The executive branch of our federal government announced yesterday that it would no longer defend legal challenges to its enforcement of a statute duly enacted by the political branches (I say political branches because the president possesses some legislative authority as well, by virtue of the veto). Here’s what happened: a Democratic Congress passed a bill amending the Clean Air Act, classifying carbon dioxide as a pollutant and setting a timetable for reduction of it as a means of combatting global warming, and this was duly signed into law by a previous Democratic president. Oil companies, supported by conservative think tanks’ amicus briefs, challenged the law in court, claiming that it was unconstitutional (not within the scope of the Commerce power), and a federal district judge in Louisiana known to be angling for an appointment to the appellate bench agreed. To the delight of global warming skeptics everywhere, President Palin announced that her administration was now agreeing that the statute was unconstitutional, and that it would abdicate its responsibility to defend the law in court by even appealing the Louisiana judge’s historic ruling. At almost the same time, contrary rulings emerged from district judges in California and Vermont, and legal experts declared that the state of global warming reduction law would be in a state of confusion for years as a result. A handful of moderate conservatives criticized the decision as “a new form of executive activism circumventing democracy”, but were quickly silenced by cable television and talk radio pundits as “tree-hugging socialists.”

Oh, wait. That’s not what happened yesterday. That’s what happens five years from now.


3 comments on “Separation

  1. Pliny the Elder says:

    Fundamentally, it is about proper governance. One of the many reasons that I consider Gov. Schwarzenegger to have been a poor governor is his contempt for process. He vetoes the legislature’s gay marriage bill After the California Supreme Court’s gay marriage decision and the resultant state constitutional amendment banning same sex marriage, he refuses to defend the state constitution in court. In other words, he chose to pursue the same result (legalizing SSM in CA) through the most contentious means possible. We have a country where the political branches dodge policy decisions while the courts embrace them. Exactly the wrong way to live, even though legally permissible.

  2. Aaron Baker says:

    I suppose I might as well de-lurk because now you know my terrible secret.

    I read the DoJ’s press release on this and they made the following statement:

    “We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation. I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation. “

    I’m not fully clear on how suits with the Federal Government as a party work, but I had thought that the implication of this was basically that these laws can still be defended by “the government” as long as some Congresspeople are willing to argue them in court, but they just won’t be defended using DoJ resources.

  3. poseidonian says:

    Here is a cogent view from the other side of the governance issue.

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