Opinion | Declaring a Climate Emergency Is a Step Toward Constitutional Breakdown

Patrick Semansky/AP Photo

Joe Biden’s climate agenda is stalled in Congress, and no matter how much Democrats wish it were so, there’s no executive solution for that.

In a memorably ridiculous formulation, Rhode Island’s Democratic Sen. Sheldon Whitehouse has said that “with legislative options now closed, the President must act. It’s time for executive Beast Mode.”

Although it might be amusing and interesting to see Joe Biden — who had nothing on his public schedule for two days after returning from the Middle East — attempt to achieve Beast Mode, he hasn’t yet made the declaration of a climate emergency that Whitehouse and other Democrats pine for.

That still might be coming. In the meantime, Biden announced on Wednesday a number of executive actions on grounds that since Congress won’t act, he must.

Or as Biden put it at his Massachusetts event, in slightly garbled fashion, “Climate change is literally an existential threat to our nation and to the world. So my message today is this: Since Congress is not acting as it should … this is an emergency. An emergency. And I will look at it that way.”

This is, at best, a deeply aconstitutional sentiment, and taken to its logical conclusion, represents a threat to our system of government.

Executive aggrandizement at the expense of the legislative branch has been growing for some time, and at the hands of Democrats and Republicans in the White House. President Barack Obama took it to another level after he was stymied on Capitol Hill, famously saying of immigration reform, “if Congress doesn’t act, I will.” He proceeded to re-write immigration law on his own, an effort eventually thrown out by the Supreme Court. For his part, Donald Trump declared an emergency at the border to divert funding for the purpose of building the wall, a move that was, at best, dubiously legal and certainly a trespass against congressional prerogatives.

Our constitutional order deserves the loyalty of everyone who serves under it. So, even if it is inconvenient for presidents to recognize that the exclusive grant of legislative powers to Congress is an absolutely essential part of the Founders’ design, they should be ever mindful of it. If that is too much to ask, at least Congress should be protective of its own role.

Instead, in a development that would have shocked and confounded James Madison, members of the legislative branch routinely lobby for presidents to usurp their powers and implement measures that Congress as a body has defeated or declined to act on.

It was all too typical, then, that Democratic senators wrote a letter to Biden his week, urging him, in effect, to go ahead and take up the baton dropped by Congress.

“For too long, we have been waiting for a single piece of legislation, and a single Senate vote, to take bold action on our climate crisis,” Sen. Jeff Merkley of Oregon and others wrote. “Congressional action to address the climate crisis appears to have stalled. As a result, we urge you to put us on an emergency footing and aggressively use your executive powers to address the climate crisis.”

Embedded in this advocacy is the premise that when Congress declines to do something it is a failure of the system. It isn’t. A bicameral legislature representing all parts of the country and doing so in different ways (two-year terms for members of the House from districts with roughly equal numbers of people, six-year terms for senators elected state-wide) demands a broad national consensus for big, consequential changes.

If Congress declines to pass some sweeping initiative, it should be cause for members of Congress on the losing side to keep up their advocacy and seek to persuade more members to agree with them or elect different members of Congress. It shouldn’t become warrant to short-circuit the process and get the president to issue edicts in lieu of legislation.

The Supreme Court has recently handed down important decisions policing the constitutional boundaries here and reserving the legislative power for the legislature. Last summer, it struck down Biden’s eviction moratorium as not explicitly authorized by Congress, and this session it blocked an EPA regulatory scheme on the same grounds.

Rather than rejoicing that the court is reining in an overweening executive, Democratic members of Congress have been outraged. The progressive Rep. Rashida Tlaib deemed the court “fascist,” explaining that the “federal government will be restricted from regulating anything of significance in the absence of a clear congressional directive to do so.”

It’s hard to imagine that a member of Congress has ever before considered requiring its assent for major changes in domestic policy creeping totalitarianism, but there’s a first time for everything.

Regardless, the balance between the presidency and Congress will never return to a more reasonable equilibrium until lawmakers of both parties stop cheering on acts of unilateral governance by the White House simply because they like the result.

On the merits, an emergency declaration doesn’t make any sense, either. Presidential emergency powers are best reserved for terror attacks or pandemics, rather than the temperature going over 90 degrees in Boston for about a week.

There is no “existential threat” to the United States from climate change. The idea that an advanced 21st century society that — unlike Western Europe — is prodigiously air-conditioned can’t deal with additional heat during the summer, or for that matter, more adverse weather events, is laughable. As Roger Pielke notes, heat deaths have been declining in the United States, despite greater population and more frequent heat waves, and the WHO says no one need die of heat if appropriate measures are taken.

The U.S. is a wealthy, innovative and continental nation where patterns of settlement have vastly changed over time and will continue to do so, regardless of the temperature trends. We will be able to adapt and mitigate any harmful effects from climate change better than any other society in the world.

Even if you accept the basic premises of the climate advocates (and I don’t), the climate is not an emergency, or an urgent threat demanding and susceptible to action right away. The warming of the planet is a long-fuse phenomenon that has built up steadily over time and won’t soon be affected even by radical steps. If enacted in full, the Green New Deal would have a negligible effect on the global temperature.

The approach of members of Congress and advocates who have a different, more dire view should be to keep their shoulders to the wheel, and work to write their priorities into law, rather than seek to pervert our constitutional system because legislating is hard.