Republicans and Leftists Are Outraged, Outraged, I Tell You

Nishizaki Sakurako and Bando Kotji in "Yoshino Mountain"by James A. Bacon

Here’s what I missed in yesterday’s quickie post about Governor Terry McAuliffe’s plan to convene a clean energy task force: Both Republicans and leftist environmental groups are attacking the move, though for opposite reasons.

Republican legislators see the initiative as an end run around the state budget, which specifically prohibits any spending on the federal Clean Power Plan for reducing CO2 emissions from electric power plants while it is being challenged in the U.S. Supreme Court. Normally, such accusations strike me as political blather, but Brian Coy, a spokesman for the governor’s office, confirmed that that was precisely the motive. Here’s how the Washington Post summed up his statement: “The governor did not create the work group to assuage environmental groups but rather as a way to dodge the Republican-controlled General Assembly.”

House Speaker William J. Howell, R-Stafford, was not pleased: As quoted by the Richmond Times-Dispatch, he said: “This order is another deliberate attempt to circumvent the legislature and the will of Virginia voters.  The governor is developing a troubling tendency to prefer Washington-style executive action instead of the dialogue and collaboration that Virginians expect and deserve.”

Meanwhile, McAuliffe’s initiative was belittled from the left, who cited his support for the Atlantic Coast Pipeline and Mountain Valley Pipeline, which would supply natural gas to Virginia and other Southeastern markets, as evidence that he is not serious about combating climate change. A joint statement by the Virginia Student Environmental Coalition, the Chesapeake Climate Action Network, and Virginia Organizing called McAuliffe’s initiative “a minor environmental policy” dwarfed by the harm of natural gas transportation and combustion.

The kinds words came from mainstream environmental groups who have been working through the administration to implement the strictest of the Clean Power Plan alternatives available to the state.

The governor is trying to reconcile his desire to combat climate change with his priority of creating jobs. Thus, he defends construction of two natural gas pipelines through the state on the grounds that they will create economic opportunity for the Tidewater region of the state, which is effectively precluded from competing for important categories of industrial expansion due to an insufficient supply of natural gas. At the same time, he has supported the federal Clean Power Plan (CPP), which seeks to curtail CO2 emissions from Virginia power plants. If the CPP passes legal muster, the Department of Environmental Quality (DEQ) will be charged from choosing from one of four broad approaches for the state to implement the plan. Environmentalists favor the option that would curtail CO2 emissions the most, although industry consumer groups worry the approach would drive up electric rates. McAuliffe has not yet endorsed an option.

Bacon’s bottom line: I’m still not sure what the fuss is all about. McAuliffe has already enacted a series of measures driving state government to pursue energy efficiency goals and to purchase solar energy. There is not much else that he can legally do. This new working group can recommend anything it wants, but it won’t have power to spend a dime. Meanwhile, the big action revolves around the Clean Power Plan. If the Supreme Court upholds its constitutionality, the focus turns to the already-instated DEQ working group to recommend how to implement it. If the Supremes nix the CPP, regulatory decision-making effectively reverts to the State Corporation Commission, which responds to legislative guidance enacted into law, not to gubernatorial directives.

I regard this whole hoo-ha as political theater — a kabuki production in which the actors rigidly play out their assigned roles.

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8 responses to “Republicans and Leftists Are Outraged, Outraged, I Tell You

  1. political theatre – yes – but also McAuliffe not taking guff from the looney left or partisan right and agree the power of the purse is pretty controlling – though not at all total.

    Executive orders are fairly common in both current and past Federal and State administrations … what was “too far” was never actually codified in law in a lot of cases – not that it could not have been but the net result is that – if it was not – then the legislator has to go running to the judicial branch to make the call – and I predict we’re going to end up with a rats nest of contradictory nit-picking decisions – over time and the Judicial folks are wary.

    Executive orders are what happens when legislators fail to act.

    Here we are – where the legislatures – State and Federal are running to the courts over virtually every major issue that they themselves fail to address legislatively – whether it be healthcare, abortion, affirmative action, immigration, the environment, you name it and it’s starting to look like a losing hand for the obstructionists…. both short term and longer term.

  2. “Executive orders are what happens when legislators fail to act.” Wrong, wrong, wrong.

    The Supreme Court in the leading case rejected President Truman’s Executive Order “directing the Secretary of Commerce to take possession of and operate most of the Nation’s steel mills.” Youngstown Sheet Tube Co v. Sawyer, 343 U.S. 579 (1952).

    Truman took the position that “the order was made on findings of the President that his action was necessary to avert a national catastrophe which would inevitably result from a stoppage of steel production, and that in meeting this grave emergency the President was acting within the aggregate of his constitutional powers as the Nation’s Chief Executive and the Commander in Chief of the Armed Forces of the United States.”

    The steel mills claimed “the President’s order amounts to lawmaking, a legislative function which the Constitution has expressly confided to the Congress and not to the President.”

    The Supreme Court agreed with the steel mill owners. Justice Black explained ” The President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied. Indeed, we do not understand the Government to rely on statutory authorization for this seizure. ”

    Continuing, It is clear that if the President had authority to issue the order he did, it must be found in some provisions of the Constitution. And it is not claimed that express constitutional language grants this power to the President. The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that ‘the executive Power shall be vested in a President * * *’; that ‘he shall take Care that the Laws be faithfully executed’; and that he ‘shall be Commander in Chief of the Army and Navy of the United States.’ ” And the Court found none of these provisions in the Constitution authorize such action by President Truman.

    Concluding SCOTUS wrote: “The Founders of this Nation entrusted the law making power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand. ”

    No, inaction by a legislative body does not permit the president, a governor or the mayor of a city to take action absent specific statutory or constitutional power. For good or bad, the Founders built obstruction into the American system of government. Unbridled executive action, like that taken by King George III, cannot stand.

    • TMT, I think I’m going to have to agree with Larry’s basic proposition–executive orders often follow where legislative action is not forthcoming. That said, you are also correct that the executive cannot by order enact legislation. However, the executive can take and all of them have taken action WITHIN the scope of the executive’s powers. The Governor can appoint a group to study the situation and decide what actions are legally available to him. I believe he can order CO2 reducing activities by the executive agencies at his command, such as installing low energy light bulbs in government buildings, as a somewhat petty example. I don’t think he can continue in the face of legislative prohibition to direct DEQ to spend money on the CPP, but there are any number of permissible actions he might order.

      The Constitution places the entire executive branch under his command after all.

      • Rowinguy – I think that, in most cases, a president or governor could appoint a study commission on a particular issue or issues – so long as there is nothing in law or an appropriations act to the contrary. Implementing recommendations may well be another matter.

        And, yes, the Executive can order executive agencies, perhaps not independent agencies and certainly not the Legislature or the Courts, to implement energy saving measures.

        But it’s when we see the President or a governor try to make law, such as with rewriting statutes on immigration or restoration of voting rights, that we have a problem.

  3. @TMT – a question –

    if we went and looked at all the Executive Orders issued – how many would you find that we explicitly authorized by the Constitution?

    Is it your position that any that were not explicitly authorized are illegal?

    • Larry, I do not know how many Executive Orders would be authorized by just the Constitution per se. I suspect most implement specific language in a statute. Similarly, I suspect that an Executive Order based solely on a provision in the Constitution would effectively receive more judicial scrutiny than an Order tied directly to a statute that specified the executive was required or permitted to do X.

      This issue is similar to when an agency adopts rules or adjudicates a matter. The agency generally cites to specific provisions of statutory law. And when they base a decision or new rules on broad, general grants of authority, reviewing courts often gives greater scrutiny.

  4. A summary of the 2016 Iowa Legislature by the Iowa State Bar Association (of which I am a member) indicates “The Iowa Legislature, with majority control split among House Republicans and Senate Democrats, produced one of the lowest yearly outputs with 141 enrolled measures and joint resolutions making their way to Gov. Terry Branstad’s desk for his signature during 2016. Only the 2011 session produced fewer signed bills in recent years with 138.” http://qctimes.com/news/local/new-crop-of-iowa-state-laws-take-effect-friday/article_47133089-da16-5eef-922a-9a4a6fa24b1f.html

    So it looks to me as if many other proposed legislation did not pass because it got stopped in one house or another. Because of legislative gridlock, which was created by Iowa voters in splitting control of the legislature, should Governor Branstad be permitted to issue executive orders effectively enacting legislation that could not pass both houses of the legislature? Isn’t that the Obama/McAuliffe argument?

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