Legal analysts are aflutter over the Supreme Court’s mixed holding in Utility Regulatory Group v. EPA. The main contest seems to be between those who focus on the Court’s upholding of the EPA’s claim to regulate greenhouse gasses and those who focus on the Court’s circumscribing of that power. Truthfully, it is probably a glass half-empty/half-full argument.
But the second group might be closer to the mark on finding the time bomb hidden in the decision. The money line comes on page 23 of the slip opinion:
Under our system of government, Congress makes laws and the President,acting at times through agencies like EPA, “faithfully execute[s]” them. The power of executing the laws necessarily includes both authority and responsibility to resolve some questions left open by Congress that arise during the law’s administration. But it does not include a power to revise clear statutory terms that turn out not to work in practice.
(citations omitted).
Basically, the Court is telling the EPA that it can’t rewrite the statute that gives it power to regulate greenhouse gas emissions just because, if taken as currently written (and never intended, because Congress did not foresee regulation of CO2 when it passed the Clean Air Act in the early 1970s), it would result in an impossibly complex regulatory burden. The EPA has to live with the law as written, just as those regulated by the EPA have to. Fair enough.
Apply that principle to the Affordable Care Act and the time bomb emerges in all its ticky-ticky glory. Since the ACA was passed by Congress, the Obama administration has repeatedly extended deadlines explicitly written into the law by executive fiat. The administration has also granted waivers to over 1000 companies, and many believe that it will exempt unions from looming provisions of the law as well.
Under the Supreme Court’s holding in Utility Regulatory Group, it is difficult to see how these waivers are constitutionally valid. The Court emphasized that allowing an executive-branch agency to rewrite the explicit numerical thresholds in the Clean Air Act would violate separation-of-powers. How would allowing the President to rewrite the explicit deadlines in the ACA be any better? (*chirping crickets*)
So far, the only thing standing in the way of existing challenges to President Obama’s executive rewriting of the ACA has been the issue of standing. In order to sue, a party has to show that the President’s action has somehow directly injured them. Just asserting a generalizing grievance on behalf of all taxpayers doesn’t cut it, and neither does asserting a policy objection. Courts use standing rules to prevent parties from using litigation to revisit legislative policy choices. Regarding the President’s ACA modifications, the federal district courts have so far usually ruled that individuals challenging them have not shown how the waivers harm them.
But House Republicans might be able to solve this problem by authorizing a suit on behalf of the institution of the House itself or, in a more piecemail way, by challenging a waiver that the Obama Administration applied to congressional staff at the request of the same Democratic congressional leaders that drove the ACA through Congress in the first place. Even if they don’t, the growing number and widening scope of ACA waivers is starting to open up cracks in the standing dike protecting the President’s actions from challenge. Given the harsh tone and broad support on the Supreme Court for the idea that the executive branch can’t simply rewrite provisions of laws that it finds impractical or inconvenient, it seems likely that the President’s waivers will ultimately be challenged and that they will be found unconstitutional. (*BOOM*)
Jason is an attorney practicing criminal law, civil litigation, and administrative law. Jason formerly worked as a Resident Instructor of International Relations at Creighton University, focusing on civil-military relations and national security strategy. Jason also served 15 years in the United States Air Force, including service at USSTRATCOM, America’s nuclear-weapons command.
Jason lives in Minnesota with his wife, three sons, three dogs, and three cats.