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Harold Pease, Ph. D

A new Obama executive order effectively legislates climate change. Not content with Congress’s unwillingness to legislate on climate change to his expectations, the president issued a November 1, 2014, executive order that creates a de facto legislative branch to do so. He titled it, “Preparing the United States for the impacts of Climate Change.” Neither Congress nor the scientific community is in agreement that climate change, when it is documentable, is man-made. As a result Congress is unwilling to legislate, tax and spend on this supposed problem until more confirming data is available. The President, in disagreement, seeks to make rules unilaterally as he has in other areas, despite the fact that he constitutionally is not empowered to make any law as per Article I, Section I.

This executive order begins, as do of all his executive orders, without identifying a single piece of legislation authorizing the order. It begins, “By the authority vested in me as President by the Constitution (the Constitution denies the President law-making power) and the laws of the United States of America, (none are cited) and in order to prepare the Nation for the impacts of climate change by undertaking actions to enhance climate preparedness and resilience, it is hereby ordered as follows.”

In the absence of a recently passed piece of legislation authorizing the order it is little more than a presidential decree. Amazingly the multi-page decree cites eight previous executive orders, two previous Obama Memoranda’s, and his Presidential Policy Directives-21, these scattered throughout the text, as authority, in sharp contrast to executive orders of previous presidents that cited pieces of actual existing laws passed by Congress. This president makes up his own authority “on the fly” and justifies it by previously made up authority and so far Congress says nothing.

It is obvious that this de facto legislative group will make the rules and regulations with respect to everything that they interpret to have anything to do with the environment. Those areas specifically mentioned were: infrastructure, fresh water, ocean water, fish, wildlife and plants. That is a broad sweep of authority none of which can be found in Article I, Section 8, or in any amendments to the Constitution enlarging federal power or jurisdiction thereafter.

Also obvious is that the decree is aimed at maximizing federal power over local governments as well. It identifies its mission as to “identify opportunities to support and encourage smarter, more climate-resilient investments by States, local communities, and tribes, including by providing incentives through agency guidance, grants, technical assistance, performance measures, safety considerations and other programs.” Incentives and grants are mentioned and, historically, have been used as bribes to draw local governments in.

This wordage is political speak for “we plan to control you.” The normal way to control local governments, as suggested, is to offer them federal money to accomplish federal objectives which will remain federally dominated and the locals are too often more than willing to sell their jurisdiction “soul” for a few dollars. Yes, some governors and a few selected county or tribe representatives will get invitations to serve on the task force, but the numbers will never be enough to overcome the federal majority serving.

Also always present, when the federal government is involved, is the cavalier attitude that they can make “smarter” decisions than local or state governments. This, though they often live hundreds of miles away and thus do not have to live with the decisions they impose on others and this, normally by unelected, thus unaccountable, bureaucrats.

Some defending the Presidents executive order practice of making rules may suggest, naively, that such are not laws and thus okay. The Founders made no distinction between rules and laws. The fact remains that regulations and laws have in common three things, they impose a process, administer a penalty, or prohibit an activity. Congress alone can make them and has no authority to give away her exclusive power to do so, whether called a regulation or a law, nor to allow the executive branch to do it for them. The people have the right to know that every restriction imposed upon their behavior was read and voted on by three elected, thus accountable, persons—their Congressman and their two U.S. Senators.

The constitutional response of Congress to the theft of their sole power to legislate, should be threefold: 1) renounce the President’s decree; 2) the House should refuse all funding to implement the decree as per Article I, Section 7; and, 3) both houses should create a joint committee to study the executive order evolutionary process, recommending additional measures to forbid the executive branch of government Congress’s sole law-making function. If Congress does not renounce this decree, rule making in the area of climate change will be left to the President’s cronies in the de facto “Congress,” created by this executive order.

Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution.