Many years ago, I learned that under the American model of governance, Congress (the representative of the people) enacted legislation; the executive branch implemented the legislation; and the Supreme Court became involved, in rare instances, at the back end of the process. However, this model has, in a sense, been reversed when it comes to regulating carbon dioxide — a matter of enormous potential consequences for both the environment and the U.S. economy.
In 2007, the Supreme Court decided that carbon dioxide should be considered a pollutant under the Clean Air Act. It therefore held that the EPA had not only the power but the duty to regulate this gas. Thus, nine unelected individuals issued, in effect, a directive to the executive branch.
Yesterday, the bureaucrats at the EPA announced that carbon dioxide and several other gases pose a danger to the environment and the health of Americans and that, accordingly, EPA would begin writing regulations to reduce emissions. EPA’s administrator added, however, that she would prefer that Congress pass legislation to accomplish the same task.
As Sen. John Kerry aptly characterized the situation, “the message to Congress is crystal clear: get moving.”
Thus, the executive branch, in response to a directive from judges, is now attempting to pressure Congress into taking action that, from all appearances, Congress does not want to take.
If this is democracy, it seems like a new kind of democracy.
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