Is the President above the Constitution?
The President is expected to unveil a significant proposal aimed at curbing carbon emissions from America’s 600 coal-based energy facilities. The White House move will have a major impact on the economy, costing approximately $50 billion dollars annually. It will have a heavy impact on Americans, already paying excessive prices for fuel.
It may well strengthen the newly aggressive and militarized Russian government by raising the price of energy, thereby providing more funds to the energy-rich Kremlin which finances its military through gas sales.
The most controversial aspect has nothing to do with the specifics of the move. The most important question is whether Mr. Obama has the authority to take the action in question at all. The President believes that he can engage in actions that will have the full force of law without the consent of Congress.
Weakening the President’s position is his prior failure to guide proposed environmental laws through Congress in his first term. Critics maintain that the White House at first attempted to comply with the appropriate Constitutional methods, but resorted to an unconstitutional utilization of Executive Orders when he didn’t succeed.
The President requires no consultation with the other two branches of government in the performance of his executive duties. It would be absurd to expect that every deployment of troops, every regular or normal daily operation of federal agencies, and every other normal administrative process be subjected to direct Congressional oversight.
But, as noted in the online law journal thelegality.com , executive orders are only applicable to “actions of the executive branch…The Executive is not a legislator…He is not above the law.” Justice Hugo Black, in the case Youngstown Sheet & Tube Co. v. Sawyer wrote that an executive order “must stem either from an act of Congress or from the Constitution itself.”
There is a keen difference between administrative actions in fulfillment of the law and actually taking steps that affect the law itself, or, indeed, have the same impact as law. This controversy has been evident in the White House’s actions concerning the Affordable Health Care Act (Obamacare.) The President’s unilateral action in deciding which portions of the law to enforce and which to ignore until sometime in the future when it is more politically expedient to do so has merited extensive and appropriate criticism.
John Malcolm, director of the Edwin Meese III Center for Legal and Judicial Studies, has written in a Heritage publication that “President Obama has shown no qualms about taking unilateral actions that bypass Congress and ignore important separation of powers principles that are an essential safeguard of our liberty.”
Throughout his administration, Mr. Obama has used executive orders to implement policies specifically rejected by Congress.
The President’s use of his authority to implement environmental measures has been a particular source of criticism. The Congressional newspaper The Hill noted that Attorneys general in 17 states have contended that “the Environmental Protection Agency has overreached in pursuit of President Obama’s plan to counter the effects of climate change via federal regulation.” They maintain that the “EPA, if unchecked, will continue to implement regulations which far exceed its statutory authority to the detriment of the States, in whom Congress has vested authority under the Clean Air Act, and whose citizenry and industries will ultimately pay the price of these costly and ineffective regulations…”
The dueling sides for and against the President’s carbon emissions plan will disagree on the specific merits of the proposal. The far more important debate, however, will have nothing to do with the details of this program and everything to do with whether the United States will continue to be governed by Constitutional provisions clearly calling for a series of checks and balances on the authority of the chief executive.