An overzealous Environmental Protection Agency is waging war on industry across the nation, and it’s time for the states to strategize for a long-term victory.
But a sound strategy for confronting federal overreach, reclaiming states’ rights, and preserving individual liberty requires that we refuse to be satisfied with a defensive strategy against each new EPA masterplan. Rather, we must regroup and implement a solution that will send bureaucrats packing — out of our industries, farms, and wallets.
We must use the constitutional amendment process to reverse bad Supreme Court precedent that has handed the keys to the kingdom to swarms of unelected, unaccountable pencil pushers.
The EPA’s war on coal is an attempt to steamroll the statutory limit on its authority in the Clean Air Act. The steamrolling effort is made possible by a landmark Supreme Court decision from 1984, Chevron. v. National Resources Defense Council, which gave us the “Chevron Test” for evaluating agency actions.
Essentially, if there is any silence or ambiguity in the language of a statute, then courts will uphold the agency’s action as long as it is a permissible interpretation of the law. In other words, an interpretive tie goes to the bureaucrats.
This puts power tools in the hands of bureaucrats who are already predisposed to chip away at the limitations of their authority. It invites every administrative agency to expand its power through creative statutory interpretations that might be considered by some federal judge to be permissible.
As it turns out, federal bureaucrats are creative geniuses when it comes to interpreting their statutory authority. Their creativity mirrors that of the executive, legislative, and judicial branches in interpreting the Constitution itself.
Invariably, all this interpretive creativity comes at the expense of states’ rights. In fact, this very war on coal is an example of how much the states have already lost, for this battle is a tug-of-war over a federal law over an area of policy that rightfully belongs to the states.
The states are well-equipped to win this war on federalism decisively, but victory requires them to use the one effectual constitutional tool at their disposal that, until now, they have entirely neglected.
By invoking Article V’s state-controlled process to propose constitutional amendments, the states can foreclose the feds’ opportunity to lawyer around limitations on their authority. The states can definitively end not only the EPA’s bullying of America’s productive industries, but also hundreds of other instances of overreaching by bureaucrats, the president, Congress, and even the Supreme Court.
A constitutional amendment could easily overrule Chevron’s “tie goes to the agency” framework and replace it with a rule that where Congress’ intent is unclear, the agency may not act.
But more importantly, a constitutional amendment could limit the power of Congress to interfere with policies that the Constitution reserved to the states.
For example, an amendment could overturn the current, overbroad interpretation of the Commerce Clause, which was originally intended to merely allow Congress to regulate interstate shipping, but now gives Congress a breadth of powers that would have been unimaginable to our Founding Fathers.
Constitutional amendments have long been successfully used to reverse bad Supreme Court interpretations that perverted the true spirit of our nation and the proper functioning of our government. Consider how effectively the Fourteenth Amendment reversed the Supreme Court’s denial of citizenship to African-Americans in Dred Scott v. Sandford.
We have come to a point in our nation where our federal system — consisting of a limited national government and independent, powerful state governments — demands the kind of systemic repair that only the constitutional amendment process offers.
A movement has arisen across America to make this happen, using Article V’s convention process for state-initiated amendment proposals to limit the scope and power of Washington, D.C.
Thomas Paine said, “Those who expect to reap the blessings of freedom, must, like men, undergo the fatigues of supporting it.”