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Senate Vote on S.482: Fiddling While the Republic Burns

by Marlo Lewis on April 12, 2011

in Blog, Features

If Reps. Henry Waxman (D-Calif.) and Ed Markey (D-Mass.) in the House, or Sens.  Barbara Boxer (D-Calif.) and Harry Reed (D-Nev.) in the Senate, were to introduce legislation authorizing EPA to use the Clean Air Act (CAA) as it sees fit to regulate greenhouse gases (GHGs), would the bill have any chance of passing in either chamber of Congress?

No. Aside from a few diehard global warming zealots, hardly any Member of Congress would vote for such a bill. Most lawmakers would run from such legislation even faster than the Senate last year ditched cap-and-trade after its outing as a hidden tax on energy. 

Now consider what that implies. If even today, after nearly two decades of global warming advocacy by the United Nations, eco-pressure groups, ’progressive’ politicians, left-leaning media, corporate rent-seekers, and celebrity activists, Congress would not pass a bill authorizing EPA to regulate GHGs, then isn’t it patently ridiculous for EPA and its apologists to claim that when Congress enacted the CAA in 1970 — years before global warming was a gleam in Al Gore’s eye — it gave EPA that very power?

These simple questions cut through the fog of sophistry emitted by the likes of Waxman, Markey, and Boxer to defend EPA’s hijacking of legislative power. As I have explained elsewhere in detail (here, herehere, and here), EPA, under the aegis of the Supreme Court’s poorly-reasoned, agenda-driven decision in Massachusetts v. EPA, is using the CAA in ways Congress never intended and never subsequently approved. EPA is defying the separation of powers. It should be stopped.

Last Thursday, 50 Senators voted for S. 482, the Energy Tax Prevention Act, a bill to stop EPA from ‘legislating’ climate policy under the guise of implementing the CAA. The bill did not pass because 60 votes were required for passage. The House, on the other hand, passed H.R. 910, an identical measure, by a vote of 255 to 172.  

Every Member of Congress should have voted for both measures, because every Member should resist attempts by other branches to encroach on Congress’s constitutional prerogatives. Article I, Sec. 1 of the Constitution vests “all legislative Powers” in Congress. Not in EPA. Not in the Supreme Court. In Mass. v. EPA, however, a 5-4 majority decided to ‘legislate’ from the bench, positioning EPA to ‘legislate’ from the bureau.

Sen. Boxer summed up the attitude of EPA’s apologists during last year’s debate on Alaska Sen. Lisa Murkowski’s resolution of disapproval (S.Res.26) to overturn EPA’s Endangerment Rule, the trigger and precedent for EPA’s ever-growing ensemble of GHG regulations. Boxer complained that if the public has to wait for Congress to enact controls on GHG emissions, “that might not happen, in a year or two, or five or six or eight or 10.” Yes, but how in the world does that authorize EPA to substitute its will for that of the people’s representatives? The fact that Congress remains deadlocked on climate policy is a compelling reason for EPA not to act, not a license for EPA to elevate itself into Super Legislature.

The legislative process is often slow and frustrating. It is so by constitutional design! The slow process of legislative deliberation moderates out politics, fosters continuity in law and policy, and, more importantly, forces elected officials to take responsibility for policy decisions so that ordinary citizens can hold them accountable at the ballot box.

Every Member of Congress should know from Civics 101 that the legislative process is more valuable than any policy outcome an administrative agency might achieve by circumventing and undermining it. Regrettably, the 50 Senators who voted ‘no’ on S. 482 seem to think that EPA’s climate agenda is more valuable than any constitutional scruple that might interfere with it.

Defending the separation of powers becomes all the more urgent as America slouches towards insolvency. If the next economic crisis is worse than the present one, Congress will be hard put to resist the clamor for an Imperial Executive to make the trains run on time. Now is no time to turn a blind eye to — or cheerlead for — an executive agency’s court-abetted seizure of legislative power.

The Senate may get another chance to vote on S. 482. Nonetheless, the sad fact remains that 50 Senators just voted to trash the separation of powers. They fiddle while the Republic burns.

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