Roll Call: Latest News on Capitol Hill, Congress, Politics and Elections
February 10, 2016

Supreme Court EPA Regulation Case Tests Limits, Balance of Power

Tom Williams/CQ Roll Call

(Tom Williams/CQ Roll Call File Photo)

Republicans angry at President Barack Obama’s muscular use of executive authority are returning from recess more focused on litigation than on legislation.

The Supreme Court’s docket for this term is unusual for including two cases with potential to reorder the balance of power between the legislative and executive branches. In oral arguments six weeks ago, the justices seemed open to a significant clipping of the president’s appointment power when the Senate is in recess. On Monday, the court will consider how much an administration can do through regulation before it has seized the congressional prerogative to alter the law.

Both decisions, expected by June, could change the relationship between Congress and the White House in ways that constitutional lawyers and politicians will be arguing about for decades. In the shorter term, though, the outcomes may play a meaningful role in the midterm campaigns and then in Obama’s final two years.

If Obama loses one or both cases, even on narrow grounds, Republicans can be counted on to crow that their complaints about an “imperial presidency” have been vindicated. They likely would further say that, to make sure his power stays diminished, they need to be rewarded with more seats in the 114th Congress. If Obama’s positions prevail, the GOP will seek to raise more money, and court more base voters, with a slightly different argument: that electing an all-Republican Congress is the best way to prevent this president from even more executive overreach.

The recess appointment fight began in January 2012 when Obama put three people on the National Labor Relations Board who would normally require confirmation, contending that the pro forma sessions at the time were a sham that couldn’t mask the reality that senators were on a long holiday break. Senate Republicans, and the losers in a subsequent NLRB decision, cried foul, contending that at a minimum the Senate gets to say when it’s in recess. The lower court ruling now before the Supreme Court went further, calling decades of practice into question by declaring that recess appointments were only valid between the annual sessions of Congress and could only involve positions that came open in that narrow window.

Until recently, the regulatory power case has been viewed mainly as an environmental story. The Supreme Court could slow government efforts to combat global warming, because the dispute is about how much authority the EPA has in limiting greenhouse gas emissions from power plants and other big industrial complexes.

The case has become part of the balance of power narrative during the past month, since Obama promised in his State of the Union address to do whatever he could to advance his agenda “with or without Congress.”

His vow inflamed Republicans, already angry about Obama’s robust exercising of power on a wide range of issues. They don’t like that he slowed the health care law’s implementation, eased up on deportations, relaxed welfare work requirements, declined to defend the Defense of Marriage Act in court and acquiesced in the Colorado and Washington marijuana legalization laws.

More than 100 Republicans have joined an effort to compel the House to go to court in an effort to rein him in, but that strategy has a slim chance of success because judges generally shy away from entering disputes they view as overtly political. The reality that suing is a long shot has heightened Republican rooting interest in the EPA case. Two dozen members have signed legal briefs urging the justices to rule against the Obama administration.

One was filed by Senate Minority Leader Mitch McConnell and the other six members of his party in the coal-centric Kentucky delegation. A second was submitted by five conservative senators from the Midwest. The Southeast Legal Foundation, a small-government think tank, filed a brief that was joined by 12 House members, including all three running for Georgia’s open Senate seat and a trio of senior Energy and Commerce members.

The Supreme Court in 2007 ruled that the EPA had authority under the Clean Air Act to regulate greenhouse gas emissions from new cars and trucks after formally establishing that carbon dioxide poses a danger to public health. With that ruling in hand, the agency in 2010 started creating a permitting system for stationary sources of carbon pollution. The EPA’s power to do that is not at issue in the new case. Instead the question is whether the agency has leeway to tailor a provision of law written in 1970 to fit current circumstances.

The Clean Air Act generally requires the EPA to regulate sources of 250 tons annually of a known pollutant. Applied to greenhouse gases — which are far more ubiquitous than, say, lead — that would mean federal permitting for renovating or building schools, shopping complexes, hospitals and apartment towers.

To avoid what it terms those “absurd results,” the EPA wants to regulate only industrial complexes that generate at least 75,000 tons of carbon pollution a year — the several hundred facilities that account for about a third of all American greenhouse gas emissions.

The Obama administration says the law is flexible enough to permit such a move. Republicans couldn’t disagree more.

While agencies are generally allowed to set “rules that implement the will of Congress” and “may do so by filling in the details of general legislative commands and clarifying ambiguous statutory provisions,” the McConnell brief argued, “neither the EPA nor any other entity in the executive branch may override the will of Congress by amending or disregarding specific, unambiguous statutory text.”

The brief signed by the 12 House Republicans sounds an even shriller alarm — one that makes the stakes in the recess appointment case seem small by comparison. The EPA’s regulations, they assert, are “an intolerable invasion of Congress’s domain that threatens to obliterate the line dividing executive from legislative power.”

  • ImChuckiewannaplay

    Obama is God…he don’t need no stinkin; batdges or laws !

    • Tyler Stephens

      Not God , the anti-Christ …

    • GQ4U

      BHO is as eternal as Hugo Chavez. ;-)

  • anna

    The US government has 3 branches to balance each other. Congress and the Supreme Court are there to Restrain the president if necessary, so he doesn’t make himself a king or something. The President’s executive action is there to allow him to do things that should be done without the other branches having to spend time on it. It is not there to let the president do stuff that the other branches and the People think should not be done. OK, you already knew that, but apparently Obama doesn’t know that. I’m trying to figure out why he hasn’t been impeached yet…

    • GQ4U

      Harry Reid will never allow impeachment proceedings to move forward. The House is moving in that direction and should file charges right away.

      • Charles Brown

        You mean Harry H. Reid the “fightin” tumbleweed from Sparks , Nevada having the best time of his life playing God. He employs all eligible family members and one half of Sparks on the Federal payroll.
        His middle name is hemorrhoid. Yes he is a pain in the… .

        • Charles Brown

          I had not perceived it from that angle but you are absolutely right!

      • Doc3

        Hopefully the House will move forward with impeachment. Even if the Senate does not convict, it will still be a tird in a Obama’s punch bowl. Another benefit, if Congress is focused on impeachment they will not be up to mischief in other areas.

        • GQ4U

          Agreed, and it might bring public scrutiny to Obama’s illegal activities at a time when his opinion ratings are in decline — sort of a hit him while he’s down tactic.

    • pfbonney

      “I’m trying to figure out why he hasn’t been impeached yet…”

      Can’t you hear this already? “If the Republicans try to impeach President Obama, it’s just because they’re racist. The only reason they want to impeach him is because President Obama is black.”

      Regardless of the fact that we tried to impeach Clinton for HIS misdeeds. But then, though he was ALSO America’s first black president.

      (Really, Republicans should have, at least, de-emphasized those charges and gone mostly for charges for treason for his role in the Loral space company deal, where the huge Clinton fundraiser and owner of Loral lobbied the Clinton administration to allow them to sell sensitive secrets to Red China for the purpose of enabling them to put satellites into orbit, the same technology which also enables them to nuke the United States.

      Clinton obliged, by switching the authority to control from the uncooperative DoD to the much more compliant Commerce Department, then run by Ron Brown, who later died mysteriously in a plane crash in the Balkans, allegedly with a .45 caliber gunshot wound in his head.)

      And, regardless of the fact that Obama really has usurped Congress’ power, with ill will and with contempt, for them and for the democratic process.

      • anna

        Yep. The dems came down to 2 potential candidates: a black man, and a woman; plus the promise of free Health Care to buy votes. They knew that if either got elected, they could do whatever they wanted because anybody who disagreed with them could be labeled racist or sexist.
        One of the founding fathers observed that our government is sufficient only to govern a people that is capable of governing itself. Our nation is full of people who lack self-discipline and foresight, and when those people become the majority voters, that will be our downfall, and the end of the greatest nation in recorded history. The media is finally starting to wake up to the fact that something is horribly wrong. We can only hope it isn’t too late.

    • pfbonney

      “The US government has 3 branches to balance each other.”

      (Sorry to monopolize your replies, but you made a couple of good points.)

      That’s exactly what the Democrats hate about the US Constitution – it crimps their style – and more importantly, their power.

      And that is the impetus for them saying that the meanings of the ideas living within the US Constitution is meant to be fluid, to change with the times.

      Yeah, right. Somehow those meanings seem to change only in their favor.

  • GQ4U

    The administrative branch is suppose to administer — never legislate. We the people need to ignore legislation created solely by voice or pen from this out of control POTUS usurper. If the SCOTUS supports Obama then those justices should be impeached or the division of powers is finished and we’ll have to storm the gates to preserve our freedom.
    We need term limits in congress & SCOTUS. We need to shut down the NSA spying that can find dirt on judges and
    elected officials to coerce outcomes that are detrimental to the
    Republic. We need HR-25 & S-122 aka – to remove our enslavement to the feds.
    Remember Ephesians 6:12.

    • pfbonney

      “The administrative branch is suppose to administer — never legislate.”

      Excellent point. And administer what congress legislates. Basic civics.

      Its amazing how often we forget that.

  • Dawn

    Obama is absolutely nothing, not even a decent human being….
    He should watch that movie ‘Son of God’ and look at his Satan Twin….

  • Mark Uss

    After confusing liberty with power, collectivists can appeal to “liberty” to plunder in the name of vague illusions such as “fair share”.

  • Socialism is Organized Evil

    Since liberty allowed only when its results are thought to be beneficial is not liberty at all, we cannot maximize liberty’s benefits if it is forbidden when its uses appear undesirable.

  • Oscar’s Wilde

    If we are to be free, our rewards must be determined by the usefulness of our abilities rather than subjective merit judgments by others.

  • Dopple Gang

    Those who preach from collectivism’s altar try to justify centralized control with vague words, such as “fair”, “equal”, and “society”, that sound appealing while remaining open to subjective interpretation.

  • anna

    What the Dems are doing reminds me of Preschool. Kids learn about sharing, but initially they think that sharing means they get to take everybody else’s stuff (a model of a dem-run government “your stuff is our stuff, so we can take as much as we want”). Eventually the kids learn (hopefully) that sharing means letting other people use your stuff, and giving away what you don’t need or aren’t using (the Republican notion of people who have more voluntarily sharing with and giving to those who have less…without the government getting involved and taking a percentage).

  • Charles Brown

    Better he should never have been born………….. he has set this country back 50 plus years in all categories imaginable, foreign and domestic. Meanwhile a nation, congress, senate and supreme court looks on complacently like a herd of sheep being led to slaughter. Bah Bahh Bahhha…….

  • claygooding

    I have to laugh,,every Republican President before him issued more Executive orders than he has and some that have caused more damage to our country than anything Obama has done,,,the war on drugs,the DEA,NIDA all exist from Executive orders and a lot of the programs that keeps our prisons filled with nonviolent criminals were done by Nixon and even though he is listed as the crookedest President his corrupt policies are still costing America over $200 billion a year in taxes.

Sign In

Forgot password?



Receive daily coverage of the people, politics and personality of Capitol Hill.

Subscription | Free Trial

Logging you in. One moment, please...