Network News

X My Profile
View More Activity
Posted at 1:50 PM ET, 12/27/2010

EPA action isn't 'unilateral'

By Jonathan Bernstein

The EPA acts and threatens more; James Joyner complains:

Presidents have, since the days of George Washington and Thomas Jefferson, made unilateral decisions arguably outside the scope of their Constitutional power and dared Congress or the Courts to stop them.   The  practice has  increased over time and been made easier by Congress having delegated much of its power to Executive agencies.   The consequence is an administrative state where the elected representatives of the people have a mostly reactive role, acting to check these agencies, rather than making affirmative decisions on national policy.

Conor Friedersdorf agrees:

Regardless of how Congress acts, I'd prefer it for that body to determine how the U.S. responds to the real phenomenon of climate change caused by greenhouse gasses. Of course, I'm an extremist who thinks that the legislature should even decide which countries our military drones are permitted to drop bombs on.

In both cases, when I hear what amounts to "the Constitution is not a suicide pact," I think to myself, "but disregarding its separation of powers might be."

Ah, I see the mistake here. "Separation of powers" isn't quite right, and executive branch agencies are entirely correct to act in these cases. At least with regard to the spirit of the Constitution.

I always trot out the same quotation from political scientist Richard Neustadt:

The Constitutional Convention of 1787 is supposed to have created a government of "separated powers." It did nothing of the sort. Rather, it created a government of separated institutions sharing powers" (Presidential Power, his emphasis).

What we were taught in 8th grade civics just isn't correct. Congress, the president, and the courts all do things that look like (that is, that are) legislating; they all do things that are really executing the law; and they all do things that are really judging. That's the system Madison and the rest gave us.  

Will the EPA act if Congress doesn't? Sure. But Congress did act: they set up the agency, gave it various statutory powers (which were then interpreted and refined by the courts), passed its budget, and confirmed the nomination of its administrator. There's nothing "unilateral" about it.  Assuming, that is, that the courts eventually agree that EPA is within its properly authorized areas.

Now, as a strong defender of an active Congress, I strongly agree that I'd like the First Branch to take an active role.  And Republicans who are going to complain about EPA action should perhaps look in the mirror; as with health care, the truth is that if a dozen Republicans had decided to work constructively on a climate/energy bill this past summer, they basically could have had anything they wanted, including the elimination of what they see as the EPA threat.  But it's also important to realize that Congress has always written vague legislation subject to interpretation by executive branch departments and agencies (and then lobbied those agencies to write the "correct" regulations, anyway). That's really all that's happening here. It's not a threat to the structure of the government -- it is the structure of the government.

Jonathan Bernstein writes about American politics, political institutions and democracy at A Plain Blog About Politics, and you can follow him on Twitter here.

By Jonathan Bernstein  | December 27, 2010; 1:50 PM ET
Save & Share:  Send E-mail   Facebook   Twitter   Digg   Yahoo Buzz   StumbleUpon   Technorati   Google Buzz   Previous: No, we don't want a Mr. Smith Senate
Next: Happy Hour Roundup


SCOTUS confirmed that the regulation of greenhouse gases is within the scope of the EPA. Congress failed to act, so now the EPA will.

Coulda, woulda, shoulda.

Posted by: suekzoo1 | December 27, 2010 2:11 PM | Report abuse

adn we see the false choice the liberals are offering us: have our economy destroyed for a hoax via congress or via executive fiat.

Bottom line: liberals seek to destroy the very society that has propelled us to greatness. And for what? So Gore Pachuri can rule the world based on some mythic fear that we are someone destroying a planet that has existed for how long?

Posted by: skipsailing28 | December 27, 2010 2:14 PM | Report abuse

Speaking of sharing power, Republicans are acting as if they took the Senate (though they might have had their Tea Party faction not intervened in a few races) and the White House too last month.
They don't have a slate of good prospects for 2012, so perhaps they need to relax or they will upset their base...for all they fail to accomplish with The House between now and 2016.

Posted by: shrink2 | December 27, 2010 2:18 PM | Report abuse

Extraordinary piece up at Dem Strategist. Hoping everyone will take the time to read and absorb it...

Posted by: bernielatham | December 27, 2010 2:25 PM | Report abuse

Extraordinary piece up at Dem Strategist. Hoping everyone will take the time to read and absorb it...
Excellent. I'm in my first reading...also the backup article...

Posted by: 12BarBluesAgain | December 27, 2010 3:02 PM | Report abuse

"Extraordinary piece up at Dem Strategist. Hoping everyone will take the time to read and absorb it..."

Of which a key theme is that the left put is hopes in Obama the Man. The One.

I.e., the left has been an Obama personality cult -- just one that developed into a dysfunctional relationship when O turned out not to be messianic after all.

Posted by: quarterback1 | December 27, 2010 3:13 PM | Report abuse

Another contribution to Bernie's thread:

Symbols and Substance

By James Kwak

Arnold Kling wins the prize for the most erudite post of the past week, a review of The Symbolic Uses of Politics, by Murray Edelman. Kling cites not only Sigmund Freud and J.D. Salinger, but Theodor Adorno and Seymour Lipset (with specific books, not just names), among others.

In Kling’s summary, Edelman divided the political sphere into insiders and outsiders (Kling’s terms). Insiders are basically special interests: small in number but well organized and with specific goals. Outsiders, or the “unorganized masses,” are the rest of us: we have some interests, but we are poorly organized to pursue them and therefore are generally unsuccessful. In particular, Outsiders suffer from poor and limited information, and therefore are especially susceptible to political symbols. In Kling’s words:

“Given these differences, the Insiders use overt political dramas as symbols that placate the masses while using covert political activity to plunder them. What we would now call rent-seeking succeeds because Outsiders are dazzled by the symbols while Insiders grab the substance.”

Posted by: 12BarBluesAgain | December 27, 2010 3:27 PM | Report abuse



Posted by: RainForestRising | December 27, 2010 3:36 PM | Report abuse

Joe Miller doesn't have to give up, he can book it over to Virginia and run against that RINO George Allen. Sheesh used to be you just talk about how you are just like Ronald Reagan, but no more.

Allen voted to expand the Hate Crimes Prevention Act to include crimes based on sexual orientation. He is dead to the Tea Party. I remember laughing at TP people a few months ago, as they were explaining they were only about small government and freedom etc. What BS. They are just the DeMint's "values voters", same as it ever was, same as it ever was.

Posted by: shrink2 | December 27, 2010 4:11 PM | Report abuse

If we see the kind of insider plundering I expect over the next two years, I don't think anyone will have to beg for grassroots protests, they will rise up on their own. So far, no one's taxes have gone up and only a few essential services have been cut. The public employees have suffered at the state level but not to the extent that those shaming them into submission can't counteract. Once they go after Social Security, Medicare, education, infrastructure, the environment etc. I think you'll see plenty of grassroots activity.

An interesting insight into the Federal Agencies and where their mandate comes from regarding which branch of the government. I know the goal of Republicans is to cut funding to not only the EPA but also the new financial reform regs and health care legislation. We'll have to wait and see how much people are willing to put up with but I'm getting a sense of what my New Year's resolution might be.

Posted by: lmsinca | December 27, 2010 4:17 PM | Report abuse

So opposing expansion of a federal hate crimes law (which btw lacks any constitutional basis) to cover sexual orientation is inconsistent with small government and freedom? Sure, makes perfect sense . . . in liberal upside-down land.

Posted by: quarterback1 | December 27, 2010 4:20 PM | Report abuse

We'll have to wait and see how much people are willing to put up with but I'm getting a sense of what my New Year's resolution might be.

If you've read Bernie's link above, you might be the only person on this blog who is actually an organizer. Do you agree? Not about the only person, but about being an organizer.

Posted by: 12BarBluesAgain | December 27, 2010 4:31 PM | Report abuse

You know, I've been pretty well tuned into the left wing blogs/websites for about 6 years now, and the only place where I see anyone referring to Obama as "The One" is in the postings of Rightwingers.

Another manufactured conceit of the Right, not surprisingly regurgitated here by someone who predicted the collapse of the Republic last week.

Posted by: ChuckinDenton | December 27, 2010 4:41 PM | Report abuse

12Bar, I'm not sure what your question is? Do I agree that I'm an organizer, or do I agree that we need to organize? I guess the answer to both is yes, but I consider myself a very small scale organizer on a purely local level. One thing I noticed during the HC summer from hell was the disruptions from Tea Partiers at the Town Halls got much more media coverage than all the silent vigils and protests in front of insurance industry buildings and Congressional offices that were organized by various progressive groups.

I think the one thing that discouraged most of us was how hard we all worked to generate the kind of public support needed for a public option or medicare buy in to see it evaporate up in smoke. And that was boots on the ground working the phones, walking, presenting petitions to Congressional offices etc. and we were successful but still lost the battle.

Posted by: lmsinca | December 27, 2010 4:47 PM | Report abuse

"...predicted the collapse of the Republic last week..."

The DOMA didn't save it?

Georgia Representative Bob Barr, then a Republican, authored the Defense of Marriage Act and introduced it on May 7, 1996. It moved through Congress on a legislative fast track and met with overwhelming approval in both houses of the Republican-controlled Congress. President Bill Clinton, a Democrat, signed it into law on September 21, 1996...In 2008, Congressman Barr apologized for sponsoring DOMA and said he thought it should be repealed, saying it violates the principles of federalism."

Posted by: shrink2 | December 27, 2010 4:53 PM | Report abuse


Bernie's link is really excellent and is a validation of, and recommendation for, the work you do--small scale, on a local level, organizing. If you haven't read it, I think you will find it worthwhile.

Posted by: 12BarBluesAgain | December 27, 2010 4:56 PM | Report abuse

Chuck, you must not have paid much attention to the Obama campaign, its rhetoric, or its throngs of ecstatics, famous and nonfamous. Here are some links to try to catch you up.

After all, his nomination was the first time Michelle was proud of her country.

Posted by: quarterback1 | December 27, 2010 5:17 PM | Report abuse

In case you didn't catch it, it was Oprah -- superstar Obama worshipper and promoter -- who most famously called him The One.

Posted by: quarterback1 | December 27, 2010 5:23 PM | Report abuse

"by someone who predicted the collapse of the Republic last week."

You really ought to try to stick to what people actually say.

Posted by: quarterback1 | December 27, 2010 5:26 PM | Report abuse


I read the post already and agree it's interesting. I think there has been more activist activity than people realize though, think DADT and the disruptions during some of Obama's recent speeches and people like Dan Choi and others. I believe they had a profound effect on moving the legislation forward along with the Pentagon report etc. I think you'll see more activity in the coming two years as conservatives (Republicans and Democrats) try to dismantle the safety net and other government programs.

Posted by: lmsinca | December 27, 2010 5:26 PM | Report abuse


Where in CA do you live? Maybe we're close?

Posted by: 12BarBluesAgain | December 27, 2010 5:32 PM | Report abuse


I live in the Inland Empire, Riverside County but I grew up in Orange County. We've been out here for 31 years. Where are you?

Posted by: lmsinca | December 27, 2010 5:35 PM | Report abuse


Contra Costa County. We're not that close, darn. I was thinking you could organize me, cause I sure need it. Lol.

Posted by: 12BarBluesAgain | December 27, 2010 5:38 PM | Report abuse

I meant, "collapse of the Republic, last week". Or did you not predict, if not exactly that in those exact words, substantially the same?

qb- you are no better than those you criticize when you resort to hyperbole.

Posted by: ChuckinDenton | December 27, 2010 5:39 PM | Report abuse

re: "The One"-

So you drop in a link that shows massive numbers of people at a rally? That's it? So what-the man is popular, perhaps, and I'm not surprised that you don't get it, is that he actually is rather humble and Europeans (in that photo) actually kinda dig that.

Another link where Hillary made fun of something Obama said? What did he *actually* say? "None of this would be easy". Wow. What a megalomaniac.

You all on the Right mistake Obama's recognition of the American people's need for change as somehow more of a need for Obama. 'Fraid not. What he *did* tap into was a great pentup frustration over W. coupled with intelligence, oratory and, dare I say, matinee good looks.

Posted by: ChuckinDenton | December 27, 2010 6:01 PM | Report abuse

I think we are on a road to destruction if we continue down the path of the Dems -- economic, cultural, spiritual, societal destruction. It might be a long road or a short one, but I doubt I said anything different last week.

Don't try to tell me that is shocking in this oasis of apocalyptic and fevered rhetoric.

Posted by: quarterback1 | December 27, 2010 6:02 PM | Report abuse

Take the blinders off, Chuck, and read the words.

You said only the right called him The One. Wrong. That was one of his great boosters, Oprah Winfrey.

Read Michelle's own words about here hubby.

If you don't see the megalomania in his campaigning at the Brandenburg Gate before throngs of worshipful, America-hating Germans, you need to open your eyes and your mind. He was running for POTUS.

Tell me another candidate who said that his election would be the day the seas stopped to rise and the world began to heal itself.

You claim this is all a myth concocted by the right. Funny how those on the left like Hillary and Ann Althouse made the same observations at that time.

You certainly are right that he used oratory and good looks. He had nothing else to run on. He was a back bencher without any qualifications or experience. It was all image and grandiose dreams.

Posted by: quarterback1 | December 27, 2010 6:10 PM | Report abuse

Then again, qb, maybe you are correct-maybe he *is* The One: "The Most Admired Man in The World" according to Gallup:


Posted by: ChuckinDenton | December 27, 2010 6:12 PM | Report abuse

I'm sure he drinks Dos Equis, too.

Posted by: quarterback1 | December 27, 2010 6:19 PM | Report abuse

As Chuck points out:

WASHINGTON - President Obama has topped the most-admired-man list again this year, while Hillary Clinton extended her long reign as the No. 1 woman.

Obama was the runaway favorite in the Gallup Poll released yesterday, with 22% giving him the nod as most admired worldwide.

Among the most admired women, Secretary of State Clinton was first for the ninth year straight year with 17%, trailed by Sarah Palin for the second year. Palin was rated at 12%
Obama is THE ONE.


Posted by: 12BarBluesAgain | December 27, 2010 6:29 PM | Report abuse

What else should we expect? The guy was given the Nobel Peace Prize just for getting elected.

Posted by: quarterback1 | December 27, 2010 6:36 PM | Report abuse

There are two items in your post @ 6:10 shows me two important things about your POV:

1. Some on the Right will never forgive Michelle for that statement.

2. Some on the Right continue to conflate foreign disapproval of American *government* with America.

All this "The One" business is a phrase glommed onto by critics ready when he fails. Sad that y'all would even care what Oprah says about anything, but, hey what are Glenn Beck's ratings these days?

re: "backbencher". I guess Lincoln was one as well. "I'll take 'Backbenchers From Illinois' for $200, Alex'".

Posted by: ChuckinDenton | December 27, 2010 6:37 PM | Report abuse

hey what are Glenn Beck's ratings these days?

You couldn't set it up better. According to the same Gallup poll, Obama got 22%. Beck got 2%.

Even among Republicans, more admire Obama than Beck.

Posted by: 12BarBluesAgain | December 27, 2010 6:45 PM | Report abuse

It isn't a matter of forgiving Michelle. It was a statement she made in a prepared speech more than once and reflected an important aspect of the Obamas' mindset, consistent with many other campaign statements she made, like her condemnation of the country as "downright mean." We aren't going to forget that. But then, it isn't hard, when we continue to be lectured and scolded by both Obamas.

Foreigners who despise America tend to want it to acquiesce to their wishes and to be subject to their vision for us. They hate a strong America that protects its interests and allies and does not apologize for it. Obama campaigned on foreign soil to those very sentiments. You can slice the bologna as thin as you like. It was a bizarrely anti-American performance by a candidate for POTUS and one that helped show us that, as Krauthammer or Davis later said, he appears to be the only POTUS who actually considers the job beneath himself.

You are getting confused. I didn't and don't endorse the left's treatment of him as The One. I mock it as a dangerous delusion.

It's sad that you make believe all conservatives get their ideas from Glenn Beck. All you do when you repeat that bunk is show yourself to be ignorant and sheltered.

Posted by: quarterback1 | December 27, 2010 6:52 PM | Report abuse

But then, it isn't hard, when we continue to be lectured and scolded by both Obamas.
In two short paragraphs, you manage to lecture and scold that people with whom YOU disagree are confused, delusional, ignorant and sheltered.

If you know how unpleasant it is to be lectured and scolded, why do you do the same? I find you to be a lecturer and scolder.

Posted by: 12BarBluesAgain | December 27, 2010 7:00 PM | Report abuse

"If you know how unpleasant it is to be lectured and scolded, why do you do the same? I find you to be a lecturer and scolder."

So don't read my comments.

I read this same nonsense day in and day out that everything a conservative says is a Glenn Beck talking point. It's beyond stupid and in fact reflects exactly what I said: ignorance and seclusion from reality. I was a conservative before Glenn Beck knew what one was, let alone before anyone had heard of him, and he'll never have the grounding I do. I get exactly NO ideas from him. If you haven't met an educated and informed conservative in real life, you by definition live a sheltered life. I'd hate to think what your college experience was like.

So when some liberal yet again suggests I am a mindless Glenn Beck sock puppet, I'm going to tell that person he is ignorant. I rarely even hear the guy; he annoys me.

Posted by: quarterback1 | December 27, 2010 7:17 PM | Report abuse

["If you know how unpleasant it is to be lectured and scolded, why do you do the same?"]

Because Reich Wingers tend to be self-righteous hypocrites.

This has been yet another edition of Simple Answers to Simple Questions.

Posted by: jiji1 | December 27, 2010 7:21 PM | Report abuse

Huh ?!?! I thought the point of this post was that Joyner and Fridersdorf are totally ignorant about the facts of the case. Reading it, you seem to be just as ignorant.

Congress has acted already when it passed the Clean Air Act. That act of Congress, signed into law by a President, compells the EPA to regulate CO2 emissions now that it is known that they have damaging effects.

This isn't just my personal opinion. It is the Supreme Court's opinion in the case of vs EPA. Try checking my claim of fact in this obscure publication

Nothing could be further from unilateral executive branch action than an action ordered by the Supreme Court based on its interpretation of current law.

I do mean that literally. No executive action has been less unilateral than this one in US history (some have not been more unilateral). Facts are facts. Supreme Court decisions are not obscure events.

Posted by: rjw88 | December 27, 2010 11:09 PM | Report abuse

I was told by a friend that something called "Wise Health Insurance" is offering health insurance plans starting just $1 a day. That is some thing we all can agree.

Posted by: kathrynmuniz | December 28, 2010 2:08 AM | Report abuse

oy. I was comparing Oprah with Beck. No *doubt* there are more deep Conservative minds than Beck, eh?

Posted by: ChuckinDenton | December 28, 2010 3:13 AM | Report abuse

Post a Comment

We encourage users to analyze, comment on and even challenge's articles, blogs, reviews and multimedia features.

User reviews and comments that include profanity or personal attacks or other inappropriate comments or material will be removed from the site. Additionally, entries that are unsigned or contain "signatures" by someone other than the actual author will be removed. Finally, we will take steps to block users who violate any of our posting standards, terms of use or privacy policies or any other policies governing this site. Please review the full rules governing commentaries and discussions.

characters remaining

RSS Feed
Subscribe to The Post

© 2010 The Washington Post Company