Professors Eric Posner and Adrian Vermeule have famously argued that the Executive is “unbound” and cannot be constrained by law—not by Congress, and most certainly not by the courts. There is some truth to this in emergencies. The Supreme Court’s wartime decisions, for instance, show a fairly consistent pattern: the justices bob and weave and cut the President an awful lot of slack. But they usually try to salvage what they can—and to preserve the option of reasserting their power when the emergency ends.
The brawl over the Obama EPA’s “clean power” plan—an ambitious design to de-fossilize the entire economy and to make Planet Earth spin westward for a change—has reached the Supreme Court.
As we noodle over administrative law’s foundations, we should also think carefully about its mechanics, and how these could better shape its compliance with the rule of law. Herewith an example: preliminary relief. (I’ll run together a bunch of doctrines that are technically different. But they all go to the timing of effective judicial relief.)
In an exceptionally well-written and economically literate op-ed, Mrs. Rhea Lana Riner describes her unpleasant interactions with the U.S. Department of Labor. She operates clothing consignment shops. Her business model, which she has franchised with great success, allows consignors to volunteer at sales events. The Labor Department says the volunteers are actually employees and must be paid minimum wage, plus overtime. So the Department went to town on Rhea Lana’s: it urged the volunteers to sue for back pay (none did) and then sent a demand letter: pay them or else. Mrs. Riner explains that
[t]he Labor Department’s years long and still-unofficial crusade has placed Rhea Lana’s into regulatory purgatory. The department is ordering me to conduct business to my detriment, and threatening hundreds of thousands of dollars in civil penalties if I fail to comply. Yet a federal court has ruled that I lack any meaningful recourse until the agency files an official complaint, which it has not done.
And may never do, Mrs. Riner. Because then, they’d have to defend their position in court.
Last month, the EPA finalized major new rules requiring carbon dioxide reductions across the energy-generating industry. The rules require power plants to reduce emissions levels to 32% below their 2005 levels in the next fifteen years, and it is part of the administration’s attempt to force plants to shift from coal to wind and solar energy. President Obama views the new rules as a crucial part of his environmental legacy; he introduced his “Clean Power Plan” (CPP) as “the single most important step America has ever taken in the fight against global “climate change.”
The new rules are big, they are complex – but we’ve seen the basic story of what the administration is doing here before. In various areas of environmental policy, along with several other policy areas as well – most notably with immigration, health care, and financial regulation – the president has directed agencies to do through administrative edict what could not be accomplished through Congress. Think of the CPP as the failed cap-and-trade bill, take two – only now announced through the executive branch, rather than enacted through the legislature.