Does Waxman-Markey have emergency Presidential powers?

posted at 12:15 pm on November 10, 2009 by Ed Morrissey

The Obama administration and the Democrats have begun building a nasty reputation for hiding draconian elements of legislation, from “comparative effectiveness” rationing to potential Internet shut-downs.  Senator David Vitter says he’s found another hidden within the Waxman-Markey bill that has already passed the House that would give Barack Obama the power to declare a national emergency on the basis of greenhouse-gas levels.  If true, it would undermine the entire notion of a cap-and-trade system — and give the President dictatorial powers over energy production and manufacturing. But is it true?

Here’s how: The bills require a federal declaration of a “climate emergency” if world greenhouse gas levels reach 450 parts per million. Guess what? The Pacific Northwest National Lab says it is a virtual certainty that level will be reached within a few months. The bill then requires the president to “direct all Federal agencies to use existing statutory authority to take appropriate actions…to address shortfalls” in achieving needed greenhouse gas reductions.

When Vitter asked EPA Administrator what would be done in such a situation, she refused to say. So it must be asked: Would the president be empowered to do things like nationalize whole sectors of industry, ban coal use, restrict private automobile use, or whatever else the “emergency” requires?

The Examiner’s David Freddoso reports that Sen. David Vitter, R-LA, is holding a news conference later today concerning this provision. Vitter wonders if companies that support cap-and-trade in the hope they will profit from going green realize what could happen to them soon after enactment. More to the point, we wonder what the American people will do when they realize what is actually going on here.

For those companies looking to cash in on Obama’s promise of a “green economy,” the market may disappear before it gets started if this clause gets invoked by Obama, Freddoso argues:

The result is a a scenario in which the law not only permits but in fact requires the president to “direct all Federal agencies to use existing statutory authority to take appropriate actions…to address shortfalls” in emissions cutbacks.

The bill’s language places an unusually broad mandate upon the president to act in the event of this “emergency” situation.” In a letter to Vitter, EPA administration Lisa Jackson wrote that she does not know what her agency would do. “It is premature to describe exactly what additional actions EPA may take until such an analysis is conducted,” she wrote.

But declaration of this “climate emergency” could result in federal agencies denying all discretionary permits for carbon-emitting industries, and EPA itself could impose non-attainment status upon the entire United States. “In that context, the carbon credits won’t matter,” Vitter told me yesterday.

If a future president tries to go easy on industry, environmental groups are sure to litigate based on the clear language in the law, forcing his hand.

“This provision was not focused on to any significant extent during the House debate,” said Vitter. The climate change bill passed the House this summer, hours after hundreds of pages of amendments were added to it. Vitter said he plans to write industry leaders who are supporting the climate bill to ask whether they understand what the bill’s language would do.

The one clearly objectionable part of this is the actual trigger.  It hysterically assumes a disaster at an arbitrary level of greenhouse gases, all of which naturally occur in our atmosphere.  It also assumes that federal control of manufacturing and energy production would cause less disruption and damage than a level of 450 parts per million of carbon dioxide and other gases. Where is the evidence of this cataclysmic occurrence?  How did this level get chosen?  As far as can be seen, it appears to have been selected simply because we will hit that level within a few months.

If what Vitter claims is true, it would have implications of creating a dictator out of the American presidency.  Democrats used to shriek about the “unitary executive” philosophy during the Bush administration, which they poorly understood anyway, but claimed that Bush wanted to make himself into a dictator outside of the control of Congress.  Have those same Democrats have rushed to give the White House vast, unchecked powers over private industry and private capital that might even make Hugo Chavez blush?

Well, not exactly, no.  The language for the trigger exists within Section 705 of the Waxman-Markey bill and its identical twin in the companion Kerry-Boxer bill being floated in the Senate (S1733).  The language is too extensive to copy here, but Section 705 does create a trigger of 450 parts per million of greenhouse gases or “an increase in global average temperature 3.6 degrees Fahrenheit (2 degrees Celsius) above the pre-industrial average” that requires the executive branch to report this status to Congress and to study ways to correct for it.  Section 707 of both bills, also identical, set out the consequences of such a finding:

‘SEC. 707. PRESIDENTIAL RESPONSE AND RECOMMENDATIONS.

(a) AGENCY ACTIONS.—The President shall direct relevant Federal agencies to use existing statutory authority to take appropriate actions identified in the reports submitted under sections 705 and 706, and to address any shortfalls identified in such reports, not later than July 1, 2015, and every 4 years thereafter.

(b) PLAN.—In the event that the Administrator or the National Academy of Sciences has concluded, in the most recent report submitted under section 705 or 706 respectively, that the United States will not achieve the necessary domestic greenhouse gas emissions reductions, or that global actions will not maintain safe global average surface temperature and atmospheric greenhouse gas concentration thresholds, the President shall, not later than July 1, 2015, and every 4 years thereafter, submit to Congress a plan identifying domestic and international actions that will achieve necessary additional greenhouse gas reductions, including any recommendations for legislative action.

So the big consequence is that in 2015, and every four years afterward, the executive branch will have to draft recommendations for legislative action on reducing greenhouse gases. The EPA could certainly operate outside of those parameters, which would give the President at that time a lot of power to dictate certain responses within the regulatory framework — but that power exists now, and is referenced by “existing statutory authority”, which would not mean new dictatorial powers over production. In fact, Obama has threatened to wield it on a few occasions if Congress fails to pass cap-and-trade.

That’s not to say that this bill isn’t dangerous, but it simply doesn’t do what Vitter claims. Nowhere in either bill does the term “climate emergency” appear, which Vitter claims is the lever through which the President will claim dictatorial powers. We need to focus on the real problems of the bill, chief among them that it will kill jobs to solve a problem that doesn’t exist, rather than generate false hysteria to answer false hysteria.


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climate emergency

“Death panels” don’t exist in the healthcare plan either. Those words appear nowhere.

lorien1973 on November 10, 2009 at 12:19 PM

which they poorly understood any

do you mean: anyway?

John the Libertarian on November 10, 2009 at 12:20 PM

Are these people insane???

PatriotRider on November 10, 2009 at 12:20 PM

Lorien, “comparative effectiveness” does exist and takes 22 pages. There is nothing in this bill that gives the President the authority to declare a climate emergency, or to operate outside of the powers he has now through the EPA. It’s a terrible bill, but this isn’t the reason why.

Ed Morrissey on November 10, 2009 at 12:22 PM

John, thanks, I corrected that.

Ed Morrissey on November 10, 2009 at 12:23 PM

Ed if he can declare the swine flu an “emergency, why can’t he do the same with CO2?Sounds crazy, but I wouldn’t put anything past this President and his willing accomplices in Congress.

sandee on November 10, 2009 at 12:26 PM

This bill and the Obamapelosicare both create problems beyond any problems we currently have.
There is no climate crises and there is no untapped green industry. If there is doubt on either of those two statements come to Oregon.
It is all about control and the liberals mean to have as close to complete control as possible.

ORconservative on November 10, 2009 at 12:26 PM

War on terror stalls. War on invisible boogieman moves ahead at full speed. America withers and dies.

fogw on November 10, 2009 at 12:26 PM

Ed if he can declare the swine flu an “emergency, why can’t he do the same with CO2?Sounds crazy, but I wouldn’t put anything past this President and his willing accomplices in Congress.

sandee on November 10, 2009 at 12:26 PM

Especially since swine flu is not a real emergency.

MobileVideoEngineer on November 10, 2009 at 12:27 PM

Will this make forrest fires illegal?

What about decay in forrests?

seven on November 10, 2009 at 12:28 PM

Assuming a power shift in 2010, is it possible to repeal every bit of legislation passed in the prior session?

publiuspen on November 10, 2009 at 12:29 PM

It hysterically assumes a disaster at an arbitrary level of greenhouse gases, all of which naturally occur in our atmosphere.

This is what makes me want to tear my eyes out.

John the Libertarian on November 10, 2009 at 12:29 PM

I was going to rake some leaves this afternoon, but I think I will burn them to get the ball rolling on declaring Martial Law.

I’m in a fightin mood today.

fogw on November 10, 2009 at 12:30 PM

Will this make forrest fires illegal?

What about decay in forrests?

seven on November 10, 2009 at 12:28 PM

What we need is to invent a giant cork for those volcano eruptions.

John the Libertarian on November 10, 2009 at 12:30 PM

Are these people insane???

PatriotRider on November 10, 2009 at 12:20 PM

No, just power mad.

MarkTheGreat on November 10, 2009 at 12:31 PM

In my part of California, it is illegal to burn your fireplace on most cold days. If the air is still or something it keeps the smoke low. Really makes sense when it is cold and your trying to save money using a fireplace for warmth. The only good part for me is in the old lib-hippie areas nearby, most of them only have wood stoves.There are no exceptions.Revenge is sweet in this case.

sandee on November 10, 2009 at 12:31 PM

Ed Morrissey on November 10, 2009 at 12:22 PM

Ed, you defeat your own argument in this post.

But declaration of this “climate emergency” could result in federal agencies denying all discretionary permits for carbon-emitting industries, and EPA itself could impose non-attainment status upon the entire United States. “In that context, the carbon credits won’t matter,” Vitter told me yesterday.

submit to Congress a plan identifying domestic and international actions that will achieve necessary additional greenhouse gas reductions, including any recommendations for legislative action.

I’m not sure what your beef with Vitter here is…

but that power exists now, and is referenced by “existing statutory authority”, which would not mean new dictatorial powers over production.

Well. That’s, uh, nice. I guess.

Besides, this is the real problem he’s talking about:

The bill’s language places an unusually broad mandate upon the president to act in the event of this “emergency” situation.

You, I, Vitter or even the EPA admits that it doesn’t know what it’ll do if the the conditions are met. There are no guidelines given, so -anything- could be enacted after the fact.

The overly broad mandate is the problem. Not some faked up concern over Vitter’s statement.

Your argument in this post is identical (nearly) to people complaining about Palin’s death panels. This one is, in fact, worse. As the mandate is open ended and so broad that anything could happen if the conditions are met.

lorien1973 on November 10, 2009 at 12:32 PM

What we need is to invent a giant cork for those volcano eruptions.

John the Libertarian on November 10, 2009 at 12:30 PM

How about an airborne, volcano lancing laser?

MarkTheGreat on November 10, 2009 at 12:33 PM

“…3.6 degrees Fahrenheit (2 degrees Celsius) above the pre-industrial average…”

Um….wasn’t a significant percentage of the planet covered by ice during large parts of this period?

cthulhu on November 10, 2009 at 12:34 PM

I was going to rake some leaves this afternoon, but I think I will burn them to get the ball rolling on declaring Martial Law.

I’m in a fightin mood today.

fogw on November 10, 2009 at 12:30 PM

I think I’ll cookout, buy a bunch of aerosol sprays and spray it into the air, and I’ll leave my car on in the driveway.

MobileVideoEngineer on November 10, 2009 at 12:34 PM

Obama needs a war that he can declare and then claim victory, all without committing troops, but with the desired effect of killing the economy and spreading the poverty.

BuckeyeSam on November 10, 2009 at 12:36 PM

When Vitter reads the demonrat legislation he reads “dictator wannabe.”

farright on November 10, 2009 at 12:36 PM

It’s amazing how many bills democrats pass that totally do not give Obama a way to control various aspects of our lives. They are just writing nonsense down and trying to pass it for giggles.

lorien1973 on November 10, 2009 at 12:38 PM

But declaration of this “climate emergency” could result in federal agencies denying all discretionary permits for carbon-emitting industries, and EPA itself could impose non-attainment status upon the entire United States. “In that context, the carbon credits won’t matter,” Vitter told me yesterday.

So now Dear Liar is channeling His inner Pol Pot?

Does The Whine really want to return us to the Middle Ages, with its agrarian based economy, with serfs tied to the land? (he asks rhetorically).

rbj on November 10, 2009 at 12:39 PM

What we need is to invent a giant cork for those volcano eruptions.

John the Libertarian on November 10, 2009 at 12:30 PM
How about an airborne, volcano lancing laser?

MarkTheGreat on November 10, 2009 at 12:33 PM

My kid saw one once on Little Einstein

ConservativePartyNow on November 10, 2009 at 12:39 PM

The President shall direct relevant Federal agencies to use existing statutory authority to take appropriate actions identified in the reports submitted under sections 705 and 706

The problem is in the above verbiage.

There are some VERY strange and heinous things in some of the FEMA regualations… and some laws written during the Cold War, where the President CAN in an Emergency take dictator powers.

The above does not LIMIT them to actions under current climate change laws, but could be interpreted to Open up the entire Cold War Nuclear War Emergency Powers of the President, as they ARE “existing statuaotory authority” given to the President in Emergencies.

This language essentialy makes CO2 going above 450 ppm the same level of Emergency as a Nuclear War (or, it can be read that way).

Remember, these are the same folks who took the term General Welfare, and use it to justify taking over HUGE parts of the Economy.

Romeo13 on November 10, 2009 at 12:41 PM

Assuming a power shift in 2010, is it possible to repeal every bit of legislation passed in the prior session?

publiuspen on November 10, 2009 at 12:29 PM

Possible? Yes…

Will the Repubs do it if not FORCED? no… they will just say “You can trust of with these powers…”

Romeo13 on November 10, 2009 at 12:42 PM

How about an airborne, volcano lancing laser?

I shall call it The Alan Parsons Project………and, it’s a volcano lancing “laser“.

Jerome Horwitz on November 10, 2009 at 12:43 PM

Folks, this is scary enough.

HOWEVER, couple Obama’s past radical statements about energy(documented) you have a real problem.

Couple that with all of these “SMART” energy technologies and you have the potential for one person to control EVERYTHING. Energy is the life blood of America.

Radical megalomaciacal President + Emergency Powers + centrally controllable energy? Um, that’s not good.

marklmail on November 10, 2009 at 12:43 PM

Remember, these are the same folks who took the term General Welfare, and use it to justify taking over HUGE parts of the Economy.

Romeo13 on November 10, 2009 at 12:41 PM

To people like Allah and Ed, that doesn’t matter. It’s kind of like the MSM and Obama, we can’t jump to conclusions. We are not allowed to use previous examples or facts to piece the puzzle together and get a clear picture of what’s really going on. We must take everything on a case by case basis.

MobileVideoEngineer on November 10, 2009 at 12:44 PM

rbj, the answer to that is yes. Obama envisions a United States that has us all living in huge apartment complexes in big metropolis with public transportation and work”stations” nearby. Then if we’re lucky we can ride our bikes to the outskirts of these gulags and view, from a distance mind you, the rural countryside that we once called home.Far fetched you say? Not really, for that is what socialist utopias look like in their minds.Oh, but don’t think they will live like us, on the contrary like the old Soviet leaders and elite they will have their little “summer” homes.

sandee on November 10, 2009 at 12:45 PM

Are these people insane???

PatriotRider on November 10, 2009 at 12:20 PM

No, they’re communists. Communists have learned that brute force may not always be the best way to subdue and control a nation and it’s people.

An invented “crisis”, giving the government vast, unchecked power is now the preferrable route to installing communism.

darwin on November 10, 2009 at 12:46 PM

Assuming a power shift in 2010, is it possible to repeal every bit of legislation passed in the prior session?

publiuspen on November 10, 2009 at 12:29 PM

Are you assuming that we are going to elect Republicans who are not also power hungry control freaks?

myrenovations on November 10, 2009 at 12:49 PM

Ed continues to naively assume that the precedent has to act within the constitution or the actual limiting authority of any law. Why? Who’s going to stop him…Congress?…SCOTUS?

SKYFOX on November 10, 2009 at 12:50 PM

What is going on with this country? When did we go crazy?

UncleZeb on November 10, 2009 at 12:51 PM

The EPA has already declared CO2 is a pollutant so the government can already act through the Clean Air Act to regulate CO2 emissions. Waxman Malarkey just helps to set the actionable level IMHO.

GnuBreed on November 10, 2009 at 12:53 PM

So.. say a volcano blows in my state…. it is now an CO2 emissions emergency?

There is no reason for Federal Government to get involved with States nor should there be mandates on things we can’t control.. like natural disasters or weather.

Some people need a smack upside the head.

upinak on November 10, 2009 at 12:54 PM

What is going on with this country? When did we go crazy?

UncleZeb on November 10, 2009 at 12:51 PM

Read “Liberal Fascism”. It’s taken decades for the progressives communists to take control. They will not back down, not on health care, not on Cap & Trade … they are too close.

They will force these programs down our throats … I guarantee it.

darwin on November 10, 2009 at 12:55 PM

MobileVideoEngineer on November 10, 2009 at 12:34 PM

I was thinking we had been warned about the evils of aerosol back when I was in middle school…something about it causing global cooling & we were all “advised” by our teachers to use roll on deodorant and pump hair sprays.

Environmentalists, making stuff up as they go along since at least the 1970′s.
*insert the Native American with a tear commercial here*

tehd on November 10, 2009 at 12:56 PM

They won’t stop until we’re all riding bicycles and dressed in Mao jackets.

FreakyBoy on November 10, 2009 at 12:58 PM

Two things:

a.) As certain as night follows day, friends of the government will be rewarded and foes shut down, all in the name of “saving the planet”. The opportunity will simply be too great, and we have strayed too far from innate revulsion at deviancy from the rule of law. The spiral of corruption will only grow.

b.) I claim, quite simply, that under the Constitution the Congress has no right to make such a law, neither for emergency powers, nor for the entire Cap and Trade effort. Perhaps I’m wrong–show me where then, and please do not point out the Preamble. The Preamble is not a clause that authorizes power to Congress, else there would have been no need for Article 1. So once again, show me where. And if one cannot, then one needs to propose an amendment.

We are going to have it out in our time whether this is a Constitutional Republic or one by legislative fiat. Right now, it is is by fiat.

Horatius on November 10, 2009 at 12:58 PM

He who controls the language controls the argument and it seems would now control every aspect of our lives. I for one believe Vitter’s position is correct whether or not it is specifically laid out word for word in this legislation or not. Mainly I believe Vitter is correct because Crap and Tax is going to have a difficult time in passing and our Dictator in Chief has said he does not like capitalism, the Constitution and thinks America is a low down dirty country. See all his speeches as a reference. And lest we forget his comments about not everyone should be allowed to have their homes at 72 degrees, or should be allowed to eat whatever they wanted to eat.

And if this does not fly, President Chutes&Ladders plans on going the way of the nuts gathering in Copenhagen. By hook or by crook the “demonrats” are going to control each American’s every move. Sometimes it is the intent, the goal stated and the history of a person which indicates where that person is going with legislation like this. All the Democrats affiliated with this bill have echoed the same sentiment as Obama when it comes to environmentalist whacko legislation.

freeus on November 10, 2009 at 1:00 PM

The purpose of Cap and trade was not and is not to reduce our carbon footprint, we admit our carbon output is going to increase, but by getting it (industry/economy) under government control we can maybe manage to slow the increase.
Wait… maybe Im confusing this bill with another bill, what are we discussing?

Koa on November 10, 2009 at 1:01 PM

So . . . Vitter’s a ‘scaremonger’.

And you’re ‘trusting’ Obama to behave prudently with ‘open-ended’ [vaguely defined] authority?

Did somebody slip something into your coffee Ed?

CPT. Charles on November 10, 2009 at 1:08 PM

CPT. Charles on November 10, 2009 at 1:08 PM

I know, right? Ed is weird sometimes.

lorien1973 on November 10, 2009 at 1:09 PM

So . . . Vitter’s a ’scaremonger’.

And you’re ‘trusting’ Obama to behave prudently with ‘open-ended’ [vaguely defined] authority?

Did somebody slip something into your coffee Ed?

CPT. Charles on November 10, 2009 at 1:08 PM

Sadly, I think he’s trying too hard (almost going over the top) to keep conspiracy theories away from the site.

This is truly sad because 90% of this is not conspiracy. Now I’m not the type to agree with that idiot that said the Fort Hood shooting was a plot by the government, but it’s no conspiracy that Obama and the progressives (democrat and republican) want to rule this country and control everything we do.

MobileVideoEngineer on November 10, 2009 at 1:19 PM

freeus @ 1PM is correct: Obama’s radical liberals will act on any sliver of supposed authority, and they will do it by executive order or regulation. Any opposition would then have to be raised in federal court, which is being loaded up with liberals, and which will give great deference to executive decisions.
There is nothing that this administration will do that should surprise a reasonable person. They have signaled that they will do whatever they want, regardless of the law or the feelings of the American public.

GaltBlvnAtty on November 10, 2009 at 1:23 PM

Seriously Ed, since when did this precedent ever care one bit about the law regarding the the can’s and cant’s of presidential powers. He already chose to govern via czars and the likes effectively bypassing congressional oversight.
Already proven is that Obama and his minions are outright liars. Do you expect him to just bitch about the CO2 levels or do you foresee that he’ll take any option necessary to achieve his goal of destroying the nation? I’ve got half of bridge for sale.

larvcom on November 10, 2009 at 1:23 PM

The bill then requires the president to “direct all Federal agencies to use existing statutory authority to take appropriate actions…to address shortfalls” in achieving needed greenhouse gas reductions.

You know the defense department is a federal agency, it could take steps to reduce emissions, for example bombing Iran’s oil refineries to reduce the amount of gasoline they are able to produce and consume.

agmartin on November 10, 2009 at 1:26 PM

This is truly sad because 90% of this is not conspiracy.

MobileVideoEngineer on November 10, 2009 at 1:19 PM

Thats just it… they came IN saying they wanted to fundamentaly change the way this country works.

Now, they are doing it through the Law…

No Conspiricy… conspiricys are done in Secret… these moves are hiding in Plain SIGHT…

Romeo13 on November 10, 2009 at 1:27 PM

I really do want to once again state that I believe that using the “General Welfare” clause of the Preamble to have always have been illegitimate. The active phrase (and you will have to pardon me–diagramming sentences and paragraphs was never a strong suit) the active phrase of the Preamble is “do ordain and establish this Constitution of the United States of America.” It is not “do ordain upon the government the power to make theses motivations realizable.” Thus, the words of the Preamble are simply the discussion of why the people ratified the Constitution, and if they meant “general welfare” to mean what today we take it to mean, then why then did they not provide enumerated powers to do so in article 8? They seemed to be fully able to be quite specific when they wanted to do something, so why is there no enumerated power? Perhaps because it is not something they wanted the Federal Government to do, hmm? Then why do we have the government do it?

And in the great Ratification debates, if the founding generation had genuinely meant for legislation to be able to be made at the federal level for “general welfare” of the social kind, then surely there would have been discussion on it, either pro or con? They discussed everything else, didn’t they? So if there is no discussion in the debate, then using the Preamble as a justification would be the basest kind of intellectual sophistry.

The Preamble is simply not a clause that one can take words out of to hang legislation on. Period. We do so because people wish to do so, want to do so, find it convenient to the will, because they wish the legislation, and integrity be the one to be hanged, not the legislation. As was once said, “a long habit of not thinking a thing wrong, gives it a superficial appearance of being right, and raises a formidable outcry in defence of custom.” Even so with the expansion of the Federal powers since the New Deal.

This expansion may be a wise thing, it may not, but it clearly is not authorized by the Constitution and it is time we grew up, admitted that fact, and started rationally discussing what governments should do, and at which level–local, state, or federal–they should do it.

Else, we will find that the Constitution is not a bulwark of our liberties against new forms of state tyranny and corruption because the main form of defense it provided for us–preventing abuse of power by not authorizing the government from being able to do potentially tyrannical acts to start with–we long ago abandoned as “quaint”, and now, even as with men on a ship that has drifted near a lee shore and the wind being against, we are are rapidly trying to figure out how to safely anchor and the storm ride out.

But we may find that unless we forthrightly demand that a logical course of action be set upon and the ship properly manned and steered, we will find ourselves wracked upon the rocks, castaways of liberty marooned on a desert isle, never to return to the ports of that shining city upon a hill, another frail ark of liberty stove in by the great Leviathan that is power. Sad is the fate, and sad will be our fate, unless we start showing firm resolve that not everything Congress wishes Congress gets to do.

Horatius on November 10, 2009 at 1:28 PM

You know the defense department is a federal agency, it could take steps to reduce emissions, for example bombing Iran’s oil refineries to reduce the amount of gasoline they are able to produce and consume.

agmartin on November 10, 2009 at 1:26 PM

Nice work thinking outside the box.

GnuBreed on November 10, 2009 at 1:33 PM

Horatius on November 10, 2009 at 1:28 PM

We are to the point in this Great Nation, where we need to have a debate on What the Constitution is… ie… a limited Government document as our Founders wanted? or a Document that gives unlimited Federal Power, as the Federal Government, through its own Courts, have interpreted it to be.

IMO, this is the next great debate, but NEITHER of the entrenched Political Parties want this debate, as they have BOTH been guilty of abusing the Constitution.

Early on, there were three checks on Constitutional Power… the Seperation of Powers of the Federal Government, the States through the Senate and their ability to LEAVE the Union, and the People through Grand Jurys.

Grand Jurys were neutered by Federal Law.

States being directly represented in the Senate was destroyed by Constitutional Amendment.

States leaving the Union was destroyed by the Civil War.

Thus, there is NO check left on Federal Power, which is NOT in Federal hands.

This condition is unstable, and as its in Governments NATURE to try to gain more power (for the public good of course /sarc), and because NO Government has EVER given up power unless forced?

I’m sure I’m already on watch lists somewhere… so I will just say… We will live in Interesting Times… in the Chinese curse meaning…

Romeo13 on November 10, 2009 at 1:38 PM

It’s like watching the blind, lead the stupid!

capejasmine on November 10, 2009 at 1:39 PM

Here’s how: The bills require a federal declaration of a “climate emergency” if world greenhouse gas levels reach 450 parts per million. Guess what? The Pacific Northwest National Lab says it is a virtual certainty that level will be reached within a few months.

It depends on where the CO2 level is measured. Most scientists (on both sides of the issue) use the observations on Mauna Loa in Hawaii as the benchmark CO2 level, which is right now about 389 ppm and rising about 1 ppm per year. It may eventually reach 450 ppm (until CO2 absorption by plants catches up with emission rates), but long after Obama is out of office, unless Der Obamafuhrer convinces Congress and 38 state legislatures to repeal the 22nd Amendment.

Vitter does have a point that we shouldn’t give the President too much power to impose draconian restrictions based on some “scientific” measurement. For example, who decides WHICH “global average temperature” is to be used to determine whether temperatures have risen 3.6 F over “pre-industrial” levels? There are many different “averages” which use different methods and include different datasets, and how can one ensure that the “pre-industrial” levels used for comparison used the same monitors with the same accuracy, without any bias in the data?

If such draconian powers are vested in one person, what’s to prevent Obama or some future crooked President from shaking a soda bottle under a CO2 monitor, spraying it with concentrated CO2 and then declaring a national emergency based on fudged data?

This bill, like the PelosiCare, needs to be killed in the Senate.

Steve Z on November 10, 2009 at 1:45 PM

The language is too extensive to copy here, but Section 705 does create a trigger of 450 parts per million of greenhouse gases

Ed, while it says “gases”, they are talking specifically about CO2. No other GHG is at that level, so we know that much.

The Pacific Northwest National Lab says it is a virtual certainty that level will be reached within a few months.

I am sorry, but that is not true. I have no idea who at that lab said that, but they are way off the mark. Here are the numbers for the 49 years we have been collecting data for CO2 from Hawaii:

Annual Mean
Growth Rate
Mauna Loa, Hawaii
http://www.esrl.noaa.gov/gmd/ccgg/trends/
Raw data: ftp://ftp.cmdl.noaa.gov/ccg/co2/trends/co2_gr_mlo.txt

year ppm/yr

1959 0.95
1960 0.51
1961 0.95
1962 0.69
1963 0.73
1964 0.29
1965 0.98
1966 1.23
1967 0.75
1968 1.02
1969 1.34
1970 1.02
1971 0.82
1972 1.76
1973 1.18
1974 0.78
1975 1.10
1976 0.92
1977 2.09
1978 1.31
1979 1.68
1980 1.80
1981 1.43
1982 0.72
1983 2.16
1984 1.37
1985 1.24
1986 1.51
1987 2.33
1988 2.09
1989 1.27
1990 1.31
1991 1.02
1992 0.43
1993 1.35
1994 1.90
1995 1.98
1996 1.19
1997 1.96
1998 2.93
1999 0.94
2000 1.74
2001 1.59
2002 2.56
2003 2.29
2004 1.56
2005 2.55
2006 1.69
2007 2.17
2008 1.66

Total: 70.84 ppm / 49 # years = 1.44 ppm/year average

At the average of 1.44 ppm per year, it will take 44 years to get to 450 ppm. At 2 ppm a year, it will take 32 years. The scientist that they talked to does not know what he is talking about. That is part of the problem with this issue, scientists who distort reality.

Patriot Vet on November 10, 2009 at 1:53 PM

After nearly a year of undeterred naked power grabs this administration has embarked upon, I fail to why anyone is willing to give them the benefit of doubt that their subsequent are any thing less than a continuation of this policy. The extent of their ambitions to exercise control over most every facet of our lives is truly breath-taking. It is easy to get lost in the trees without grasping the extent of the forest they are planting when focusing on just this bill or that, but when taken its totality it is down-right frightening! The pieces for our republic to be transformed into an authoritarian, bureaucratic busy-body of tyrannical proportions is becoming harder to deny.

Take this into consideration from a big picture paradigm:

The House has passed legislation regulating your home garden, will drive the small/family farmer out of business and effectively asserted control over our food supply.

http://www.ftcldf.org/news/news-02mar2009.htm

With the creation atop our Trillions of barrels of our shale-oil reserves, virtually assures foreign dependancy for as far as the eye can see.( http://wildmustangcoalition.org/ )Usually the EPA takes under review 1-2 applications for endangered status of a species per year, with requisite land set asides reccommended. As of July that has jumped to 760 so far this year. This is nothing less than the commandeering of our natural resources, be they on private or public lands.

Your ability to clean out your attic and/or garage to raise extra cash in these hard times, is also soon to be verbotten. They have effectively outlawed the sale of your personal belongings in the name of “the children”, of course.

http://reason.com/blog/2009/05/07/your-yard-sale-is-illegal

The healthcare fiasco has been covered ad nauseum, but suffice it to say that once they become responsible for your health costs, they will have a right
to insure that you lead a “healthy” lifestyle, as Ebelious made clear with their intent to outlaw smoking in the services.

With the authority to monitor, regulate and allot energy consumption, they take over all aspects of modern life.

With each weekend they take over ever more banks seizing control of our mortgages, and therefore our homes, which as of 9/1/09 was already 56% percent of all households in the US.

They are now working to nationalize our educational system even further, damn near making it complete, with assumpumtion of all student loans.

With proposed bailout of newspapers and diversity regs over our media and the internet through supposed “net-neutrality”, we have the de facto take over of allowable information.

Through the ever expanding efforts of Barney Frank, usurpation of the fincial system, and thus all the assets contained there-in. In other words, our money!

Though I am sure I forgotten something and left it out, let us review what we have so far, Gov’t in absolute control of:

1) Food…check!

2) Natural resources…check!

3) Personal belongings…check!

4) Health maintenance…check!

5) Homes/mortgages…check!

6) Education …check!

7) Information access…check!

8) Ability to flee the building nightmare, i.e. liquid assets…check!

If this isnt the definition of a totalitarian usurpation of everything, I don’t know what would be!

TEAM OBAMA HAS NOT EARNED THE BENIFIT OF DOUBT!

Archimedes on November 10, 2009 at 1:59 PM

If this isnt the definition of a totalitarian usurpation of everything, I don’t know what would be!

TEAM OBAMA HAS NOT EARNED THE BENIFIT OF DOUBT!

Archimedes on November 10, 2009 at 1:59 PM

Sometimes I fear that the HotAir “leadership” has gone full blown RINO.

MobileVideoEngineer on November 10, 2009 at 2:01 PM

Patriot Vet on November 10, 2009 at 1:53 PM

Glad you put that. Last numbers I recall seeing, we were ~388 ppm or so. Of course, in that time frame, we might have the ‘smart grid’ in place, and they could do the controlling that way. Somehow, I don’t think they’ll wait that long.

bikermailman on November 10, 2009 at 2:07 PM

Good Lord, these people need to go………

ultracon on November 10, 2009 at 2:17 PM

Romeo13 on November 10, 2009 at 1:38 PM

I am not sure I agree with you on state secession being a designed check (if that was your implication), tho’ it be a functional one. The Civil War removed secession as an factor only via military force, not because an argument was conclusively decided on a rational plane about what the defences of liberty should be. Instead, the argument was abandoned–until now. Having said that, it’s not something I’ve ever really thought about or avocated, especially for now.

I highly agree with you that grand juries–and to that matter, juries–should be a check on the power of the state. And the fact that I am routinely using the word “state” now instead of “government” unfortunately means that I feel that the government, to a certain extent, has divorced itself from the people. For in America the government and people should be as one, and there should be no “state”. But if the solons are going to make laws for the people despite the objections of the people, because they feel that the people must be taken care of despite themselves, and that the solons now better, then we have a “state”, and not a government, for the government has sundered itself from the people and has decided to rule them, not be of them. In America it is supposed to be “of, by, for” the people, not just “for”.

As far as watchlists, perhaps in a few disjointed precincts of the Department of Justice and Homeland Security populated by liberals who will excuse a Bill Ayers or Hasan on one hand and keep tabs on a “Romeo13″ with another, even as their mouths revolt at the idea of uttering the name “J. Edgar Hoover”. In time this threat will grow, but as for the moment I do not think it a serious one.

I believe the real trouble lies with the various leftist groups that the Democratic party finds useful, of the ilk of ACORN, SEIU, etc; as well as bloggers and political operatives. I have no doubts there that they constantly look for ways to discredit opponents, and constantly keep tabs on what they say so that the words can come back to haunt them. Well, fair enough.

And as the efforts of those who favor LGF shows, sometimes when the words are not there they will be manufactured. I think if this Republic is going to live the methods of Alinsky are going to have be shunned.

But what I really wonder about is if any of these efforts go beyond mere keeping track of what pseudonym A said about X. Do our friends on the left, perchance, get a little more “active”? Are there private eye snoops going around, that kind of thing? Some would call this paranoid, but on the other hand, a political culture and faith that will countenance allowing someone not to be charged with a crime because he has helped your cause (Andrew Sullivan); a political culture that only sotto voce condemns union goons beating up protesters (Gadney incident); a political culture that drives supporters to bite off the fingers of health-care protesters (Thousand Oaks, CA); is one that will not blanche at making sure that those who could one day be of impact in politics will be oppo’d and discredited long before they ever become a threat. Alinsky, after all, is at heart a book of the left. Why then should we not believe that they do not follow its precepts to their logical conclusion?

The Carrie Prejean video tape is perhaps only the latest case of this trend. Regardless of whether she reduced her lawsuit demands or no, that video was going to be released by those lawyers–and those that gave it to them–simply because they either did not like her personally or they did not like he politics, and wanted to kill her socially. And so they have.

I think we are at the point where there is a critical mass out there of those who fully embrace the idea that only avowed liberals have the functional right to privacy. All others will be destroyed socially, must be destroyed socially, for the “good of the cause”. And that’s the humor of it, though I find it be a bad humor, and not good; a rank swampy miasma that will in the end cause great illness in the body politic.

Horatius on November 10, 2009 at 2:37 PM

Remember a few months ago when we all thought the president didn’t have the authority to steal GM for the Auto Workers from the bond and stock holders. This guy reads whatever is his fancy into laws and gets away with it.

burt on November 10, 2009 at 3:02 PM

Patriot Vet on November 10, 2009 at 1:53 PM

Glad you put that. Last numbers I recall seeing, we were ~388 ppm or so.

Not quite to 388, maybe in 2010. They will not have this years numbers for a couple of months.

The last nine years: ftp://ftp.cmdl.noaa.gov/ccg/co2/trends/co2_annmean_mlo.txt
2000 369.40
2001 371.07
2002 373.17
2003 375.78
2004 377.52
2005 379.76
2006 381.85
2007 383.71
2008 385.57

Of course, in that time frame, we might have the ’smart grid’ in place, and they could do the controlling that way.

The Smart Grid is going to take quite some time to get online. And yes, they most certainly will be able to control your power use through that. But it really doesn’t matter since power companies have already been doing just that. To save the planet….of course!

Mich. Investigates Freezing Death of 93-Year-Old
By SCOTT MICHELS
Jan. 27, 2009—
The Michigan Attorney General’s Office is reviewing the case of a 93-year-old man who died of hypothermia after a municipal power company restricted his use of electricity.

The temperature inside his house was below 32 degrees and the water in the kitchen sink had frozen, said Dr. Kanu Virani, the Oakland County deputy chief medical examiner who performed the autopsy on Schur.
Virani said he believes Schur died a slow, painful death.

But Belleman told the AP that a city utility worker had installed a limiter to restrict the use of power at Schur’s home. A limiter controls the amount of power used by a home and can blow out like a fuse if consumption rises past a set level. Power is not restored until the device is reset.
http://www.abcnews.go.com/TheLaw/story?id=6740934&page=1

Patriot Vet on November 10, 2009 at 3:22 PM

SEC. 705. REVIEW AND PROGRAM RECOMMENDATIONS.
`(f) Recommendations-

`(1) LATEST SCIENTIFIC INFORMATION- Based on the analysis described in subsection (a)(1), each report under subsection (a) shall identify actions that could be taken to–

`(A) improve the characterization of changes in the earth-climate system and impacts of global climate change;

`(B) better inform decision making and actions related to global climate change;

`(C) mitigate risks to natural and social systems; and

`(D) design policies to better account for climate risks.

`(2) MONITORING, REPORTING AND VERIFICATION- Based on the analysis described in subsection (a)(2), each report under subsection (a) shall identify key gaps in measurement, reporting, and verification capabilities and make recommendations to improve the accuracy and reliability of those capabilities.

…(C) possible strategies and approaches for achieving additional reductions.

`(g) Authorization of Appropriations- There are authorized to be appropriated to carry out this section such sums as may be necessary.

`SEC. 706. NATIONAL ACADEMY REVIEW.

`(a) In General- Not later than 1 year after the date of enactment of this title, the Administrator shall offer to enter into a contract with the National Academy of Sciences (in this section referred to as the `Academy’) under which the Academy shall, not later than July 1, 2014, and every 4 years thereafter, submit to Congress and the Administrator a report that includes–

…`(4) review and compare the emissions reduction potential, commercial viability, market penetration, investment trends, and deployment of the technologies described in paragraph (3), including–

`(A) the need for additional research and development, including publicly funded research and development;

`(B) the extent of commercial deployment, including, where appropriate, a comparison to the cost and level of deployment of conventional fossil fuel-fired energy technologies and devices; and

`(C) an evaluation of any substantial technological, legal, or market-based barriers to commercial deployment.

`(d) Recommendations-

`(1) LATEST SCIENTIFIC INFORMATION- Based on the review described in subsection (a)(1), the Academy shall identify actions that could be taken to–

`(A) improve the characterization of changes in the earth-climate system and impacts of global climate change;

`(B) better inform decision making and actions related to global climate change;

`(C) mitigate risks to natural and social systems;

`(D) design policies to better account for climate risks; and

`(E) improve the accuracy and reliability of capabilities to monitor, report, and verify greenhouse gas emissions reduction efforts.

`(2) TECHNOLOGICAL INFORMATION- Based on the analysis described in subsection (a)(2), the Academy shall identify–

`(A) additional emissions reductions that may be possible as a result of technologies described in the analysis;

`(B) barriers to the deployment of such technologies; and

`(C) actions that could be taken to speed deployment of such technologies.

`SEC. 707. PRESIDENTIAL RESPONSE AND RECOMMENDATIONS.

`(a) Agency Actions- The President shall direct relevant Federal agencies to use existing statutory authority to take appropriate actions identified in the reports submitted under sections 705 and 706, and to address any shortfalls identified in such reports, not later than July 1, 2015, and every 4 years thereafter.

`(b) Plan- In the event that the Administrator or the National Academy of Sciences has concluded, in the most recent report submitted under section 705 or 706 respectively, that the United States will not achieve the necessary domestic greenhouse gas emissions reductions, or that global actions will not maintain safe global average surface temperature and atmospheric greenhouse gas concentration thresholds, the President shall, not later than July 1, 2015, and every 4 years thereafter, submit to Congress a plan identifying domestic and international actions that will achieve necessary additional greenhouse gas reductions, including any recommendations for legislative action.

I dunno. If it’s innocent it seems the biggest Congressional power grab since the Tenure of Office Act, since it orders the President to direct his Cabinet as Congress sees fit. (by contrast, the AUMF on Iraq gave Bush options; the Freedom of Information Act addresses federal agencies directly. Barack Obama cannot draft an executive order that “Congress shall direct its committees…”) Taken literally, a President Limbaugh would not be permitted to refuse to direct the Department of Energy to use eminent domain against power plants.

That seems a lot less likely than Vitter’s simple explanation. If the EPA reports we’re not winning the war on Global Warming, and the National Academy reports it would really help electric cars if all gas-guzzlers were imported because nobody made them in America (“market-based barriers to commercial deployment”) and suggest the Treasury Department (“relevant Federal agencies”) through TARP to roll US auto makers into a industrial board to achieve the same mission Obama set out for Government Motors (“actions that could be taken to speed deployment of such technologies”), it wouldn’t matter if Rush Limbaugh were President, he “shall direct relevant Federal agencies to use existing statutory authority to take appropriate actions identified in the reports submitted under sections 705 and 706″. If Obama is still President, there’d be no reluctance at all.

So I guess it comes down to how brazen you think Washington could get.

Chris_Balsz on November 10, 2009 at 3:33 PM

Or even simpler: some unelected Gore disciple reports that we missed the target, and it would help if fossil-fuels production on federal lands were reduced by 50% next year. BAM.

Chris_Balsz on November 10, 2009 at 3:42 PM

What is going on with this country? When did we go crazy?

UncleZeb on November 10, 2009 at 12:51 PM

1964

davidk on November 10, 2009 at 4:06 PM

What makes anyone think they care about actual “triggers”? All they have to do is say that something has happened and it is so!

The fawning media and all the other usual suspects would take it seriously and run with it.

Dr. ZhivBlago on November 10, 2009 at 4:39 PM

Ed:

If you examine the sweep of the “existing statutory authority” which the President “shall direct relevant Federal agencies to use” — in order to take the “appropriate actions” specified in its own reports — you might not be so sanguine about potential havoc, or so dismissive of Vitter’s objections.

Patriot Vet:

Don’t be misled by an unlikely threshold for the trigger in question. That number can be amended any time ex post facto in the blink of an eye. Happens all the time.

JM Hanes on November 10, 2009 at 6:12 PM

Patriot Vet:

Don’t be misled by an unlikely threshold for the trigger in question. That number can be amended any time ex post facto in the blink of an eye. Happens all the time.

JM Hanes on November 10, 2009 at 6:12 PM

JM,

Thanks for the concern, but I am far from being misled by any person who believes AGW. I was merely pointing to the shoddy science that the purported “scientist” used in claiming that CO2 could reach 450 ppm in a few months. It always seems that they ignore reality, for some modeled world that suits them best.

You are correct in that they will most certainly lower their “target” so as to be able to implement their domination over our lives. That is all the more reason that this pile of manure, the Climate Bill, should be defeated.

Patriot Vet on November 10, 2009 at 7:21 PM

We are to the point in this Great Nation, where we need to have a debate on What the Constitution is… ie… a limited Government document as our Founders wanted? or a Document that gives unlimited Federal Power, as the Federal Government, through its own Courts, have interpreted it to be.

IMO, this is the next great debate, but NEITHER of the entrenched Political Parties want this debate, as they have BOTH been guilty of abusing the Constitution.

Romeo13 on November 10, 2009 at 1:38 PM

Wouldn’t this just give the opportunity to shove the Constitution aside? I say, no debate; rather, a firm reminder of its authority. Also, a reminder of how our government, i.e., checks and balances, should run.

I do enjoy reading your opinion. That of Horatius too.

fullogas on November 10, 2009 at 10:21 PM