Executive agencies weren’t present at the creation. Rather, they are creations of Congress, and they enjoy no powers outside those that are delegated to them by Congress.
In delegating its authority, the Congress is quite literally granting a piece of its policy-making power to the Executive. In fact, such a delegation is a practical necessity: Congress can’t legislate every foreseeable scenario, so it must allow agencies the discretion to act within bounds established by the enabling statute (if it is to create regulatory regimes). Courts understand this; delegation is the basis of the judiciary’s deference to executive action.
Of course, a policy-making executive comports poorly with the Founding Father’s distrust of executive authority and also their view of the Congress as the primary policymaker. Simply put, policy in America should have a popular mandate. Accordingly, a federal agency’s exercise of its powers, especially when involving an expansion of authority, should have been a policy that the President campaigned on, or at least highlighted in some fashion when he or she is being vetted by the voters. That way, the American people have a say. No less an authority than the Supreme Court has identified the President’s popular mandate as a basis for deference to agency decision-making.
All this brings me to my point: the conspicuous absence of a popular mandate for EPA’s climate plan for existing power plants, which will be unveiled today. Consider:
- The President campaigned to the right of Mitt Romney on energy and environment. During the 2012 Presidential debates, Obama never once mentioned global warming.
- As noted by my colleague Marlo Lewis, the Congress explicitly considered the policies that EPA is now proposing to impose. As such, the people’s representatives have spoken to the issue, and they didn’t proceed with policy.
- As if that’s not enough, poll after poll demonstrates that the American electorate gives ultra-low priority to global warming.
Taken as a whole, the available evidence strongly indicates the President’s climate plan is illegitimate.