Biden is considering invoking considerable powers, but executive actions taken for a ‘climate emergency’ would be unconstitutional.
The left is pressuring President Joe Biden to declare a climate emergency and his consideration of this declaration is a sign of desperation and weakness. Executive actions taken as a result of a “climate emergency” would die in the U.S. Supreme Court (more on that later).
The reason Biden may declare a climate emergency is simple: His green agenda has stalled. Persistent inflation, led by rising energy costs, and a nation likely in recession, has reduced the likelihood that a narrowly divided Congress will approve the application of additional environmental leaches to an anemic economy.
It appears green dreams are the ultimate First World luxury good — it’s all fun and games until the average family shells out $5,000 a year more for gas, food, electricity, and rent.
Yet the left demands more. Elected representatives are a roadblock. The people don’t know what’s best for them. The Vanguard of the Proletariat have met and decided that if Congress won’t act, then an array of administrative acronyms led by the dogmatic theoreticians of the White House — none of whom who have run a business — will.
The powers Biden is considering invoking are considerable, though none of them were intended by Congress to do what administration is preparing to do.
Even a short summary is terrifyingly breathtaking in ambition and disingenuous creativity.
In March, the Securities and Exchange Commission (SEC) proposed a rule to require “climate-related disclosures for investors.” This rule, if finalized, would deal further hammer blows to the domestic oil and gas industry — just after Biden was forced to go hat in hand to Saudi Arabia to beg Crown Prince Mohammed bin Salman for more oil. It would do that by requiring publicly traded companies to detail their greenhouse gas emissions, including those of their suppliers, whether they are publicly traded or not. In other words, privately held firms, family-owned companies, and individual proprietorships would be burdened with costly reporting requirements, causing more money to be put into paperwork and less money to be put into productive activity.
Next, just because the Supreme Court rolled back regulatory power in June’s West Virginia v. Environmental Protection Agency (EPA) decision doesn’t mean that the EPA won’t still be used to achieve climate goals in ways Congress never authorized. For instance, it’s expected that the EPA will issue new particulate thresholds that would have the practical effect of regulating all combustion for energy and transportation purposes. Particulates are small particles that, in today’s era of clean air, are mostly generated by farming, wildfires, and construction activities — modern combustion is remarkably clean. However, because ambient levels of particulates are very hard to push below a certain level, there will always be an excuse to squeeze for more until every vehicle powered by hydrocarbons is removed from the road or curbed by fees. Put another way, it’s a war on using hydrocarbons to make energy or power vehicles.
The declaration of a climate emergency would also embolden the Biden administration to invoke Section 202 of the Federal Power Act. This law, clearly intended by Congress to be used only in time of war or an emergency due to an increased demand for electricity or a shortage of electricity, will be used to shift electrical power from regions that have responsibly planned for their power needs to states that have gone green and, as a result, have made their grids vulnerable to the vicissitudes of weather. This means that the federal government could literally divert power contracted for by Arizona and shift it to California — a version of this happened a year ago. Essentially, a maximalist use of Section 202 will allow leftwing Biden appointees to turn the power off wherever they choose — all for environmental justice and the planet, of course.
Finally, Biden’s environmental zealots are looking to the Defense Production Act (DPA) to commandeer any part of the economy they feel should be drafted into the fight against climate change. Former President Donald Trump used the DPA to order 3M to produce N95 masks and General Motors to produce ventilators for the federal government. Biden invoked it for Covid-19 purposes as well and then improbably expanded its use to (try to) address the baby formula shortage. With the DPA now unleashed for decidedly non-war applications, the ability to muck with all aspects of the economy for the “climate emergency” are endless.
Fortunately, due to the unlikely success of the duo of Trump and Sen. Mitch McConnell (R-Ky.), the federal bench was well-provisioned with constitutionally minded jurists. As a result, the unbridled powers of the administrative state have been in retreat.
Former six-term Indiana Republican Congressman John Hostettler, vice president of federal affairs with the Texas Public Policy Foundation, observes that, “Justice Alito’s concurrence in Gundy v. United States was a clear signal that he is willing to put an end to the administrative state if the right case comes before the Supreme Court. And the left knows it.”
Hostettler was referring to Justice Samuel Alito’s 2019 opinion, which was characterized by his colleague, Justice Neil Gorsuch, as “not join[ing] either the [court] plurality’s constitutional or statutory analysis,” In it, Alito stated:
The Constitution confers on Congress certain “legislative [p]owers,” Art. I, §1, and does not permit Congress to delegate them to another branch of the Government…. Nevertheless, since 1935, the Court has uniformly rejected nondelegation arguments and has upheld provisions that authorized agencies to adopt important rules pursuant to extraordinarily capacious standards….
If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.
Moreover, Hostettler maintains, “Given the addition of the likely votes of Justices [Brett] Kavanaugh and [Amy Coney] Barrett, there’s even more cause for optimism that the High Court is likely to do what Congress seems unable to accomplish. That optimism was bolstered with the outcome in West Virginia v. EPA. Although West Virginia wasn’t the nondelegation case that Alito’s previous pronouncement called for, it’s close enough to stiffen the resolve of Constitutionalists to come up with the right case so that the Court’s majority can further cement its direction on the ‘major question’ doctrine — the concept that if an agency seeks to regulate on a ‘major question’ the statute must clearly grant that express authority.”
For this reason, Hostettler is confident that the Biden administration’s climate emergency overreach would “do to the expansive power of the administrative state what Dobbs did to Roe v. Wade.”
In war there are casualties — and Biden’s climate war threatens to claim the once-mighty power of unelected bureaucrats and left-wing appointees to rule our lives without our votes.
Americans continue to be on the move. According to North American Moving Services, California and New York were losing residents and had some of the highest rates of outbound moves (based on moving truck rental data) in 2018, while Texas and Florida were among the states with highest rates of inbound moves.
Broadly speaking, Texas and Florida tend to have public policies that support a free-market economy, whereas states like New York and California tend to do the opposite. The case can be made that residents seem to be voting with their feet in favor of economic freedom.
Economic Freedom Varies
While economic freedom varies across states within the U.S., it also varies within states, as my new study published by the Reason Foundation shows.
The “U.S. Metropolitan Area Economic Freedom Index” uses nine different measures of state and local government policies to produce an overall score for each of the nation’s 382 metropolitan statistical areas (MSAs). For purposes of rankings, the 52 largest with over a million residents were examined separately. Continue reading
One of Barack Obama’s proudest boasts was his claim he’d “saved” the American auto industry during the first year of his presidency. Maybe. He certainly did a lot, some of which might have actually been helpful, to keep the doors open at General Motors and to bridge the sale of Chrysler to Fiat, but it’s not clear he did much to help Ford or any of the foreign manufacturers who build so many vehicles here in the U.S.
What he and his cohort didn’t want to talk about, then or now, is all the policies they advocated that had helped put U.S.-owned manufacturers in the fix they found themselves in. This is particularly true in the environmental arena, where rules governing the corporate average fuel economy standards did so much to compel the production of cars people didn’t want.
Requiring the auto companies to build more cars that got more miles to the gallon may seem like a good idea. In fact, it may Continue reading
By Chuck DeVore • The Federalist
A California lawmaker recently came up with the bright idea that waiters who serve unrequested straws should go to jail for six months because … the environment. Another duo of lawmakers have proposed more than doubling California’s business tax under the theory that employers wouldn’t miss the cash, because the tax increase would only take about half of President Trump’s recent tax cut.
Lawmakers all over the nation introduce weird or controversial legislation. Most of these bills are harmless, as they’d never make it out of the legislature, much less be signed into law by a governor. In California, however, many such legislative proposals are taken seriously and often do get signed into law.
Why is this? Sure, California is a liberal state. But, one key governmental structural factor likely contributes to Golden State lawmakers’ seeming isolation from common sense: California lawmakers often make a career of full-time politics. Continue reading
By Drew Johnson • Fox News
Some activists are urging Congress to use a little-known procedural tool to overturn a recent Federal Communications Commission (FCC) decision called the Restoring Internet Freedom Order. This misguided approach would only handcuff the internet and saddle it with Depression-era rules that have been proven to hurt consumers.
Instead, lawmakers should ensure a free and vibrant internet through real legislation that permanently enshrines clear consumer protections, while respecting the more hands-off approach that has allowed the internet to flourish.
The FCC voted in December to repeal Title II regulations on the nation’s broadband networks, which were applied in 2015 under the Obama administration. Title II rules were created during the 1930s to regulate the telephone industry like a utility.
There appears to be a dark money campaign seeking to influence public comment on the FCC's Restoring Internet Freedom order.
By US News•
Despite the Federal Communications Commission’s repeal of the doctrine known as “Net Neutrality,” the fight over control of the internet continues. Chairman Ajit Pai’s courageous leadership has been met with sustained resistance from those who would rather see the world’s most ambitious electronic commercial and communications platform regulated like it were Ma Bell.
Pai has been subjected to continuous abuse. Pickets have been mounted outside his home. The safety of his wife and children have been implicitly threatened. He’s been subjected to a campaign of constant harassment and yet he has persisted because of his firm belief he is in the right. That campaign of harassment is now headed to Capitol Hill, which unsurprisingly has been flooded with letters in anticipation of the FCC’s publication of its order Restoring Internet Freedom which finally appeared Thursday in the Federal Register.
The letters claim the Congressional Review Act would protect net neutrality – generally understood as the principle that internet service providers should not be allowed to block, throttle or censor lawful web traffic on their networks.
For reasons that therefore should be obvious, the Restoring Internet Freedom order isn’t popular among the coalition of Silicon Valley tech giants and far-left pressure groups that lobbied the Obama administration to regulate the Continue reading
By Binyamen Appelbaum and Jim Tankersly • New York Times
WASHINGTON — A wave of optimism has swept over American business
leaders, and it is beginning to translate into the sort of investment in new
plants, equipment and factory upgrades that bolsters economic growth, spurs
job creation — and may finally raise wages significantly.
While business leaders are eager for the tax cuts that take effect this year,
the newfound confidence was initially inspired by the Trump administration’s
regulatory pullback, not so much because deregulation is saving companies
money but because the administration has instilled a faith in business
executives that new regulations are not coming.
“It’s an overall sense that you’re not going to face any new regulatory
fights,” said Granger MacDonald, a home builder in Kerrville, Tex. “We’re not
spending more, which is the main thing. We’re not seeing any savings, but
we’re not seeing any increases.”
The applause from top executives has been largely reserved for the
administration’s economic policy agenda. Many chief executives have been
publicly critical of President Trump’s approach to social and cultural issues,
By Victor Davis Hanson • National Review
Rarely has such a naturally rich and scenic region become so mismanaged by so many creative and well-intentioned people.
In California, Yuletide rush hours are apparently the perfect time for state workers to shut down major freeways to make long-overdue repairs to the ancient pavement. Last week, I saw thousands of cars stuck in a road-construction zone that was juxtaposed with a huge concrete (but only quarter-built) high-speed-rail overpass nearby.
The multibillion-dollar high-speed-rail project, stalled and way over budget, eventually may be completed in a decade or two. But for now, California needs good old-fashioned roads that don’t disrupt holiday shopping — before it starts futuristic projects it cannot fully fund.
California’s steep new gasoline tax — one of the highest in the nation — has not even fully kicked in, and yet the cash- Continue reading
Scott Pruitt, the administrator of the Environmental Protection Agency is taking the lead on this, but expect it to spread to other agencies, including the DOJ. It’s a good start, but there are other problems in the lawfare arena that need to be addressed to ease tensions and restore order to the legal system.
Consider the attacks on Big Oil, which started with a novel legal theory that presupposed the U.S. oil and gas industry deliberately conspired for several decades to deceive the public about climate change.
That theory became an allegation which, when backed by several of the attorneys general of more than a dozen states, turned into litigation that threatens to set a number of dangerous legal precedents while undermining the nation’s economic vitality.
We and the millions of Americans who support our organizations are deeply concerned that Sen. Elizabeth Warren’s proposed legislation — the “Over the Counter Hearing Aid Act of 2017” — is just another big government ploy to create more regulations and aid corporate rent seekers while harming consumers by limiting their choices and driving prices higher.
Sen. Warren claims that she wants to create an all new over-the-counter (OTC) category for personal sound amplification products (PSAPs). However, it turns out this claim is misleading at best, if not completely disingenuous. Sen. Warren’s bill expands the power of federal bureaucrats, eliminates state authority, and reduces consumer access to amplification devices by making them more expensive and highly regulated. That’s not how she advertises the bill, but that’s how it would be described if truth in labeling laws applied to Congress.
Today, without her proposed law, there are PSAPs legally available at Best Buy, Wal-Mart and thousands of other stores and outlets for very reasonable prices. Anyone can buy these devices. They simply amplify sound — not for people with medical hearing loss — but for those who want to amplify sound. Some use them for bird watching, others to snoop on conversations that are ordinarily out of ear shot.
As you know, these PSAPs are different from medical hearing aids in that hearing aids are designed for people who have medically measurable hearing loss and require a doctor to help determine the cause of the hearing loss and the most appropriate way to correct the problem. All hearing loss isn’t the same. So doctors play an appropriate role in helping the patient find and tailor the right solution. These medical hearing aids are not used for snooping or songbird listening. They are specifically tailored to the patient.
The bottom line is that PSAPs are not medical hearing aids and they don’t need to be regulated like medical hearing aids. But Sen. Warren wants to subject PSAPs to FDA regulation and explicitly lock states out of any role in the process, and then designate these PSAPs as available “over-the-counter” as if that were some big, new innovation — conveniently failing to mention that they are already available to anyone at thousands of stores.
While it is impossible to know for sure what the motivation for this legislation is, it is clear that it is a solution in search of a problem that does not exit. It is unfortunate that government regulators and big, rent-seeking corporations are the real beneficiaries of this bill. Consumers are the losers.
Some companies believe that they can make more money selling PSAPs if they were regulated because that would make them seem more “big time” and “high tech” and make them seen more like medical hearing aids. That would allow them to charge more and give them new marketing material. In fact, Bose, the famous speaker maker, markets a relatively expensive PSAP called “HearPhones.” They are located in Sen. Warren’s home state. These amplification devices aren’t medical hearing aids, but they could pretend to be “quasi” hearing aids with Sen. Warren’s new bill. Creating a new regulatory regime to help corporations market their products and raise their prices is not a good use of government power.
Sadly, Sen. Warren’s bill will do nothing to give consumers and patients greater access or lower prices. And it certainly won’t lead to more innovation. A new layer of regulation is not a stimulator of innovation — it squashes innovation. What it will do is empower federal bureaucrats and lead to poorer healthcare by eliminating the doctor-patient relationship in finding the right hearing aid and tailoring it to the patient’s needs. Without a doctor’s input, serious hearing problems can go undiagnosed and if untreated, options and hearing can be forever lost without hope of recovery.
We encourage you to thoroughly review this bill and to see through its misleading claims of making more devices “over the counter.” We also ask you to strongly oppose this legislation on the merits — because more government regulation, and preempting states is not in the best interests of Americans who seek reasonably priced, quality hearing aids for medical reasons. Nor is it in the best interests of Americans who want inexpensive and effective personal sound amplification products for their hobbies and personal interests. Patients and consumers both lose under this legislation. Thus, we encourage you to oppose it at every turn.
George C. Landrith, President, Frontiers of Freedom
Morton Blackwell Chairman, Conservative Leadership PAC
James L. Martin, Founder/Chairman, 60 Plus Association
Lewis K. Uhler, Founder & President, National Tax Limitation Committee
Charles Sauer, President, The Market Institute
Matthew Kandrach, President, Consumer Action for a Strong Economy
Andrew Langer, President, Institute for Liberty
Richard A Viguerie, Chairman, ConservativeHQ.com
David Williams, President, Taxpayers Protection Alliance
Andrew F. Quinlan, President, Center for Freedom and Prosperity
Steve Pociask, President, American Consumer Institute / Center for Citizen Research
Harry Alford, President & CEO, National Black Chamber of Commerce
Heather Higgins, President & CEO, Independent Women’s Voice
Judson Phillips, Founder, Tea Party Nation
Norm Singleton, President, Campaign for Liberty
John Cooper, President, Defending America Foundation
Mark Thomas, Founder, Freedom & Prosperity Caucus
Sabrina Schaeffer, Exec. Director, Independent Women’s Forum
Nicholas Willis, President, Americans for Liberty & Security
Susan Taylor, President, Strengthening America for All
Scott Vanatter, President, The Last Best Hope on Earth Institute
* Organizations & affiliations are listed for identification purposes
by Mary Katharine Ham • The Federalist
In Arizona, an act of charity became a possibly criminal act when a state board took issue with a cosmetology student giving free haircuts to local homeless people.
Juan Carlos Montesdeoca is a Tucson cosmetology student who used to be homeless. He organized a Haircuts for the Homeless event along with other classmates in a local park in January, offering barber services and manicures for people who hadn’t had such treatment in years. But an anonymous complaint to state officials for practicing this rogue styling without a license led to an investigation by the State Board of Cosmetology.
Republican Gov. Doug Ducey sent a letter to the board Wednesday asking them to stop the investigation, calling Montesdeoca’s “an act of charity that we should be celebrating.” Continue reading
by Charlie Hoffmann • Washington Free Beacon
A Friday opinion piece in the Wall Street Journal has conservatives on Capitol Hill intrigued about the possibility of being able to roll back a plethora of regulations introduced during the Obama administration.
Kimberley Strassel’s column, “A GOP Regulatory Game Changer,” argues that the Congressional Review Act of 1996, or CRA, would grant congressional Republicans the ability to repeal onerous regulations passed by the Obama administration.
The accepted wisdom in Washington is that the CRA can be used only against new regulations, those finalized in the past 60 legislative days. That gets Republicans back to June, teeing up 180 rules or so for override. Included are biggies like the Interior Department’s “streams” rule, the Labor Department’s overtime-pay rule, and the Environmental Protection Agency’s methane rule. Continue reading
by Ali Meyer • Washington Free Beacon
The Obama administration has put forth 25 so-called “midnight” regulations, which will cost the economy $44.1 billion, according to a report from the American Action Forum.
Midnight regulations are rules that are published after Election Day and before the next president is inaugurated in January 2017. Earlier this year, the administration estimated that there would be $5.2 billion in regulatory costs incurred during that time.
The $44.1 billion in regulatory costs have overshot that estimate by more than eight times. Continue reading
By Associated Press • New York Post
California will begin regulating greenhouse-gas emissions tied to dairy cows and landfills under legislation signed Monday by Gov. Jerry Brown, escalating state efforts to fight climate change beyond carbon-based gases to include methane and other pollutants.
The law targets a category of gases known as short-lived climate pollutants, which have an outsize effect on global warming despite their relatively short life in the atmosphere. Environmentalists hope that tackling short-lived pollutants now would buy time to develop new and more affordable technology to reduce carbon emissions.
California has stoked a global reputation for its attempts to slow climate change through a combination of strict mandates against pollution and financial incentives for green technology. Continue reading
New burdensome regulation issued every 3 days
The federal government has imposed a new major regulation every three days since President Barack Obama took office, as the administration has shattered the record for implementing regulations costing the economy $100 million or more.
The Obama administration has now issued 600 major regulations, the center-right policy institute the American Action Forum noted in a recent report.
“One year ago, the American Action Forum (AAF) celebrated a regulatory milestone, of sorts: 500 major regulations,” wrote Sam Batkins, director of regulatory policy. “A major regulation has an economic impact of $100 million or more and can significantly affect prices for consumers.” Continue reading