Breathtaking Lawlessness

America’s federal executive branch has met some setbacks as of late. Two recent Supreme Court rulings have constrained the administration’s impulse to act as it wishes. Yet, the mere fact that the administration has overreached as it has—and would have continued to do so had the court not stopped it—should send us a clear warning: The instincts of executive power are always toward accumulating more power. In both cases, the court found, the administration clearly ignored the express instructions of the Constitution in favor of its own convenience.
The first decision concerned an attempt by the U.S. Environmental Protection Agency (EPA) to restrict the emission of greenhouse gases like carbon dioxide under the Clean Air Act. But the Clean Air Act’s emissions strictures posed a problem, because they would require the agency to restrict emissions above a certain threshold from stationary sources. Carbon dioxide is emitted in large amounts from even small sources, so applying the Clean Air Act would mean subjecting schools, hospitals, and apartment buildings to the same standards as industrial power plants.
The EPA, realizing how unpopular this would be, took it upon itself to rewrite the law, issuing what it called a “tailoring rule,” a scheme my colleague Marlo Lewis described as an act of “breathtaking lawlessness.” The attempt to amend, in the absence of congressional intent, clear, numerical, statutory provisions was a stark usurpation by the executive branch. Remember, the Constitution vests all legislative power in Congress.
The court agreed. Writing for the court, Justice Antonin Scalia said that it was “patently unreasonable—not to say outrageous—for EPA to insist on seizing expansive power that it admits the statute is not designed to grant.” The court said the EPA was “laying claim to extravagant statutory power over the national economy,” and that if the court agreed with it, it “would deal a severe blow to the Constitution’s separation of powers.” Yet this shot of good sense came with a bitter chaser (more on that later).
In the second decision, just last week, the court found unconstitutional President Obama’s recess appointments of some members of the National Labor Relations Board whose nominations had been blocked in the Senate, because the Senate had not declared itself to be in recess. The administration argued that it was entitled to use the power whenever “the Senate is not open for business.” 
The court rejected that view unanimously. As Case Western University law professor Jonathan Adler observed, “None of the justices were willing to accept the position of the Obama Administration, which was unnecessarily extreme. In choosing to make the recess appointments in the way it did, such as by not following precedents set by prior administrations (including Teddy Roosevelt) and filling some Board spots that the Senate never had time to fill, the Administration adopted a stance that was very hard to defend, so it could not attract a single vote.” (My organization, the Competitive Enterprise Institute, filed an amicus brief in the case before it reached the Supreme Court.)
The administration’s expansive view of its own enumerated powers is disturbing. But it should not be surprising. It is in the nature of executive power to seek to accrue more power. Throughout history, executives have claimed more power for themselves, whether by imperial decree or the new variant of “pen and phone.” And they’re not just raiding the legislature. Executives have a tendency to usurp judicial power too, whether by Star Chamber or administrative court.
This is why free societies must always be on guard against executive “mission creep.” As James Madison said, “There are more instances of the abridgment of freedoms of the people by gradual and silent encroachment of those in power than by violent and sudden usurpations.”
Now, about that chaser. In its decision on the EPA rule (where the court only slightly limited the agency’s ability to regulate emissions from stationary sources), four of the nine justices agreed that the EPA should have the power to rewrite the law. When the English Parliament gave Henry VIII such a power in 1539, the philosopher David Hume later said that it “made by one act a total subversion of the English constitution.” In other words, basic freedom from executive law-making survived by just one vote last week. 
So, while the idea of liberty is extremely resilient, its practical restraint on government by such means as constitutions is always fragile. The question therefore must be whether we can develop “antifragile” institutions of liberty.
Perhaps. The developing “sharing economy” might be seen as a “sharing constitution” in its early stages. Uber’s righteously defiant reaction to the Commonwealth of Virginia’s “cease and desist” orders may be an indicator of a way forward. Yes, the road from Virginia traffic court to constitutional convention is a long one, but could we be seeing an “application revolution” in action that increases citizens’ power over runaway executive magistrates?