The Rule of Law's Abusers and Enablers

Is it smart to launch a major government program by claiming that it is authorized through an ambiguity in the law? And do those who allow ambiguities in the law have a leg to stand on when they complain about their use?

Translation: The Obama administration is using conflicting provisions of the same law, an ambiguity, as the loophole through which to drive regulations for its Clean Power Plan. Republicans oppose those regulations, but have ignored the ambiguous mess that is existing federal law and have done nothing to clean it up.

Supporters and opponents both argue that the proposed regulations will have a major impact. This plan will prevent thousands of premature deaths, will provide a safe and healthy future for our kids, will create jobs, and will shrink electric bills by 8 per cent.

Or, this plan will raise energy costs by $680 per household, will threaten the reliability of our electric supply, will drive out energy intensive industries, will kill tens of thousands of jobs, and, will have a negligible impact on the climate. “All pain, no gain,” so wrote Edwin Hill, president of the International Brotherhood of Electrical Workers. (IBEW)

This is a big deal and responsible people differ about what it will or won’t do. Just the thing for a representative democracy to take on, shake vigorously to see what falls out, and come to a conclusion, or not, about what to do.

That is not happening. Instead, the Obama administration argues that there are two conflicting provisions in the 1990 Clean Air Act and one of those two provisions gives the Environmental Protection Agency the authority to move forward with regulations implementing the Clean Power Plan. (EPA Legal Memorandum)

It all has to do with the 1970 Clean Air Act Amendments and the 1977 Clean Air Act Amendments, and the 1990 Clean Air Act Amendments and Section 111 and Section 112 and what the House did different from what the Senate did and how what they both did got in the same law and then what the Law Revision Council did and what is in the Statutes at Large and what is in the U.S. Code and whether or not one is a mistake or isn’t a mistake and what controls and what doesn’t control and then what Professor Laurence Tribe thinks, the law professor who taught President Obama, and how Professor Tribe says there are not two conflicting provisions but only one and how the other provision was just a conforming amendment to fix the Senate language to recognize the changes made by the House language and so the Law Revision Council was right and the EPA lawyers are wrong. (Professor Tribe’s analysis)

Whew! Does your head hurt? It should. Another translation: Federal law on any particular topic is built statute by statute, often many years apart. A congressional bill amends a previously enacted bill (a statute), which may have been amended by other enacted bills. The language of these statutes becomes a tortured maze. The remedy is the U.S. Code, the subject matter organization of all these past statutes. Most people in the law business (judges, lawyers, government officials) use the U.S. Code because it is easier to read. But the U.S. Code is an editorial compilation prepared by the Law Revision Counsel’s office. It is not what Congress voted on and passed. So all those statutes are still hanging around as the real law and the Code can be challenged as an imperfect imitation. That’s what the loophole hunters at EPA are doing.

There is an answer. Enact all of the Code as law (a process called positive law codification), repeal all the individual statutes, and use the Code as the one and only. New bills would amend the Code directly. The law would be easier to read, easier to understand, easier to amend. Positive law codification has been sputtering along for 67 years or so. Completing that job will take a major push, more money, more people, more national attention. Republicans in Congress could take this on as a major and long-lasting initiative. Yes, it is tedious. Yes, it flies in the face of entrenched interests. Yes, it is a decade-long project. But, until the law is fixed, Republicans are doing nothing more than yelling as they stand by the open door through which the Obama administration (and others in the future) march.

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