What happens when two Constitutional law scholars collide? Usually, the more learned of the two prevails, but don’t bet on it in this case. Harvard University Professor Lawrence Tribe, described as a mentor to Barack Obama, accused his protege of “burning the Constitution” in the EPA’s efforts to regulate carbon dioxide. Speaking to a hearing of the Energy and Power subcommittee of the House Energy and Commerce panel on Monday, Tribe blasted the EPA and the Obama administration for running roughshod over the separation-of-powers doctrine, a concept that can best be described as ConLaw 101:

“EPA possesses only the authority granted to it by Congress,” Tribe told lawmakers in a hearing Tuesday. “Its gambit here raises serious questions under the separation of powers… because EPA is attempting to exercise lawmaking power that belongs to Congress and judicial power that belongs to the federal courts.”

“Burning the Constitution should not become part of our national energy policy,” Tribe added.

Tribe, along with other legal and energy experts, appeared before Congress Tuesday to give testimony on the EPA’s “Clean Power Plan” — the agency’s plan to cut carbon dioxide emissions from new and existing power plants. Tribe told lawmakers the CPP is unconstitutional and outside the agency’s authority.

“EPA is attempting an unconstitutional trifecta: usurping the prerogatives of the States, Congress and the Federal Courts all at once,” Tribe told lawmakers.

Tribe’s written testimony repeatedly warns about Obama’s attempt to usurp Congressional authority, the jurisdiction of the federal courts, and state sovereignty:

EPA lacks the statutory and constitutional authority to adopt its plan. The obscure section of the Clean Air Act that EPA invokes to support its breathtaking exercise of power in fact authorizes only regulating individual plants and, far from giving EPA the green light it claims, actually forbids what it seeks to do. Even if the Act could be stretched to usurp state sovereignty and confiscate business investments the EPA had previously encouraged and in some cases mandated, as this plan does, the duty to avoid clashing with the Tenth and Fifth Amendments would prohibit such stretching.

EPA possesses only the authority granted to it by Congress. It lacks “implied” or “inherent” powers. Its gambit here raises serious questions under the separation of powers, Article I, and Article III, because EPA is attempting to exercise lawmaking power that belongs to Congress and judicial power that belongs to the federal courts. The absence of EPA legal authority in this case makes the Clean Power Plan, quite literally, a “power grab.”

EPA is attempting an unconstitutional trifecta: usurping the prerogatives of the States, Congress and the Federal Courts — all at once. Burning the Constitution should not become part of our national energy policy.

Tribe specifically mentions the Chevron decision, which is also at play in the King v Burwell case before the Supreme Court this session:

EPA’s effort to invoke Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. as a basis for deferring to the agency’s decision about which of two possible congressional enactments to treat as law rests on a complete misunderstanding of Chevron. Deference to an agency under Chevron is triggered only by a statutory ambiguity – that is, by the existence of more than one possible meaning in the language that appears in a statutory provision enacted by Congress, a provision that all accept as the starting point for analysis. Chevron deals only with the degree of deference an agency should receive when it resolves an ambiguity the national legislature has left in the law it has charged the executive agency with enforcing; Chevron has no bearing on an agency’s entirely different (and illegitimate) power to decide for itself what law Congress has enacted.

Chevron apart, if there were indeed two versions of the statute, a mere agency (like EPA) clearly wouldn’t have power to pick between them to “say what the law is.” That’s either a usurpation of Congress’s power under Art. I or of the Judiciary’s power to say what the law is under Art. III – or both. It’s not often that an agency manages to engineer a power grab that simultaneously usurps not just the constitutional authority of the States but also the constitutional authority of both Branches of the Federal Government outside the Executive (while also violating the Fifth Amendment to boot), but EPA proposes to do exactly that. So, far from helping to rescue the EPA’s plan from constitutional infirmity, this peculiar assertion of power to choose a version of the statute more favorable to its position embroils EPA in an even deeper
multiple violation of the Constitution.

Tribe actually believes Chevron should allow HHS to prevail in King for the same reason, although the statutory ambiguity is arguably minimal in the definition of “state” in the ACA. Jonathan Adler picks up on the same point:

Professor Tribe believes the government should prevail in King, and thinks the federalism arguments could make the difference. I obviously disagree. Where Professor Tribe and I agree, however, is that if the King plaintiffs’ interpretation of the ACA is coercive, then so too is the EPA’s interpretation of the CAA.

John Hinderaker notes that progressives are attacking Tribe for working with an energy producer to make this argument, and responds with a better question:

Is administrative law unlawful? There is a substantial argument that it is. More narrowly, it can hardly be denied that what the EPA is doing, in attempting to refashion the nation’s electric power production system with no authorization from Congress, is both illegal and unconstitutional. Once again, the Obama administration is running roughshod over our Constitution and laws, and daring the rest of us to do anything about it.

Which raises this point: Professor Tribe was commissioned by Peabody Energy Corporation to provide an analysis of the EPA’s power grab. No doubt this fact will be seized on by lefties to discredit his testimony. To which I would respond, if independent businesses don’t resist the Obama administration’s unlawful encroachments, who will?

Indeed. The Constitution exists to protect the states and the people from the unrestrained exercise of power by the federal government in all cases. If people shrug off those instances when they involve the bête noires of the cognoscenti, the cognoscenti won’t like it much when the same precedent gets applied against their hobby horses when the people at the top change.