WE HAVE OUR CONSTITUTIONAL CRISIS AND NO ONE IS NOTICING
Of all of the dubious legality moves by the Trump Administration, of all of the explosive cases those moves might put before the Supreme Court, this week’s announcement that Trump has challenged the full swathe of state action on energy and climate issues is the nuclear option. If the Administration were to be permitted to implement even part of Trump’s vision it would be the end of the American constitution and our federal system.
Trump ordered the Justice Department to block all “burdensome and ideologically motivated ‘climate change’ or energy policies that threaten American energy dominance and our economic and national security.”
He stakes out any “state laws and policies … fundamentally irreconcilable with my Administration’s objective” Mr. Trump said in the order, adding, “They should not stand.”
You couldn’t make it clearer: states are creatures of the White House, just like federal agencies.
The Constitutional threat couldn’t be clearer: the 10th Amendment says clearly, “The powers not delegated to the United States by the Constitution … are reserved to the States respectively….” Trump proposes to govern in a directly opposite direction. The Constitution would be over.
The Civil War exploded over much less massive threats to state autonomy — but who would have thought that the first real challenge to state independence would come from the right, not the left?
To make clear how broad is claim of new federal control is, Trump enumerates a list of claims of federal preemption (here described in constitutional, not climate terms):
Prohibited would be:
a) State regulation of pollution emitted within state limits,
b) State limitations on environmental damage from generation of electricity,
c) requirements that motor vehicles offered for in-state sale must meet emission or safety standards,
d) state implementation of the well-established policy power to regulate commercial activities, of which Trump say, “Some States delay review of permit applications to produce energy, creating de facto barriers to entry in the energy market.” Indeed, they do. It is their job to create barriers if that benefits their citizens.
e) Require compensation for damages to state residents from greenhouse gas emissions statutory or common law fees or taxes on fossil fuels production, sales or emissions
I have listed taxes at the end because nowhere has the Supreme Court been more vigilant in defending a state’s rights to differ from federal example than on taxation, and Trump in attacking the right to tax is most devastatingly threatening the federal system. His claim on this topic is chilling: it’s unconstitutional “when States subject energy producers to arbitrary or excessive fines through retroactive penalties or seek to control energy development, siting, or production activities.”
Listen again to our new President: It is unacceptable if states seek “to control energy development, siting, or production.” There has been considerable speculation that Trump might provoke a constitutional crisis over some untested or uncertain limit on the role of the President, implicating his degree of control of the Executive Branch of the federal government. But this challenge is hugely larger: it is frontal, not marginal, foundational, not untested, and to state governments, not federal. Justice Roberts, widely believed to seek to avoid a constitutional crisis, will be put to the test in trying to avoid one if Trump really tries to implement the vision he articulated this week.