Unilateral Presidential power for low-carbon initiatives?

November 18, 2007 6:40 AM

A question about Presidential power -- specifically, for the implementation of carbon reduction initiatives including a cap-and-trade system.

Yesterday, I watched the Presidential Forum on Global Warming and America's Energy Future. Sens. Clinton and Edwards both said that they would create a cap-and-trade system to limit emissions of carbon dioxide, among with many other measures regarding America's energy use.

However, what I didn't hear for most of the measures (including the trading schemes) was an explanation of how the candidate, as President, would implement his or her ideas. So I ask you, hive mind. How would this work? Suggesting legislation for Congress to consider seems like a pretty weak tack. Are the candidates planning to implement their plans unilaterally through Executive Order?

(A little history: A cap-and-trade system for sulfur dioxide was established during the first Bush administration, with the White House pushing amendments to the Clean Air Act and Congress adopting those amendments. The mores of the legislature may be different now with regards to carbon dioxide than they were then for sulfur dioxide.)

Please, only productive replies. Thanks!

posted by dondiego87 to law & government (12 comments total)

I'm no presidential or U.S. history expert, but I don't believe the president on his own has any power to institute such a program short of issuing and executive order. However, EO's are only to be used by the president for reinforcing or clarifying existing legislation, and uses to the contrary have been successfully challenged in the Supreme Court.

That said, the President DOES have the bully-pulpit, theoretically, and can use his stature to gain media attention and public/congressional support for such an initiative. As I understand it, that's all that the first President Bush did.

Not that this President Bush will ever again be able to rally public/congressional support for anything he wants...
posted by jk252b at 7:21 AM on November 18, 2007

The EPA -- and, hence, the President -- has broad powers under the Clean Air Act to regulate harmful emissions. The Supreme Court recently held, over the strenuous objections of Detroit and the Bush Administration, that the EPA must consider whether carbon dioxide is such a harmful emission and if it determines that it does, must regulate it in the same way that it regulates other harmful tailpipe/smokestack emissions like sulphur dioxide and carbon monoxide.
posted by MattD at 7:29 AM on November 18, 2007

It's important to note though that any carbon dioxide rules from this (or a future) administration without further Congressional authorization are going to have to follow the rather elaborate rule-making procedures in the EPA. Elaborate scientific findings will be published for notice and comment, the industry will have copious opportunity to lobby for regulations, economic impacts will be considered, and (inevitably) whatever rules or procedures that are promulgated will be litigated. The Supreme Court vote in question was 5-4, meaning that the final appeals of the subsequent litigation could easily yield a different result.

Bottom line: rulemaking under an unamended Clean Air Act, with a President willing to flout industry, industry basically willing to roll over, a judiciary that falls in line, can achieve significant, but not profound changes in carbon dioxide emissions. Take even one element out of that equation -- a President more friendly to industry, an industry more implacably opposed, or a judiciary that takes an ultimately more limited view of the mandates of the Clean Air Act, and the result will be modest at most.

Reliable and profound changes in carbon dioxide emissions will require new legislation and entry into and ratification of Kyoto II, which would make it very hard to backtrack on the legislation or its implementing regulations.
posted by MattD at 7:37 AM on November 18, 2007 [2 favorites has favorites]

Excellent information! Thanks so much.
posted by dondiego87 at 7:51 AM on November 18, 2007

The ultimate Constitutional provision on which all this is based is the "interstate commerce" clause, easily the most abused clause in the Constitution.

If coal is mined in a particular state, and transported to a power station which burns it inside that same state, producing power which is consumed inside that state, then there is no "interstate commerce" and under the Tenth Amendment the federal government doesn't have the power to control it.

(Of course, that same argument should have applied to "medical marijuana" in California but SCOTUS decided that "interstate commerce" applied anyway and gave the Feds the power to arrest those involved, so it's anybody's guess what would really happen once it hit the courts.)
posted by Steven C. Den Beste at 9:20 AM on November 18, 2007

If coal is mined in a particular state, and transported to a power station which burns it inside that same state, producing power which is consumed inside that state, then there is no "interstate commerce" and under the Tenth Amendment the federal government doesn't have the power to control

This is of course completely incorrect, and another in a series of tedious and radically misinformed derails.

There is an interstate commerce in pollution, which does not respect state lines; the only difference is that pollution is a bad, but the federal government easily has the power to regulate flows of pollutants across state lines, or into federal property (airspace over a limit).

Even a moment's trivial research would reveal this.
posted by ROU_Xenophobe at 10:02 AM on November 18, 2007

So I ask you, hive mind. How would this work?

Same as most other presidential-candidate promises -- partly through executive orders and management of the bureaucracy, but mostly through legislative work.

It's not as weak as you think. Merely signaling that you would sign a law if passed shifts the bar from two-thirds to half-plus-one (or sixty in the Senate). And the president has a real capacity to act here -- if the president is willing to horse trade over other issues, he can bear most of the costs of coalition-building so that congressional leaders can concentrate their efforts over fewer holdouts.
posted by ROU_Xenophobe at 10:07 AM on November 18, 2007

ROU_Xenophobe, the fact that something crosses state lines makes it "interstate" but doesn't necessarily make it "commerce".
posted by Steven C. Den Beste at 10:25 AM on November 18, 2007

Most of the Federal government's power these days comes from the simple fact that after the Feds have taken their share of taxes there's not much left for the states to take. The Fed is free to fund or not fund anything it wishes.

The commerce power governs anything that impacts interstate commerce. If I make something locally and sell it locally, it impacts interstate commerce because I'm competing against possible providers of my product from other states!

Ok, on to answering the posted question. Under existing law, the President can order the EPA to regulate any harmful emission. This was true before the Supreme Court looked at it. That the Court issued a 5-4 decision stating that a law should have its actually intended effect is a sign of how right-wing (not conservative) the Court has become. A liberal President using the EPA should have dramatic power to regulate pollution. That power would increase nigh exponentially if she got the chance to appoint someone to the Court.
posted by TeatimeGrommit at 10:48 AM on November 18, 2007

the fact that something crosses state lines makes it "interstate" but doesn't necessarily make it "commerce".

Forty years of federal jurisprudence says that you're completely wrong. Again, just a moment's casual research would indicate this.

I suppose I could trust the word of a random jackass on the internet over that history of jurisprudence. I could also listen to what Weighted Companion Cube has to say.
posted by ROU_Xenophobe at 11:04 AM on November 18, 2007

The Supreme Court stuff is a red herring. Even the current Court is very unlikely to pick a fight with a Democratic administration and Congress over environmental regulation. Den Beste is simply wrong on the facts, as well. Mining and other forms of production have been recognized as interstate commerce since US v. Darby Lumber in 1941, and any economic activity that causes pollution will be subject to regulation.

To answer the question, I'll echo the other comments. Presidents have a lot of power to act unilaterally through administrative agencies such as the EPA, of course. But "suggesting legislation for Congress to consider," as you put it, is a much stronger source of power than you're assuming.

Reagan, for example, was largely successful in following through on his budget-cutting promises in the first year of his presidency, and he accomplished this primarily through manipulation of the legislative agenda. And this was with a Democratic House, not unified government. Presidential proposals generally demand some response and place a lot of pressure on congressmen, particularly early in presidential terms or when presidents are very popular.
posted by shadow vector at 11:12 AM on November 18, 2007

a farmer eating grain from his own farm is interstate commerce (see wickard v. filburn). there is very, very little nowadays that can't be characterized as interstate commerce and is therefore safe from the meddling of uncle sam.
posted by bruce at 11:21 AM on November 18, 2007