Clearing The Air Constitutionally

If you don’t count their neighbors across the street at the U.S. Capitol Building, nobody in Washington has more authority to speak on the subject of harmful gas than the Supreme Court. So it is only fitting the Court yesterday rejected Administration arguments that the Environmental Protection Agency could not ignore or refuse to take jurisdiction over the matter of carbon dioxide emissions’ environmental impact.

I’ll forego the usual libertarian rant against the broad Commerce Clause interpretation that permits the Environmental Protection Act, the Clean Air Act and the resulting regulatory agency to exist in the first place and, for that matter, the substantive scientific debate over the extent of the anthropogenic contribution to global warming, etc. The real issue here is also constitutional, but vastly more obviously so. By Article II, Section 3, the President “shall take care that the laws be faithfully executed.” However broad Executive discretion may be in the interpretation and execution of those laws, it is not limitless, a fact too often ignored by the Bush Administration.

Now, in the instant case it appears there is a legitimate question of standing to sue, at least according to the Times’ report of the 5 to 4 decision and the focus of the dissent. That’s an important consideration, too. The Supreme Court has no more business overreaching its legitimate authority than Congress or the White House. But surely the basic idea behind the holding, whether properly reached in this case or not, is valid; namely, Justice Breyer’s assertion that “the use of the word ‘judgment’ [in the Clean Air Act] is not a roving license to ignore the statutory text.”

Executive fiat is no less troubling constitutionally and far more dangerous as a practical matter than judicial fiat. I take no position on the merits of this particular decision, but I take heart at any attempt to rein in this Administration’s arrogant views of its own prerogatives, just as I take heart at checks on judicial and legislative abuses.

Conservatives, even including the “Neo” variety, who profess after all to have a keener appreciation of the rule of law than their liberal counterparts, should be and apparently are becoming more chary of the assertions of presidential power we have witnessed in the past six years. Especially when you consider the increasing likelihood that one of their own won’t be holding that office two years from now.