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Her unlawful fracking ban is but the tip of an unconstitutional iceberg
Late last week CNN hosted ten back-to-back “climate crisis town halls” with Democratic presidential candidates, and while there is much to say about the candidates’ disputes (particularly about nuclear power), it was an Elizabeth Warren tweet the next day that truly caught my eye. Here she is, announcing yet another “plan” she has for “everything”:
On my first day as president, I will sign an executive order that puts a total moratorium on all new fossil fuel leases for drilling offshore and on public lands. And I will ban fracking—everywhere.
— Elizabeth Warren (@ewarren) September 6, 2019
Yep, she’s going to ban fracking. When I read the tweet, I flashed back in my mind to Ronald Reagan’s famous retort to Jimmy Carter in a 1980 presidential debate — “There you go again.” Here the “again” isn’t just proposing a bad plan (it would have extraordinary negative effects on domestic energy production and would likely increase dependence on more “dirty” fuels to generate power), it’s proposing an illegal policy. She simply can’t ban fracking on her own.
In fact, the executive branch’s authority over fracking is rather profoundly limited by statute. Beginning in 2012, the Obama attempted to introduce “additional regulatory effort and oversight” of fracking by introducing new regulations through the Bureau of Land Management (BLM). In 2015, the states of Wyoming and Colorado filed petitions for judicial review of the Obama regulations, and on June 21, 2016, federal district court judge Scott Skavdahl (an Obama appointee) held that the fracking rule was “unlawful.”
His opinion hearkened back to the basic separation of powers that’s at the heart of our federal system. In 2005, Congress passed the Energy Policy Act, describing it as “a comprehensive energy bill addressing a wide range of domestic energy resources, with the purpose of ensuring jobs for the future ‘with secure, affordable, and reliable energy.” That bill quite specifically and intentionally granted fracking extraordinary protection from EPA regulation.
The Obama administration creatively attempted to circumvent limits on EPA jurisdiction by using the BLM to accomplish the same purpose. The judge wasn’t having it. His reasoning was sound: “If agency regulation is prohibited by a statute specifically directed at a particular activity, it cannot be reasonably concluded that Congress intended regulation of the same activity would be authorized under a more general statute administered by a different agency.”
In other words, say goodbye to President Warren’s unilateral fracking ban.
Sadly, proposing unconstitutional laws is a bad habit for Elizabeth Warren. Her crowning legislative achievement is the Obama-era creation of the Consumer Financial Protection Bureau, a bureaucracy that was designed to exist outside our nation’s system of checks and balances. It’s now in the center of its own constitutional battle. In 2016, a three-judge panel of the United States Court of Appeals for the D.C. Circuit ruled that it was “unconstitutionally structured.” According to the court:
The CFPB’s concentration of enormous executive power in a single, unaccountable, unchecked Director not only departs from settled historical practice, but also poses a far greater risk of arbitrary decisionmaking and abuse of power, and a far greater threat to individual liberty, than does a multi-member independent agency.
Yes, the full D.C. Circuit later reversed this ruling, but it’s notable that the author of the original ruling was none other than Brett Kavanaugh, now an associate justice of the Supreme Court. And last June another federal court ruled it was unconstitutional, while just this Friday the Fifth Circuit Court of Appeals issued an opinion in a separate case that also casts serious doubt on the constitutionality of the CFPB.
Warren’s most significant creation is on constitutional life support, and the prognosis is not good.
But that’s not all. How does Warren propose to regulate guns? In part by using unilateral executive action to enact background checks that would be constitutionally suspect even if enacted by statute. Moreover, she would unilaterally reinterpret the clear language of federal statutes to impose “all federal gun rules” even on those individuals who’ve not been traditionally deemed “engaged in the business” of dealing in firearms.
In fact, the entire plan relies time and again on Warren’s pledge to stretch and extend regulations far beyond the language and intent of their enabling statutes — a move sure to spawn a wave of litigation in front of rightly skeptical federal judges.
But let’s not forget Warren’s vaunted wealth tax. Unsurprisingly, it also has constitutional problems. While the Constitution plainly (thanks to the 16th Amendment) allows for taxes on income, any other form of “direct tax” must be “in Proportion to the Census or Enumeration.” There are thoughtful progressive law professors who believe the “spirit” of the 16th Amendment could make the tax constitutional, but I’m skeptical — and I’m hardly alone.
I could go on. I will go on. Her signature proposal for protecting Roe v. Wade is to propose federal legislation that would create a national statutory right to an abortion, overriding each and every contradictory state law in America and representing, and advancing an extraordinarily expansive view of the commerce clause, one inconsistent with the Supreme Court’s recent holding in the Obamacare case. As the Court noted, the Constitution gives Congress “the power to regulate commerce, not to compel it.”
Time and time again, the pattern is the same. She’ll push regulatory authority beyond the statutory limit. She’ll push statutory authority beyond the constitutional limit. In so doing, she’d represent the next stage in imperial presidential evolution — reaching beyond both President Obama and President Trump, two men who have had their own problems staying within their constitutional boundaries.
If Warren does become president, she — and her voters — should prepare for profound disappointment. She has plans, but many of those plans won’t survive their first contact with the courts. Indeed, many of her plans are so politically and/or legally unrealistic that they represent a virtual political con job. That’s certainly par for the course for modern politics, but America needs to understand that the Democrats’ law professor-politician is making promises that the Constitution simply won’t let her keep.