Obama's Harvard Law professor: The Clean Power Plan is unconstitutional

Even more fundamentally, the EPA, like every administrative agency, is constitutionally forbidden to exercise powers Congress never delegated to it in the first place. The brute fact is that the Obama administration failed to get climate legislation through Congress. Yet the EPA is acting as though it has the legislative authority anyway to re-engineer the nation’s electric generating system and power grid. It does not.

To justify the Clean Power Plan, the EPA has brazenly rewritten the history of an obscure section of the 1970 Clean Air Act. The EPA cites Section 111 of the Clean Air Act as authority for its proposal. In reality, this part of the law expressly says that it may not be used to regulate power plants where, as is the case in this situation, those plants are already being regulated as Congress contemplated under another part of the law, Section 112—one involving hazardous pollutants…

Some defend the EPA’s power grab on the grounds that it has the potential of averting global disaster. They remind us that, to save the Union during the Civil War, Lincoln was willing to suspend habeas corpus without the congressional authorization the Constitution requires. Today, with the benefit of hindsight, even Lincoln’s decision looks more like an overreaction—akin to the Alien and Sedition Acts and the internment of Japanese Americans after Pearl Harbor—than a genuinely necessary response to an existential crisis.