Can the President really use the EPA to enact Cap and Trade?

Posted on April 30, 2011


The Myth

The president can use executive departments such as the EPA or Health and Human Services to issue rules and regulations that have the full force of laws.

 The Truth

According to the Constitution the legislative branch of the US government is the only branch authorized to write and pass laws.

The legislative does not have the constitutional authority to delegate their legislative powers to any other branch.

 Rules and regulations issued by the executive departments are not legally binding. 

The Facts 

The framers of the Constitution created formal process that must be followed before legislation becomes law.  A law is legally binding only if the law is passed according to this process and the law does not violate the constitution.  All legislation must be passed by both houses of congress and signed by the president for it to comply with this formal legislative process. 

The Constitution authorizes the creation of executive departments and provides a process for their creation. The president informs congress that he is in need of an executive department. Congress then passes legislation that creates the department. These departments only exist to advise the president and help the president carry out laws passed by congress 

These executive departments offer advice to the president who then assembles this advice into legislative proposals. The constitution gives the president the power to propose legislation to congress but congress must still pass it. 

After the law is passed and the president signs the law it then becomes the responsibility of the president, with the help of the executive departments, to see that the law is implemented.  To aid in the implementation of the law the heads of the executive departments can issue rules and regulations to the members of their department. These rules and regulations are only binding for the members of the executive departments.  They have not been submitted to congress and passed through the formal legislative process so they are not binding outside of the executive branch. 

Since the Wilson administration the executive branch departments have been issuing rules and regulations that the federal government has been treating as if they are formal laws. This practice was expanded by FDR and has been continually expanded by subsequent administrations. President Obama has taken this practice to a level that it is very much a threat to our nations prosperity and our individual liberty. 

Recently the legislative branch has been passing legislation which transfers some of their legislative powers to the executive departments authorizing them to write regulations. The Constitution does not grant congress the power transfer or delegate this fundamental and exclusive power to any other branch.

The Proof 

Article 1 Section 1 of the Constitution states:

“All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. “

Article 1 Section 7 defines the formal legislative process.

Article 2 Section 2 Clause 1 and 2 define executive departments.

Article 7 Clause 2 lists which items are considered the Supreme Law of the Land.

Article 1 Section 1 does not mention anything about delegating their legislative power.

Article 1 Section 8 does not grant congress the power to delegate their legislative power.

Delegating or transferring legislative power to any other branch is a violation of the separation of powers doctrine which is a fundamental constitutional doctrine

Posted in: Uncategorized