By Dr. Harold Pease
On November 1, 2013, President Barack Obama, by executive order entitled “Preparing the United States for the impacts of climate change,” decreed himself to be over climate control—this without a shred of constitutional authority. Executive Orders have the force and effect of law and only the Legislative Branch is empowered to make federal law (Art. I, Sec. I, Clause I). Moreover, Article II, which houses a president’s power, does not list anything remotely similar to climate control regulation. As such the states alone have all non-delegated powers and unless they forfeit that power to him by way of an amendment, as per Article V, he is not only stealing Congress’s power to make law but also the states’ sole jurisdiction over climate regulation, if any.
The E.O., begins: “By the authority vested in me as President by the Constitution and the laws of the United States of America, 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.” Then follows five pages of small print outlining the “actions” that will be. But there is no authority actually cited, as has been the practice with previous presidents, because there is none. He made it up.
The Order establishes a Task Force consisting of seven Democratic Governors and the Republican Governor of Guam together with 14 mayors, two county officers and two tribal representatives, also mostly Democrats. They are charged with working with state and local officials “to strengthen climate resilience,” (a buzz word for more control of state and local functions) and helping local governments “make smart decisions.” Smart decisions imply falling in line with, in this case, Democratic Party federal government thinking. Many of us remember the Environmental Protection Agency similarly created by a Richard Nixon executive order some 43 years ago and how it now influences a sixth of the economy. Government likes to grow.
By a mere stroke of a pen one man, with no authority to make rules for us, initiates a process to unleash mountains of new regulations on unsuspecting farmers, businesses, and property owners, as happened with the EPA, in this case dealing with droughts, flood control, carbon emission, wildfires, green space and who knows what else. Businesses will have to fill out a Climate Action Plan before they can proceed. Building codes will have to be updated. I see sweeping new changes to land use and resource policies. I see a further weakening, almost to non-existence, of state, county, and city jurisdiction and in turn the amplification of federal power over every person in the United States. One builder once told me that a third of the costs of a new home was compliance with EPA rules. Perhaps a similar amount will be needed to meet all the new mandatory climate guidelines.
But the biggest damage is what it does to the Constitution when the executive branch replaces Congress as the lead rule-making body. When Congressmen, because of loyalty to party rather than to the Constitution, excuse their president, as did Republicans under Nixon in 1970 and Democrats now under Barack Obama, become too weak to take back their power. When States no longer have the will to use the Doctrine of Nullification, as did their predecessors, in 1800, 1832, and in the 1850’s to preserve federalism and the Tenth Amendment to the Constitution. When the Constitution is revered in name only, which is becoming common to both parties.
Of course, as with all federal programs, states, counties, and cities will be funded as they fall in line with “smart decisions.” In 43 years from now will climate related rules and regulations, emanating from an unelected bureaucracy, dictate another one-sixth of the economy? The EPA precedent says yes.
The Founding Fathers’ concept of separation of powers has been heavily altered between these two imperialistic presidents—Nixon and Obama. The Constitution allowed only the Legislative Branch to make federal law. A law’s review by 536 individuals (435 members of the House, 100 Senators and 1 President) served as a filter for bad law as only one bill in thirty survived to enactment. Congress must say no to this and any executive order that has the effect of making law. We must return to the Constitution with Congress alone making all federal law or, in time, we will lose the rest of our liberty.