addressing climate change by executive action and what that means for constitutional principles

(Atlanta) The Obama Administration is deciding whether to address climate change by regulating power plants, thus bypassing Congress. In addition to the environmental and economic impact of such regulations, there is also a question about whether governance by executive order is acceptable. That question belongs in a broader discussion about the “imperial presidency,” the dysfunctional US Congress, and the regulatory or administrative state. Although climate change arguably poses a fundamental threat to the republic—and although I hold our current president in high regard—the critique of executive power is an important topic. But instead of simply forming a preference for Congress versus the White House (or the EPA), we ought to consider fundamental principles. The following principles seem relevant:

Accountability: Officials who make momentous decisions should always be accountable to the American people, albeit with a time-delay, so that citizens have a chance to reflect and discuss. The EPA administrator is appointed and confirmed, not elected. The president is elected, but he faces no reelection after his second term. Thus the executive branch is not fully accountable. But very few members of Congress face competitive elections; and a vote (whether for Congress or the president) is a blunt instrument of accountability. We only get one vote per candidate even though he or she may hold hundreds of opinions and positions—and we can’t vote at all for the 434 representatives outside our district. Overall, I’d say the president won about as clear a policy mandate as a politician ever gets, although that may not be saying much.  (Score this one a tie.)

Deliberation: The Constitution (Art. 1, sec. 1) vests all legislative (law-making) power in Congress. One important reason is that Congress can deliberate, considering a wide range of arguments and evidence before acting. It can thereby apply what Madison called “the mild voice of reason.”

Congress is not actually very deliberative; discussions within the EPA are generally more mild and reasonable than those on the floor of the House or Senate. Madison would not be too surprised: he acknowledged that the mild voice of reason … “is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain.”

But here is an argument for legislative deliberation that does not depend on a high estimate of our legislators or their procedures. Let’s assume that issues like regulating carbon are essentially moral, concerning tradeoffs of goods and conflicting principles. The EPA is ill-equipped to deliberate about value questions. Civil servants lack the mandate and legitimacy to do so. Instead, decision-making within an administrative agency is drowned in empirical data and legal interpretation (two forms of expertise). Although current members of Congress may be ignorant of science and law, they do talk about values in public—and we can hold them accountable for their reasons as well as their decisions. To be sure, the president also articulated and defended values on the campaign trail; but Congress remains a better forum for deliberating values, even when it reaches bad conclusions. (Score this one for Congress.)

Checks and balances: The Constitution makes policies hard to change; usually, at least two separate branches must concur. For instance, Congress has the power to overrule EPA regulations by passing a bill and overriding Obama’s veto. This system of checks and balances is at least adequate and maybe excessive. I say that not just because I support certain forms of government activism that are routinely blocked. From a conservative perspective, too, the proliferation of veto points is an obstacle to reform, accountability, and good government. It gives special interests the power to extract narrow rewards for permitting necessary action. It rewards constant negotiation and procrastination on crucial issues. Thus I have to objection to the president’s taking bold unilateral action, subject to review by Congress and the courts. (Score this one for the President.)

Transparency: Both policies and the reasons for policies should be public and understandable. That is not only a precondition of accountability but also a form of discipline. As Kant and many others have argued, you can’t do many kinds of bad things if you must explain publicly what you are doing and why. Governance is sometimes transparent and sometimes obscure, whether the governing body is the Congress or a regulatory agency, and whether it acts or fails to act. Neither branch seems intrinsically more transparent than the other. If anything, the rules that require public notice and comment and the obligation of agencies to explain their reasoning to courts may make the EPA more transparent than the Congress. (Score a narrow point for the president.)

Rule of law: Laws should establish predictable frameworks for action. Laws should be general and durable. Changes and exceptions are necessary, but they are necessary evils. If revisions and exceptions come to predominate, the rule of law is lost and we have rule by rulemakers. Madison argued that mutable policy “poisons the blessings of liberty itself” (and I expand on his argument here).

Traditionally, this argument favored congressional lawmaking over administrative rulemaking. Passing landmark legislation through any Congress is difficult, and as a result, Congress addresses major topics only rarely. Each time it passes a landmark bill, it creates a structure that lasts for a long time. In contrast, federal agencies, the administrative courts and suboffices that they oversee, and the contractors they employee can constantly adjust their policies. Thus Congress seems, in principle, more likely to make genuine law.

But the actual performance of our Congress matters. Although the frequency with which it passes landmark legislation—liberal or conservative—has fallen dramatically since the 1960s, it has continued to govern and, indeed, to micromanage the rest of the government through constant amendments, resolutions, committee reports that accompany bills, and by larding regular tax and appropriation legislation with irrelevant riders (see this post for details). In contrast, a major new policy enacted by the EPA would be hard to change and might well create a durable framework within which power companies and their customers could plan and operate. (Thus: score one for the president.)

I count the final score as four in favor of administrative action and two against. Clearly, my judgments are contestable. But my main point is that bold executive action on climate change may be appropriate even if one is critical (as I am) of the regulatory state.

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