On Friday, President Trump formally endorsed a plan to keep struggling coal power plants open — by forcing energy-grid operators to purchase power from them at uncompetitive rates — for the sake of “national security.”
This proposal is bonkers for a variety of reasons. The notion that it is in America’s national-security interest to prop up the coal industry is patently absurd. Our nation’s power grid has plenty of alternative sources of reliable energy — and keeping coal plants in business exacerbates climate change, which is itself a major national-security threat (if you believe those tree huggers at the Pentagon, anyway). Further, the costs of subsidizing inefficient, dirty energy will fall partially on consumers in the form of higher electricity bills. Which is to say: The administration has found a way to combine the (supposed) short-term economic costs of environmental protection with the long-term ecological risks of laissez-faire.
But the craziest aspect of the Energy Department’s proposal isn’t that it puts the profits of coal magnates above the survival of the planet. That much, we have learned to expect. The wild thing about Trump’s plan is that it rests on an interpretation of executive authority that is incredibly dangerous to the conservative movement.
Generally speaking, the president is not supposed to be able to unilaterally direct subsidies at his favorite industries; that’s Congress’s job. But Trump’s attempt to pay back his coal-magnate donors would never survive on Capitol Hill — it is that rare energy policy that is opposed by wind power, solar energy, and oil companies, alike.
Thus, the administration has decided to simply deliver the handouts itself — by invoking the Defense Production Act, a Cold War–era law that empowers the president to “effectively nationalize private industry to ensure the U.S. has resources that could be needed amid a war or after a disaster.”
As Bloomberg notes, this authority was most famously exercised by Harry Truman, who used it to cap wages and impose price controls on the steel industry during the Korean War.
If our current president can wield this power to prop up coal plants, it’s hard to see why a future one couldn’t use it to shut them down: Surely, allowing climate change to proceed at its current pace poses a dire threat to America’s national resources. How well could the U.S. respond to a foreign invasion once its major coastal cities are swallowed by the sea?
Senate Republicans have refused to abolish the legislative filibuster out of an (accurate) belief that it is in the conservative movement’s long-term interests to maintain barriers to major legislation. Budget reconciliation rules make it possible for Senate majorities to (temporarily) cut taxes with 51 votes, while 60 is still required to enact new regulations or permanent expansions of the welfare state. What’s more, the upper chambers’ political geography makes it all but impossible for Democrats to assemble 60 progressive Senate votes.
But Democrats are extremely competitive at the presidential level, having won the popular vote in six of the last seven elections. And with his expansive interpretations of executive authority, Trump is setting precedents that could allow the next progressive president to accomplish a tremendous amount without clearing any of Congress’s veto points.
To be sure, the construction of the imperial presidency has been a bipartisan enterprise, and Barack Obama contributed his own innovations. And yet, Trump has set about expanding the powers of his office with a shameless audacity that his predecessor couldn’t match — but that his successor just might.
For example, Barack Obama was troubled by the excesses of America’s criminal-justice system, and the fact that it imposes heavy sentences on so many nonviolent drug offenders. But his capacity to ameliorate this reality through the exercise of his pardon power was constrained by the Justice Department’s established procedures (in addition, of course, to political concerns): The federal government has an Office of the Pardon Attorney, which is tasked with assessing the merit of each individual pardon application by carefully consulting a long list of official criteria for clemency.
But none of this is legally binding. The president’s power to pardon people for federal offenses is absolute. He can technically issue a pardon as rapidly as one might post a tweet; and in fact, Trump has done just that. The president’s pardons of Dinesh D’Souza, Joe Arpaio, Kristian Saucier, Scooter Libby, and Jack Johnson were all reportedly doled out unilaterally, without the Justice Department’s guidance or approval.
When Barack Obama was president, this approach to issuing pardons was unprecedented. When the next progressive takes office, it will not be. And if that president is sufficiently committed to the cause of combating mass incarceration, she will be able to cite Trump’s example as she rapidly empties the federal prisons of (at least) nonviolent drug offenders.
Similarly, one could imagine the Warren-Sanders administration finding a progressive use for the expansive trade powers that Trump has claimed. Creatively abusing another Cold War–era law, Trump has assumed the right to unilaterally impose tariffs on any nation he chooses — so long as he offers a specious national-security justification for doing so. After the next Democratic president uses the Defense Production Act to rapidly reduce America’s carbon emissions, it could threaten massive tariffs on any (developed) foreign nation that refuses to aggressively pursue its own emission-reductions targets — thereby turning America’s coveted consumer market into force for climate justice.
But a Democratic president could make less extravagant (and politically risky) progress by applying the spirit of Trump’s audacious power grabs to legal areas he hasn’t explored. For example, there’s strong case that — under existing law — the Executive branch already has the authority to override pharmaceutical patents, so as to provide low-cost drugs to the beneficiaries of government programs. As a team of medical and legal scholars from Yale and Harvard University explained in a 2016 op-ed for the Washington Post:
The government can use its power of eminent domain, allowing it to acquire the land for a reasonable price … The government should employ an analogous power — government patent use — to negotiate lower prices, or buy low-cost, generic versions of drugs for use in government programs. This is possible because existing law gives the federal government limited immunity to challenges from patent holders: Patent holders cannot stop the government from making or buying products that infringe on their patents, and can sue only for reasonable compensation.
Federal agencies have previously relied on this mechanism to purchase items produced by companies other than the patent holders, ranging from lead-free bullets to electronic passport readers.
This is just one small example of how a sufficiently bold left-wing president could go about exploiting existing law to unilaterally enact progressive change. Turning America’s post offices into public banks is another.
It is exceedingly difficult to pass laws in the United States; but for that very reason, it is also hard to repeal them. One consequence of that latter fact: When White House lawyers want to find imprecisely worded grants of authority to the Executive branch, they have no shortage of places to look.
To be sure, a president’s capacity to exercise such unilateral powers is contingent on judicial approval, and Mitch McConnell is doing everything in his power to ensure that an imperial, progressive president will have a hard time winning the judiciary’s rubber stamp. And of course, the presidency’s ever-expanding authorities — and Congress’s ever-diminishing willingness to check the power of its own party’s president — are alarming developments for American democracy.
But so are steadily rising global temperatures and sea levels.
So, if conservatives recoil at the thought of a future Democratic president claiming extraordinary powers to combat climate change, they should implore the current Republican one to stop inventing new, extraordinary justifications for exacerbating it.
