The D.C. Circuit Court of Appeals last week released a 320-page transcript of the September 27th oral argument on the Environmental Protection Agency’s carbon dioxide (CO2) emission standards for existing fossil-fuel power plants, the agency’s so-called Clean Power Plan (CPP). From a constitutional perspective, the best moment of the marathon proceeding was Judge Brett Kavanaugh’s reminder to his colleagues that “global warming is not a [regulatory] blank check.”
The fun part of it is that Kavanaugh, a conservative judge appointed by President George W. Bush, invoked liberal Supreme Court Justice Stephen Breyer’s concurrence in Hamdan v. Rumsfeld, a case invalidating the Bush administration’s use of special commissions to try detainees at Guantanamo Bay.
In Hamdan, Justice Breyer wrote (citations omitted):
The dissenters [Justices Thomas, Scalia, and Alito] say that today’s decision would “sorely hamper the President’s ability to confront and defeat a new and deadly enemy.” They suggest that it undermines our Nation’s ability to “preven[t] future attacks” of the grievous sort that we have already suffered. That claim leads me to state briefly what I believe the majority sets forth both explicitly and implicitly at greater length. The Court’s conclusion ultimately rests upon a single ground: Congress has not issued the Executive a “blank check.” Indeed, Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary.
Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.
Kananaugh applied Breyer’s reasoning as follows (p. 100):
The larger point is that it’s up to Congress to decide. And it seems . . . and I’ll just throw this out, I’m concerned about making sure our decision, in the grand sweep of separation of powers, is consistent with the past, and consistent with the future. And it seems like what we have here is a thin—people disagree with the adjective—but a thin statute [i.e. Section 111(d) of the Clean Air Act]. It wasn’t designed with this specifically in mind, but it can be kind of moved around to get here, for some really urgent problem.
And thinking in the past, I mean, the prior administration in the national security realm went through the same thing, and thin statutes trying to defeat an enemy, and the Supreme Court said no in the Hamdan case, which I think is highly relevant. Justice Breyer said the dissenters say that today’s decision would sorely hamper the President’s ability to confront and defeat a new and deadly enemy; the Court’s conclusion ultimately rests upon a single ground: Congress has not issued the Executive a blank check; no emergency prevents consultation with Congress; judicial insistence upon that consultation does not weaken our nation’s ability to deal with danger; strengthens the nation’s ability to determine through democratic means how best to do so; the Constitution places its faith in those democratic means.
And it seems like we’ve lived this issue where the most urgent need of our country was identified as a reason to use old statutes that weren’t squarely on point to jam new urgent needs into those. And the Supreme Court, Justice Breyer speaking directly to it, war is not a blank check. Global warming is not a blank check either for the President.
Distilling Kavanaugh’s riff on Breyer down to a soundbite, we get the following: Where, as here, no emergency prevents consultation with Congress, neither war nor climate change justify executive lawmaking.