Our Broken Government

 Regarding the crisis in the Persian Gulf, nothing has happened in the last eleven days to alter the opinions that I expressed eleven days ago.  The same drama continues in slow motion, and the result--a resounding declaration of an historic victory after the US has abandoned many of its proclaimed goals--seems to me as likely as ever.  Cuba will be the next contestant on the reality show.

Just a few minutes ago I read through a long front-page story in today's New York Times, about the 2016 origins of Supreme Court emergency review.  Someone has leaked court documents to the Times, and they tell an amazing story of how Justice Roberts insisted on acting so as to prevent the implementation of President Obama's plan to move away from coal and towards natural gas, wind, and solar. (The story doesn't mention oil, oddly.  I tried to copy the share link for it--the free one--but apparently the Times won't allow that for this story, at least now. I'll check later.)  Remarkable enough in itself, the story also brought home to me what a wretched state our constitutional republic is in--and no, that is not merely the fault of Donald J. Trump.

When the Clean Air and Clean Water acts passed by huge bipartisan majorities in 1970 and 1972, Americans worried about poison in the air and water, but only a few scientists were voicing concerns about global warming.  The 1970 act defined pollutants very broadly and gave the new EPA the authority to regulate any pollutant that could "cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare."  The same act defined welfare as "effects on soils, water, crops, vegetation, manmade materials, animals, wildlife, weather, visibility, and climate, damage to and deterioration of property, and hazards to transportation, as well as effects on economic values and on personal comfort and well-being, whether caused by transformation, conversion, or combination with other air pollutants."  The Congress that passed those acts, let it be noted, was still dominated by members of the GI generation, whose young adult years had revolved around sacrifice for the common good, and who had had to learn to respect established procedures.  They were, for the time being, the last such American generation.  The inclusion of "climate" did reflect emerging concerns about the long-term effect of greenhouse gases on the earth's temperature, of which both Democratic Senator Ed Muskie, a major architect of the bill, and the Nixon White House were well aware. 

In 2007 the state of Massachusetts had sued the EPA arguing that the agency's obligation to protect the public welfare extended to regulating greenhouse gases, and the Supreme Court held, by a 5-4 vote, that greenhouse gases did fit the definition of a pollutant.  By this time, of course, climate change had become a very heated and partisan issue.  The financial crisis diverted attention elsewhere, and Barack Obama, elected the next year, quickly abandoned a proposed cap-and-trade system to regulate carbon emissions after Congress failed to act on it and he lost control of the House in 2010.  In 2016, however, with his second term winding down, his EPA issued sweeping regulations designed to change the shape of our power grid under the authority granted by the act as interpreted by Justice John Paul Stevens (the last GI to serve on the Supreme Court) in 2007.  The state of West Virginia and four other plaintiffs made an emergency appeal to the Supreme Court to stay the implementation of the regulation as on overreach of authority.  Justice Roberts on February 5, 2016, wrote an extraordinary memo to members of the court advocating granting the rehearsal.  It reads like a brief for the plaintiffs, arguing that the Court would probably rule against the EPA (as indeed it eventually did, with somewhat changed membership) and that the affected industries would suffer irreparable harm in the meantime if the court didn't act now.  As the Times explains in its story, five members, including the incumbent swing justice Anthony Kennedy, went along with him.  

The Times story focuses on this case as a procedural innovation, because the Supreme Court has decided an increasing number of cases in this emergency fashion, short-circuiting not only the role of the lower courts, but also the whole process of briefing and arguments by the two sides.  I will focus on the broader constitutional implications of the whole controversy.

I certainly would support drastic measures to change the shape of the power grid and reduce greenhouse gas emissions.  That opinion is reinforced by an experience I have just had--adding a heat pump system to the two floors of an old Victorian house in which I live.  This has allowed my wife and me to heat only the individual rooms we have to be occupying, rather than having to heat at least one whole floor at a time with oil.  It turns out that this is going to save us a substantial amount of money during the winter months.  The electric bills during the winter will approximately double, but that doesn't come close to the amount of money that we have been spending on oil, which has been reduced to a trifle (the oil has to kick in when the temperature is really low, well below freezing.) In other words, yes, our electric company burns fossil fuels to generate our electric power, but it evidently burns far less to generate the heat that our house needs than our oil heating system does.  

As it happens, however, the whole controversy over regulating greenhouse gases raises the question of how our democracy is supposed to work.  Most of the people I know, presented with the evidence that climate change is a serious danger and moving away from fossil fuels--or from how we use fossil fuels--could reduce it, would immediately conclude that yes, obviously the EPA should regulate them.  It would not in the least disturb them that the EPA in 2016 was relying on one word in the Clean Air Act of 1970, when no one was activating this kind of full-scale regulation, or that powerful economic interests continue to oppose this change. This is right, therefore it should happen, has been the mantra of liberal activists--and, for that matter, of conservative activists too--for decades now.  And that, in my opinion, is why our democracy is in such a mess.

Democracy can only work if we respect certain procedures, regardless of whether they always produce our preferred outcome or not.  I do not believe, sadly, that there has ever been a moment when the Congress would have passed a new piece of legislation or new amendments to the 1970 act that would have authorized the EPA effectively to make it impossible for coal-fired plants to operate any longer.  President Biden did pass significant incentives for increasing renewable energy production, although he had to couple them with other measures that would increase fossil fuel production, as well, but they passed with no bipartisan support.  That has allowed the Republican Party, which now controls both the Executive and Judicial branches of our government, to undermine them.

In fact--and this is the other point to be drawn from the Times story--the Congress, designed as the most powerful branch of our government, has become a bystander with respect to all the great domestic questions of our time.  Issues of race preference, of climate regulation, and of immigration are all fought out between the Executive, which decrees policy in various ways, and the Judiciary, which in turn rules on the constitutional propriety of what the Executive has done.  What shocked me about the Roberts memo (see above) was how completely it seemed to focus on the wisdom of the Obama administration's action, rather than its legality.  Both parties champion the power of the courts when they do not control the White House, and attack it when they do.  The Executive and the Judiciary are both staffed with highly educated Americans (I include the judicial law clerks as well as the judges themselves) who emerge from the educational system with strongly held views, either progressive or conservative.  The bulk of the American people play little or no role in all this.  It is not what the constitution intended.  Perhaps nothing can fix this except some new and terrible crises that requires genuine sacrifice by all of us to surmount--a test which we have failed repeatedly since 2001, as I have noted--or until a new generation grows up with respect for procedures and institutions, a recognition that we have to respect something more than our own preferences.   Meanwhile, this is where we are.