The reason this is so notable is that the EPA is a Federal Agency run under the Executive Branch. Constitutionally speaking, they trump states. However, to gain some perspective, let’s look at another constitutional hot-button issue, guns.

Gun ownership is protected under the 2nd Amendment to the Constitution. However, states have varying levels of strictness when it comes to gun-control laws. As a result, we have, let us say, a “patchwork of different standards” applying to the global issue of guns. And while it is addressed on the national level, it is ALSO being addressed on a local one.

The Clean Air Act is not a Constitutional mandate, but a Congressional one, giving an Executive agency authority. Essentially, it has less teeth than the 2nd Amendment. So why is the EPA rejecting California’s right to enforce stricter laws?

I’d prefer not to openly speculate about the nobility of the Bush administration’s intentions, but there is no other reasonable explanation for such an act. This is part of an ongoing effort to consolidate power and create a “wealthocracy” – rule by the wealthy and powerful, especially corporate interests. Unfortunately, rule by a few corporate special interests already has a name – fascism. It is becoming increasingly likely that the sovereign power held by people through elected officials is being squandered on those with money, and those with power.

Good luck to California (and the other states joining CA) in trying to assert those often-ignored 10th Amendment rights.

Basically, the Bush administration is no longer trying to execute the law, but write it and interpret it at the same time. There was a reason the Founders divided power. There was a reason people hotly contested the Constitution: absolute power leads invariably to tyranny. The President, in 18th century terms, had very little power. In American 18th century terms, the President had too much.

Fast forward to today. Including signing statements and other initiatives, the President has invoked his (office’s) authority to:

1. Strip habeas corpus from human people. (The Republican Congress later made it legal)
2. Interpret Sarbanes-Oxley’s whistleblower protection to mean whistleblowers are not protected (the last paragraph says that whistleblowers can only blow whistles in ongoing investigations, and to only the House or Senate member who chairs the committee investigating the law).
3. Start an illegal war.
4. Manage that illegal war without oversight.
5. Appoint under-qualified people to important posts.
6. Decide that foreign aid means no contraceptives.
7. Refuse to fund, though it is supposed to be funded by law, No Child Left Behind
8. Interpret an torture-banning act to allow for torture.
9. Initiate illegal warrentless wiretapping against Americans.
10. Create a program for warrentless search of the U.S. mail.

So then, when it comes to protecting the environment, you would think that this administration would have no problem saying, “It’s our country, and we have the authority to assert the rules upon the states.” But they don’t. They do the opposite – they claimed that the Clean Air Act, as written, does not explicitly allow for the Executive to control carbon emissions. This is particularly ironic, because the law explicitly states that the EPA is required to regulate carbon emissions. I mean, it’s written right there.

So the Supreme Court of the United States, in a 5-4 decision, said, “Wait… Umm… It’s written right there. The states that sued you are right, you have broken the law.” So yay for SCOTUS for calling them out. Boo to SCOTUS for not being unanimous, or at least more resounding. Okay, you can expect Scalia will dissent because he is a true Republican Party hack (as far as I have seen), he is an immovable capitalist and authoritarianist, and he thinks the Constitution couches all power with the executive branch. And you can expect Thomas to follow, because he agrees with Scalia.

But magic boy-wonder Roberts? His dissent is one of the most flippant and political I’ve seen. He depends on the fact that those that sued the EPA did not refer to a case that seemed to contradict them, in terms of whether states can bring the case to the Supreme Court

All of this presumably explains why petitioners never cited Tennessee Copper in their briefs before this Court or the D. C. Circuit. It presumably explains why not one of the legion of amici supporting petitioners ever cited the case. And it presumably explains why not one of the three judges writing below ever cited the case either.

Ummm… A little too emotional response, if you ask me. Also…

Apparently dissatisfied with the pace of progress on this issue in the elected branches, petitioners have come to the courts claiming broad-ranging injury, and attempting to tie that injury to the Government’s alleged failure to comply with a rather narrow statutory provision. I would reject these challenges as nonjusticiable. Such a conclusion involves no judgment on whether global warming exists, what causes it, or the extent of the problem. Nor does it render petitioners without recourse. This Court’s standing jurisprudence simply recognizes that redress of grievances of the sort at issue here “is the function of Congress and the Chief Executive,” not the federal courts.

Now, if the EPA, an executive agency, is not responding to the legal requests/demands of states, then states have redress to Congress. If Congress does not respond, who do the states have redress to? The courts. The President said the EPA does not need to do something, and bills introduced to Congress to enforce environmental regulation have been knocked down. Chief Justice Roberts is wrong: the federal court is where the states go. There’s nowhere else left to go. It disappoints me that this argument, the one on which he rests his entire position, is so weak that a pop-constitutionist can poke holes in it.

Why the Constitution? It is the central founding document of the United States, and its efficacy has slowly waned over the years, as interpretations on top of interpretations have created an edifice of government where sovereign power is not being vested in the people (as in, “We The People”). My contention is that the Constitution needs to be adjusted to re-assert our power. This is where Article V comes in…

Article V of the US Constitution concerns making changes to the Constitution. Because the Constitution actually is the design of the US government, changing aspects of the Constitution changes the way government works. Which means Article V is not only powerful, it can be the tool (weapon?) of the populace against an increasingly oppressive government.

Article V, unlike some aspects of the Constitution, is quite unambiguous in its focus and intent. It is the “if it is broke, fix it” clause. It was expressly written in as a government tyranny check.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Here’s the gist:

1. If two-thirds of each the Senate and the House of Representatives pass a proposed Constitutional Amendment, that amendment must also be passed by three-fourths of states, either by the legislature or by state conventions (at the Congress’s discretion). This is the only part of this article that has ever been applied.
2. If two-thirds of states call for a Constitutional convention, one would be called. Proposed changes to the Constitution that come out of the Convention must be passed by three-fourths of the states.

Nobody has tried part two. Constitutional scholars believe it is partly out of fear – the Constitution’s own ratification violated the rules of the existing US government, the Articles of Confederation. Any constitution that comes out of a convention may rewrite American government as fundamentally as THE Constitution did.

At this point in time, the system is broken. It is time to fix it. I think people of America have enough care and belief in the Constitution that it will not be scrapped, but the people need a legal and strong forum in which to control their government and reign in tyranny. The key is part two – Constitutional Convention.

This blog explores the strengths and weaknesses of the Constitution, its application, and how to improve it.