WASHINGTON -- It has the makings of a royal mess for "King Barack."
Monday morning's Supreme Court argument about the Environmental Protection Agency's authority to regulate greenhouse gases went badly for the Obama administration -- so much so that the real question before the justices seemed to be how severe the EPA's loss would be.
The administration's solicitor general, Donald Verrilli, pleaded with the justices to recognize the "urgent problem" of climate change, because the "threat to future generations gets worse" with each passing year.
But as the argument played out, the court's swing justice, Anthony Kennedy, made clear that he agreed with the conservatives that the administration had gone too far in its carbon-dioxide regulations. Even some of the liberal justices voiced skepticism about the Justice Department's position.
"I know litigants hate this question," Justice Sonia Sotomayor told Verrilli. She asked which of two rationales he would prefer "if you were going to lose."
"I knew you were going to ask me that question," the solicitor general replied.
The eventual ruling may not be too awful for CO2 regulation in a practical sense. The justices didn't seem inclined to overturn a 2007 decision, Massachusetts v. EPA, granting the agency the authority to regulate greenhouse gases. Both sides agreed that they were really arguing over whether 83 percent or 86 percent of emissions could be regulated.
Yet the politics are more significant. If the court declares some of the agency's actions unconstitutional, it would inevitably renew the howls from the right about imperial presidency, dictatorship and monarchy. And it would highlight the inherent flaw in President Obama's "pen and phone" strategy of unilateral action by the executive. For all the complaints of abuse of power, this or any other president can go only so far without congressional approval.
Peter Keisler, the industry lawyer arguing against the regulations, said the administration had essentially tried to "design its own climate-change program." Justices Samuel Alito and, particularly, Antonin Scalia seemed to believe that the whole business of regulating carbon dioxide was out of bounds, and perhaps unnecessary. "Where have the sea levels risen other than Massachusetts?" demanded Scalia, an apparent reference to the 2007 case in which he dissented.
But Kennedy and Chief Justice John Roberts weren't in the mood to revisit the 2007 precedent. Roberts observed that Keisler suggested "putting Massachusetts v. EPA to one side. But I was in the dissent in that case, but we still can't do that."
If the conservative bloc wasn't going to succeed in freeing industry from carbon regulation, it was even more clear that at least part of the EPA's regulations were in trouble. "Reading your brief," Kennedy told the administration's lawyer, "I couldn't find a single precedent that strongly supports your position."
Elena Kagan, an Obama appointee, said the EPA's solution "seems to give it complete discretion to do whatever it wants, whenever it wants" -- which she found "problematic."
Either way, it was clear that this court would not be of service to the "king."
Follow Dana Milbank on Twitter, @Milbank.
(c) 2014, Washington Post Writers Group
ok...tralw...why is Pacific sea level 20cm higher than Atlantic? More of the CO2 polution garbage?
"Where have the sea levels risen other than Massachusetts?" demanded Scalia
I hope that's just Scalia asking an insane question in order to squelch discussion (a standard Right Wing ploy) because if we have to explain that the sea off of Massachusetts is effectively the same sea all over the world, and the oceans have been named for geographic reference, then he needs put someplace safe where he can't cause harm to himself or others.
Poor Antonin, I guess the stress of serving his true masters while trying to put on the facade of serving the Law and the Constitution has finally caught up with him.