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EPA’s Clean Power Plan violates the Constitution

This Tuesday and Wednesday, the Environmental Protection Agency (EPA) is holding public hearings in Atlanta on its proposed Clean Power Plan rule, but the rule violates our Constitution.

The Clean Power Plan rule would require a 30 percent reduction in carbon dioxide emissions from existing power plants by 2030. To achieve this, plants would have to install carbon capture and storage (CCS) technology, which is a new and unproven technology. The rule will cripple the economy and drive up the cost of electricity.

Aside from the practical problems with this rule, there is a huge “process” problem. The rule violates the separation of powers doctrine, which is the underlying reason for the three branches of the U.S. government set up in the U.S. Constitution. In Article II, Section 3, of the Constitution, the president is charged with the responsibility to “take care that the laws be faithfully executed.” Article I, Section 1, of the Constitution says, “ALL legislative powers herein granted shall be vested in a Congress of the United States.”

The Constitution does not authorize the president to impose his own laws—or EPA rules—simply because he lacks the skill to convince Congress of a desired course of action.

Our founders recognized that a chief executive should not have the power to impose his own laws. They had experienced too much of that with King George. They specifically delegated the legislative power—which is the power to establish policy—to Congress. The president was given just 14 responsibilities in the Constitution, and none of them included domestic policymaking. The president may recommend legislation, but he may not impose laws without the consent of Congress.

The Declaration of Independence says government must rule by consent of the governed. Our Constitution established a process to be followed when crafting new laws, and it was based on the decisions of representatives elected by the people and, originally, by senators elected by state legislatures. These elected officials ruled by consent of the governed and were charged with the authority to make laws. When the process is followed, the consent of the governed is honored and liberty is secured. The executive branch may not impose its own rules just because it wants to.

Our founders set up three branches in order to prevent any single branch from becoming so powerful that it could threaten the liberty of our citizens. That’s why they separated the legislative function from the executive function. If these functions are merged so that executive and legislative powers are wielded by one agency or one person, liberty will not be secured. It will be violated.

This proposed EPA rule is another example of this administration’s abuse of its power.

This new rule is excessively legislative. It is not an implementation of any law that has been passed by Congress, and it violates American liberty in ominous and frightening ways. If a single agency can decree—without the consent of Congress—that the work and treasure of a private company, a public utility or a cooperative enterprise can be wasted to achieve a clean air objective that has negligible impact on the quality of the air, then we have entered a new era of tyranny. Because it won’t be these companies that pay, it will be their ratepayers.

This action will further fuel the recruitment efforts of the grassroots tea party movement, by driving more frustrated citizens into the tea party ranks. The EPA and Obama administration probably have no idea what they are doing. The movement they are helping to grow will work to shrink the EPA budget and eventually return many of the agency’s responsibilities to the states where they belong, as the 10th Amendment requires. Another new overreach creates a new backlash.

The EPA should simply withdraw this destructive rule. It is not worth any miniscule benefits it might achieve. This rule is foolish and wasteful, and another example of how out of touch Washington, D.C., has become to the average American.

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