Mark Moller
Senior Fellow, Cato Institute
Jonathan has asked, elsewhere, whether the Court’s decision in Massachusetts v. EPA is a problem of the EPA’s own devising. I wonder, though, whether it is also a problem of President Bush’s devising. Is it possible to read the decision as a collateral casualty of the President’s aggressive and unrelenting efforts to bolster the power of the Office of the President?
There are a couple of hints that this is the case. One hint is the striking degree to which the EPA relied on conclusory presidential determinations, rather than independent evidence, to support its decision not to regulate. Those included:
1. A presidential determination about the “centrality†of “reduc[ing] key uncertainties that exist in our understanding of global climate change.â€
2. A presidential determination that “[a]ddressing global climate change will require a sustained effort, over many generations.â€
3. A presidential determination that it is more cost-effective to pursue GHG reduction by improving fuel economy standards.
Each of these determinations went to the heart of findings on endangerment, timing, and feasibility/cost of implementation that the agency must consider when deciding the advisability and content of a rulemaking under section 202 of the Clean Air Act. By rejecting the sufficiency those determinations, and requiring an independent factual record before upholding the EPA’s (in)action, the Court signals profound suspicion of the President’s political influence over “expert†agencies’ regulatory policy.
Hint two is that the majority went out of its way to link the decision to the larger debate over executive power–emphasizing that while “the President has broad authority in foreign affairs, that authority does not extend to the refusal to execute domestic laws,†a pointed jab at the President’s claims of inherent power to ignore Congress in other areas.
Hint three: this reading helps to harmonize the outcome in this case and that in last term’s Gonzales v. Oregon. In Gonzales, the Court was quick to read a less-than-clear federal statute—the Controlled Substances Act—to preclude executive authority over one contested policy field (assisted suicide). In Mass v. EPA, by contrast, the Court reads another less-than-clear statute—the Clean Air Act—to delegate authority to the executive branch over an equally contested field, global warming.
However, viewed through an executive power lens, the decision in Massachusetts v. EPA and that in Gonzales v. Oregon are of a piece: in both cases, the Court has stepped in to squelch the President’s political control over agency regulatory choices. In Oregon, it did so by squelching the AG’s influence over federal medical policy. As commentators suggested at the time, the Court’s decision seemed to reflect concerns that the White House, acting through the AG, was politicizing regulatory decisions better left to federal agencies with medical “expertise,†like the FDA. In Massachusetts, the Court also squelches the President’s authority over agency regulatory policy–here, by adopting what appears to be a “hard look†approach to review of EPA inaction, under which the EPA, if it wants to shy away from aggressive regulation going forward, must build a detailed, independent factual record that supports the rationality of its judgments—one that stands on its own rather than on the force of conclusory White House directives.
The upshot: Mass. v. EPA is more evidence that a majority on the Court deeply distrusts President Bush and views agency policies that bear his fingerprints with a jaundiced eye. If that’s right, then this case may offer more evidence for the thesis that the Bush administration’s tin-eared aggressiveness on the issue of the unitary executive has actually eroded the standing and power of the executive before the Court—not just on national security fronts but, quite possibly, across a far broader field of regulatory initiatives.
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