Summary of the Major Constitutional Limits on Climate Change Policy

The Constitution of the United States of America sets clear limits on the powers of the Federal Government and permits exercise of those powers only in specifically enumerated activities that relate to providing for the ³common defence², promoting the ³general Welfare², and securing ³the Blessings of Liberty² to all Americans and future Americans. The first ten Amendments to the Constitution, and the 14th Amendment, further limit the powers of Federal and State Governments relative to the rights of the people, leave to the people those natural rights not specifically protected, and reserve all un-enumerated powers to the States. Other Amendments expand the powers of the Federal Government but, again, only within specified limits.

Article V defines the process by which constitutional powers can be changed and the rights and liberties of the people possibly further limited. The Constitution defines no process that allows any of the three branches of the Federal Government to change their powers or the rights of the people without a constitutional amendment. Unfortunately, over many decades, the amendment process of Article V has not been followed in the determination of many extra-constitutional national legislation, executive actions, and Court decisions. Rather, there have been assumptions of non-enumerated powers by all three branches of Government.

In analyzing the Constitution, it is critical to recognize the clear requirement in the Preamble and Article I to ³provide for the common Defence and the general Welfare². Meeting this requirement demands ready access to abundant energy in order to have a strong economy that can support national security and other constitutional functions of Federal, State, and local government. Unconstitutionally limiting energy production and taxing carbon emissions to ³do something about climate change² would clearly adversely affect the economy and thereby limit the Nation¹s ability to counter potential adversaries or direct attacks and provide for the general welfare.
Actions related to modification of ³climate change² clearly are not included within the directly enumerated powers of Congress given in Article I, of the President in Article II, or of the Judiciary in Article III.

Therefore, the question arises as to whether such actions can be constitutionally justified or invalidated under various enumerated powers or within the Amendments that protect political and natural rights. In answering this question, the constitutional powers of the three branches of Government must be considered relative to permissible law, regulation, executive order, or judicial decision. Similarly, the relevant rights guaranteed by the 5th, 9th, 10th and 14th Amendments also must be reviewed. Legislative Power: Clauses 2 through 17 of Article I, Section 8, lay out the specific limits on Congress¹s power to undertake the duties stated in Clause 1 of that Article. Nothing in those sixteen Clauses, directly or indirectly, gives the Congress the power to attempt to regulate climate, assuming that Nature would permit such regulation to be effective. Where commerce between the States in energy, transportation or industry needs to be regulated to prevent economic discrimination between those States, Congress has the power to do so under Clause 3, the ³Commerce Clause². To extend such regulation in an attempt to affect climate, however, would have no constitutional basis.

Some would argue that Clause 18 permits Congress to legislate in any way it deems ³necessary and proper²; however, this phrase, in specific words, applies only to the ³Execution of the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.² Clearly, no extra-constitutional powers,such as attempts to regulate climate, can be assumed by the Congress by way of Clause 18.

Executive Power: Article II gives significant executive power to the President, but in no way gives that Office legislative authority beyond that wielded by the Congress in which the President participates by signature or veto. In fact, the President¹s Oath of Office specifically requires that the President ³preserve, protect and defend the ConstitutionŠ² and thus requires a veto of any legislation that is unconstitutional on its face. Further, any Executive Order by the President must be limited to the management of the Office of the President or to the implementation of the responsibilities of Executive Branch Departments and Agencies as defined by the Constitution or by Acts of Congress. Executive Orders are explicitly unconstitutional if they have no tie to constitutional Acts of Congress or violate the rights of individual Americans or the States as defined by Amendments to the Constitution. No Executive Order that attempts to mandate actions relative to climate, therefore, would be constitutional.

Executive Order 13524, for example, issued October 5, 2009, by President Obama, requires that Federal agencies set ³sustainability goals² for their use of energy. This order would be constitutional if its stated purpose were to reduce the cost of the Executive Branch operations through cost-effective energy related operations; however, the stated primary purpose of the Order is ³to establish an integrated strategy towards sustainability in the Federal Government and to make reduction of greenhouse gas emissions (GHG) a
priority for Federal agencies.² This is a purpose for which the President
has no constitutional authority to implement. In addition, it is well
documented that a reduction in carbon emissions by means other than
employing under-utilized technology of enhancing fossil fuel combustion and
conversion efficiency will not net cost savings and will lead to greater
costs of government. The Order also states that Order 13524 is ³intended as
a means to create a clean energy economy² and to ³foster markets for
sustainable technologies and environmentally favorable materials, products,
and services². This is an industrial policy purpose for picking economic
winners and losers for which there is no constitutional basis.

Regulatory Agencies: The Environmental Protection Agency (EPA) has no
direct constitutional foundation for existing because ³environmental
regulation² is not an enumerated power of Congress or the President. The
10th Amendment leaves all un-enumerated powers to the States without
equivocation. A State, therefore, with the implicit consent of the
electorate in that State and with solid scientific justification, can
regulate activities that affect the environment within the borders of that
State. If activities in one State adversely affect the environment in
another State, and the issue cannot be resolved between the two parties,
then Article III, Section 2, provides for recourse to Federal Courts,
stating that ³The judicial Power shall extendŠto Controversies between two
or more States;Š²

There exists a strong argument that under the Commerce Clause of Article 1,
Section 8, Congress can provide for regulation of interstate commercial
activities for which there is strong scientific evidence of potential harm
to the health and safety of Americans arising from those activities. Some of
the few examples of such harm come from excessive release of Mercury, Lead,
Arsenic, radiation and some artificial chemicals into the environment. The
critical scientific issue in these and all cases of potential harm lies in
the dose received by individuals. The key to any environmental regulation is
³strong scientific evidence of potential harm to health and safety² and the
balancing of the benefit of the regulation against its full economic cost
and its infringement on the constitutional rights of the people. These
constitutional rights, of course, include the inherent natural rights
protected by the 9th Amendment [1]. With respect to the EPA¹s moves to
regulate the use of fossil fuels in the name of fighting global warming, as
discussed in previous Chapters, there is no strong scientific basis that
such regulation can significantly counter natural warming or cooling cycles.

Similarly, the Department of Energy (DOE) has no constitutional basis for
attempting to affect commercial decisions through its subsidies for solar,
wind, battery and bio-fuel energy production. Again, industrial policy is
not an enumerated function of the Federal Government. As with regulations
promulgated by the EPA, DOE¹s authority to provide such subsidies is
supported by partisan political rationales rather than engineering and
economic reality. Federally funded research and technology development in
these significantly non-economic areas of energy conversion can be justified
by their potential long term tie to national security [2] in relation to
future depletion of currently much more economic and more environmentally
friendly North American fossil and nuclear energy production [3].

Regulatory mandates by the Federal Government, including the Executive
Branch, that artificially raise the price of goods and services indirectly
and unconstitutionally manipulate industrial policy and introduce damaging
non-market forces into private decision making. For example, the President
and the Secretary of Energy have expressed a clear Administration policy to
raise the price of fuel and energy derived from fossil fuels through
increased fuel taxes; mandated additives, such as ethanol; mandated
unscientific emissions controls, such as to reduce emissions of carbon
dioxide and infinitesimal amounts of Mercury; and the imposition of
regulatory requirements for power companies to distribute minimum amounts of
wind and solar generated electrical energy. These policies, of course, mean
that the price goes up on food, trucks and cars, and everything else that
needs energy to be produced.

The President¹s and the Secretary of Energy¹s decision to not uphold the
Federal Governments legal and constitutional responsibility to reprocess or
dispose of spent nuclear fuel rods, a need for which power companies
continue to be taxed, clearly is aimed at eventual closure of all U.S.
nuclear power plants. This decision, along with the closure of many existing
coal-fired power plants by regulatory fiat, poses a grave threat to the
stability of the national electrical power grid and to the future economic
health of the country and the livelihoods of its citizens.

Judicial Power: Decisions by the Supreme Court, outside the resolution of
apparent conflicts within the wording and intent of the Founders, best
illustrate the assumption of non-enumerated powers by Government. The Court
has frequently ³amended² the Constitution to insert the Federal Government
into issues reserved to the people by the 9th Amendment or to the States by
the 10th Amendment. Both the Legislative and Executive Branches, however,
also routinely ignore constitutional limits on their powers. Cases in point
are the expansion of the enumerated limits on the general welfare provision
of Article I (Section 8, Clause 1), particularly with respect to property
rights; over interpretation of the meaning of the ³Commerce Clause² (Article
I, Section 8, Clause 3); and delegation and lack of oversight of the powers
to regulate use of or dispose of public lands (Article IV, Section 3, Clause

2).
Through the last two centuries, the Supreme Court has assumed far greater
power than intended by the Founders. Most seriously, the Court has
substituted its decisions for the constitutional amendment process provided
by Article V and, in so doing, has given the Federal Government powers not
enumerated in the Constitution and therefore left to the States by virtue of
the 10th Amendment. The Court also has expanded legislative, executive and
judicial powers beyond the obviously restrictive intent of Articles I, II
and III, respectively. For example, the Court¹s 2007 decision to allow the
Environmental Protection Agency to regulate production of a natural
atmospheric gas, carbon dioxide, essential to life on Earth, clearly
expanded the EPA¹s powers beyond the intent of Congress or what would be
constitutionally permissible.

In addition, the current deliberations relative to the constitutionality of
a mandate that Americans must purchase health insurance highlight how the
³Commerce Clause² has been amended by Court decisions to mean far more than
the narrow intended purpose ³To regulate CommerceŠamong the several StatesŠ²

Specifically related to the scientifically misguided efforts to affect
climate, the legislative or regulatory mandates for Americans to use
particular products, such as ethanol in gasoline or a specific type of light
bulb, attempt to expand the power of the Commerce Clause in the same way as
the now contested health insurance mandate.

5th Amendment: The 5th Amendment¹s guarantee that ³No person shallŠbe
deprived of life, liberty, of property, without due process of lawŠ² has
been violated by the many mandated or prohibited actions that unnecessarily
and unscientifically regulate the otherwise free exercise of individual
liberty and the use of private property. Examples abound and grow day by
day: the legislated phase-out of incandescent light bulbs in favor of less
desirable and dangerous fluorescent bulbs; regulated property-use
restrictions based on unscientific definitions of wetlands; and regulated
mileage standards that restrict access to desired personal transportation.
9th Amendment: The 9th Amendment protects the natural rights of the people
that are not otherwise enumerated in the Constitution and its Amendments.

These natural rights include ³life, liberty, and the pursuit of happiness²,
as mentioned specifically in the Declaration of Independence, and other
rights derived from our natural, and societal instincts as free human
beings. Other natural rights include free association, education, travel,
work, communication, thought, privacy, property, shelter, and defense of
self and family. In addition to their basic unconstitutionality as discussed
above, attempts to control the behavior of Americans in a fruitless effort
to control climate change violate most of their natural rights.

Overall, pernicious and unjustified regulation restricts ³liberty². Direct
and indirect costs transferred to individuals by the regulation of carbon
dioxide as a pollutant stand in the way of ³the pursuit of happiness², in
other words the exercise of economic liberty. Federal grant processes and
educational publications biased in favor of research on human-caused global
warming corrupt both ³education² and the science necessary to support
legitimate national needs. Otherwise affordable ³travel² is limited by
unscientific and costly requirements on vehicle fuels and performance.
³Work² options are lost as unjustified regulatory burdens force closure of
power plants and agricultural and other businesses. Political browbeating of
those skeptical of the human-caused global warming hypothesis clearly
attempts to restrict ³thought² as well as free scientific and political
speech. Taxes, fees and regulatory costs in support of unproven climate
science destroy ³property² in the form of individual wealth. As a final
example of 9th Amendment violations related to misguided climate policy,
so-called green building requirements make individually owned ³shelter²
unaffordable for many Americans.

10th Amendment: The 10th Amendment leaves to the States, and thus to the
people, those powers not enumerated as available to the Federal Government.
This particularly applies to the powers of Congress addressed specifically
in Article I. For example, nowhere in Article I is Congress given power to
regulate climate and environment, energy, health, retirement, housing,
welfare, transportation or many more of the areas in which the Federal
Government has assumed authority. Regulation of any aspect of these areas,
but still under the restrictions imposed by the Bill of Rights and the 14th
Amendment, can come only indirectly through Section 8 Clauses related to
commerce and defense and through the powers given Congress in Article IV
related to guarantees made to the States and the management of United States
territory.

14th Amendment: Whatever constitutional justification may support it, any
legislation passed by Congress and signed into law by the President that
provides federal monetary, tax credits or penalties, or mandated use
subsidies for some individuals and entities and not others in a particular
competitive area of commercial activity violates the 14th Amendment¹s
guarantee of ³Šequal protection of the laws.² Of particular note are
subsidies given to energy sources that are not economically competitive with
fossil fuels and nuclear power made in the name of altering trends in
climate change, such as subsidies for bio-fuels, wind and solar electric
power, and battery and hydrogen powered transportation. A constitutional
case for such subsidies could be made from a national security perspective
only if the country did not have the capacity to produce sufficient fossil
fuel and nuclear energy to satisfy defense and economic requirements.

All in all, the overt and covert climate and energy initiatives of the
Federal Government pose a clear and present danger to the economic future
and national security of the United States. These initiatives stand in clear
violation of the intent of the Founders and the constraints on the
Imposition of tyranny that they provided in the Constitution.
Harrison H. Schmitt is a former United States Senator from New Mexico as
well as a geologist and Apollo 17 Astronaut. He currently is an aerospace
and private enterprise consultant and a member of the new Committee of
Correspondence.

Originally published on March 16, 2012, at
http:/americasuncommonsense.com/blog/downloads/
<http://americasuncommonsense.com/blog/downloads/> as Chapter 10, ³Climate
Change: Summary of Major Constitutional Limits on Policy² in Climate and the
Constitution.

References cited in text
1. See: America¹s Uncommon Sense Essay: No. 36, Natural Rights
and the 9th Amendment, available to read or download from the downloads page
at http://americasuncommonsense.com/blog/downloads/.
2. See: America¹s Uncommon Sense Essay: No. 35, Science Policy
and the Constitution, available to read or download from the downloads page
at http://americasuncommonsense.com/blog/downloads/.
3. See: America¹s Uncommon Sense Essay: No. 44, Energy and the
Constitution #1, available to read or download from the downloads page at
http://americasuncommonsense.com/blog/downloads/.