“I have an Article II where I have the right to do whatever I want as President.”
Donald Trump, July 23 2019 address to the Turning Point youth conference
Next week’s act in the tawdry show of US national politics will be led by the beginning of senatorial debate over the nomination of Amy Coney Barrett to succeed Ruth Bader Ginsburg as an associate justice of the US Supreme Court. Both Democrats and Republicans will claim the appointment’s confirmation will change the court for decades.
Not really. The more dramatic swing of court control to the organised rightwing of the legal profession already happened back in 2018, when Brett Kavanaugh replaced the “swing vote” of Anthony Kennedy.
Having “won”, the conservative legal movement is on the verge of a momentous split, one with serious implications for environmental, energy and financial regulatory policy. The faction represented by attorney-general William Barr, which asserts the notion of the “unitary executive”, reached its apogee under the Trump administration. The quote above summed up this philosophy very neatly.
The unitary executive faction believed that there could be no allowance for independent judgment on the part of agencies such as the Environmental Protection Agency, or sections of departments such as the prosecutors in the Southern District of New York. As Mr Trump would say, those are all “his”.
But many of the “textualists” and “originalists” among the conservative judicial activists are privately horrified by Mr Barr’s aggressive interpretation of the executive branch’s authority. As they will point out, the president may have Article II, but Congress’s authority comes under Article I.
Both judicial conservatives and progressive activists now tend to agree that a president’s use of his executive war powers, and the latitude given to regulatory agencies such as the EPA, have to be curtailed and initiative returned to Congress itself.
Leftwing and rightwing fantasies of a “deep state” with the power to control a president’s behaviour are much less tenable after the Trump administration. Assuming, as the gaming odds do, that Mr Trump loses the election, Mr Barr’s unitary executive faction will lose their ability to hand out jobs to the minority of conservative lawyers they represent.
Still, a textualist Supreme Court will be in place for more than a decade. That means that when a Biden administration rejoins the Paris climate agreement, there will be less willingness by the court to accept arguments that excessive carbon emissions violate “customary international law”.
Ginsburg was a voice on the court for respecting international agreements and understandings that are not formally enshrined in treaties, such as the custom of rescuing mariners at sea or the climate commitments in the Paris accords. Ms Barrett has explicitly questioned the relevance for the US of customary international law, as distinct from Senate confirmed treaties.
This does not mean a Biden administration could not use existing laws, in particular the Clean Air Act, to enforce dramatic cuts in greenhouse gas emissions by regulations issued through the EPA under existing law. For example, the Obama administration’s now-withdrawn Clean Power Plan would have put gradually increasing burdens on coal-fired power plants. But Mr Trump cancelled it.
A Biden administration could simply declare coal ash a hazardous substance under the EPA’s existing authority, with a fairly short compliance period. Even the yet-more-conservative Supreme Court would probably agree that was within EPA’s existing authority.
The Biden EPA could also impose tighter regulation of methane emissions under existing law. That would tend to raise the cost of drilling, and, therefore, the gas and oil prices at which new drilling would take place. That would tend to increase the profitability of incumbent producers.
And now the political economy of the energy industry has changed. Coal producers are, as a group, already broke. Two oil majors, Royal Dutch Shell and BP, are seen by the fossil fuel bar to have thrown their lot into becoming regulated utilities.
Non-US financial companies would like to have some relief against what have been relentless extraterritorial financial sanctions that reached their peak under the Trump administration. It is possible that international financial sanctions imposed by bureaucratic processes hidden in the US Treasury might be challengeable in a Supreme Court that has become more hostile to arbitrary actions by administrative agencies.
So no, a Supreme Court firmly cemented on the right does not mean the end of hope for climate policy or for a liberal international order. It does mean that activists must put less faith in arcane regulatory tweaks and more effort into passing laws through Congress.
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