Can the President pass a carbon tax as an executive order?

July 28, 2016 9:48 PM

I was speaking with a former US Representative about carbon pricing and she basically said "it's never going to get through Congress, the fastest way is to get Obama to issue an executive order". I asked a group that works specifically on trying to pass a national revenue neutral carbon tax about this and they didn't think it was possible. I asked a few other politics buffs and was told the same thing. Is this former Member of Congress not sure of what she's talking about?
posted by defmute to Law & Government (11 answers total)

Only congress is authorized to levy taxes. That doesn't mean someone more clever than me about the levers of gov't could find a way to do the equivalent through an executive order.
posted by dis_integration at 9:53 PM on July 28, 2016

Response by poster: Right on. What about if it were a carbon "fee" opposed to "tax"?
posted by defmute at 9:58 PM on July 28, 2016

Theoretically, the president could do pretty much anything as an executive order, and who's going to do anything about it?

But then again I subscribe to the theory that presidential democracies always inevitably break down.
posted by Automocar at 10:08 PM on July 28, 2016 [1 favorite]

Best answer: You'll want to read this.
posted by kickingtheground at 10:30 PM on July 28, 2016 [4 favorites]

Executive orders can be rescinded or overruled by SCOTUS, but here is a good overview of the differences between taxes and fees:

How Is the Money Used? Federal and State Cases Distinguishing Taxes and Fees

Taxes, fees, and penalties are all imposed by government, all raise revenue, and all impose economic costs. While some may equate a tax to any government action that results in costs of any kind, the general public and the courts have been careful to distinguish between different forms of government-collection exactions. The key difference between these different assessments, according to laws and interpretive rules used in nearly every state, is their purpose.

1) Taxes are imposed for the primary purpose of raising revenue, with the resultant funds spent on general government services.

2) Fees are imposed for the primary purpose of covering the cost of providing a service, with the funds raised directly from those benefitting from a particular provided service.

3) Penalties are imposed for the primary purpose of penalizing or regulating behavior, generally imposed as part of judicial proceedings, with resultant revenue a secondary consideration.

4) Some taxes, known as Pigouvian taxes, are justified on grounds that they will discourage behavior, but their primary purpose remains revenue raising.
posted by a lungful of dragon at 2:23 AM on July 29, 2016 [3 favorites]

The power of the presidency is in the bully pulpit; Persuasion.

The President may pass just about any executive order they wish, but both Congress and the Supreme Court can make it politically and or legally untenable.

This is why most executives are very cautious about the use of executive orders.
posted by tgrundke at 3:30 AM on July 29, 2016

The former rep was probably deliberately distorting the case.

Meanwhile, there's no reason why Congress can't deal responsibly with climate change, given a change in its membership.

(Any fees imposed in lieu of a tax would likely be legislated out of existence by Congress as currently exists.)
posted by justcorbly at 3:47 AM on July 29, 2016

EOS only have legal effect if 1) they are on the internal workings of the executive branch, or 2) Congress has delegated power to the President.

Neither of those is true for a carbon fee. So if the Prez tried to implement a fee via EO, the company wouldn't pay, it would go to court, and the EO would be struck down.
posted by jpe at 4:24 AM on July 29, 2016 [1 favorite]

"But then again I subscribe to the theory that presidential democracies always inevitably break down."

20 years ago, a poli sci prof told me that ours was basically the only example of a strong presidential system that lasted. I haven't done the research, but it seems likely that this is still true.
posted by uberchet at 6:14 AM on July 29, 2016

I'm skeptical that the president could establish a taxing system by executive order, but perhaps what the representative meant was that the president could direct the EPA to establish a fee/permit/cap-trade system under its existing regulatory authority? I don't know the scope of the EPA's statutory authority, but, generally, federal agencies are given power by Congress to issue regulations in a particular area and the agency can then go forth and regulate without getting specific permission from Congress for the details of the regulatory plan. I believe (but don't really know) that the EPA has fairly broad authority under some older statutes (like the Clean Air Act and the Clean Water Act) and therefore can do stuff that the Congress wouldn't pass on its own today.
posted by Mid at 7:41 AM on July 29, 2016 [1 favorite]

Best answer: Here's a law review article arguing that administrative agencies do have a decent amount of authority to impose taxes in the environmental law area, and discussing some of the political and legal reasons they don't use this power.
posted by willbaude at 3:42 PM on July 29, 2016