanent socio-economic Lent without Easter—threatens to elude any of the ordinary checks and controls: cost-benefit comparisons; judicial arbitrary and capricious review and statutory limitations; congressional or presidential intervention.
Today’s post discusses the trajectory of the climate change train wreck and its principal legal questions. Tomorrow’s post will address the broader institutional questions.