The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

Could the federalism arguments in King v. Burwell sink the EPA's 'Clean Power Plan'? Prof. Larry Tribe thinks so.


I've previously noted that the federalism arguments deployed on behalf of the IRS rule authorizing tax credits on federal exchanges have the potential to disrupt other federal programs if adopted by the Supreme Court in King v. Burwell. Environmental programs, including portions of the Clean Air Act, could be particularly vulnerable. Testifying today before the House energy and Commerce Committee on the Environmental Protection Agency's proposed regulations to control power plant emissions of greenhouse gases under CAA Section 111(d) , Harvard law professor Laurence Tribe made much the same point:

EPA's plan will force States to adopt policies that will raise energy costs and prove deeply unpopular, while cloaking those policies in the Emperor's garb of state "choice"—even though in fact the polices are compelled by EPA. Such sleight-of-hand offends democratic principles by avoiding political transparency and accountability. "[W]here the Federal Government directs the States to regulate, it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision." As Justice Alito recently observed, "[l]iberty requires accountability." "When citizens cannot readily identify the source of legislation or regulation that affects their lives, Government officials can wield power without owning up to the consequences." Accordingly, EPA's gambit would mean citizens surrendering their right to be represented by an accountable and responsive government that accords with the postulates of federalism.

Alternatively, if a State plan does not meet with EPA's approval, EPA claims the power to impose severe sanctions, including the loss of highway and Clean Air Act funds, as well as the imposition of a centrally planned and administered federal scheme that could harm not simply the State but also its citizens and economy. As noted by Jody Freeman, the former senior counselor for energy policy in the White House, the prospect of a federal plan "would put states at a huge disadvantage if they choose not to file a plan," because "EPA may not have the best plan for each state." That admission essentially concedes that EPA's proposal puts a gun to every State's head.

In this respect, the federalism principles at issue here are strikingly similar to those that arose in the Affordable Care Act case of King v. Burwell, argued in the Supreme Court on March 4. There, Justice Kennedy, among others, noted the "serious constitutional problem" that would result if a federal statute were interpreted as threatening the citizens of a State with significant injury unless the State agreed to follow federal policies. This case involves the same pressures on States to knuckle under to the Federal Government, and the same lack of clear notice. EPA's plan confronts the States with an unforeseeable choice and essentially remakes the agreement between them and the Federal Government that has existed since the Clean Air Act was enacted in 1970. States could not have expected, when they adopted costly implementation plans to regulate conventional pollutants like NO2, SO2, and particulates from sources like power plants, that EPA would also seek to phase out those plants altogether by dictating sweeping rules to regulate CO2, which is produced by every human activity. No State could have anticipated this bait-and-switch when the Clean Air Act was enacted in 1970 or last revised in 1990. The Supreme Court has explained that the "legitimacy of Congress's exercise of the spending power" "rests on whether the State voluntarily and knowingly accepts the terms of the 'contract.'" "Respecting this limitation is critical to ensuring that Spending Clause legislation does not undermine the status of the States as independent sovereigns in our federal system."

EPA's plan spectacularly fails that test, and the rule of law commands us to be consistent. Some people seem to practice "fair weather" federalism, rediscovering States' rights when it allows them to sustain a federal policy they favor, but abandoning the same principles when it suits them. The Constitution demands more than that.

(citations omitted)

Professor Tribe believes the government should prevail in King, and thinks the federalism arguments could make the difference. I obviously disagree. Where Professor Tribe and I agree, however, is that if the King plaintiffs' interpretation of the ACA is coercive, then so too is the EPA's interpretation of the CAA.

Josh Blackman has more here.