How the Supreme Court Is Most Likely to Kill the Clean Power Plan

Ian Millhiser has a good deep dive into the case that could be used to stop the Clean Power Plan. As we discussed in comments earlier in the week, I think this is the most likely route should Roberts decide to carry water for the climate change deniers that dominate his party:

Ironically, the biggest sign that the Court is poised to shift power away from the executive and toward the judiciary, however, is a case that was widely viewed as a triumphant victory for the Obama administration. The Supreme Court rejected an effort to destroy much of the Affordable Care Act in King v. Burwell. King, however, also indicated that Chevron may not apply at all to matters of “deep ‘economic and political significance.’” Thus, it’s far from clear that the Court will defer to the EPA when it launches a major effort to combat what may be the greatest looming crisis facing humanity.

The attack on the Clean Power Plan, in other words, could do far more than simply undermine this one set of regulations if it prevails in the Supreme Court. It could potentially place strict limits on federal agencies. In an era when gerrymandering and other redistricting factors make it exceedingly difficult for Democrats to capture a majority in the House of Representatives, such limits on agency action could render Democratic presidents virtually powerless. They would have little chance of gaining the congressional majority they need to govern, even if a majority of the nation supports their agenda, and would be hobbled by new limits on their power to enforce existing laws.

With all due respect to eventhehighly-compensatecoalcompanylawyer Larry Tribe, the constitutional arguments being made against the CPP are so embarrassingly stupid even the Roberts Court probably won’t go there. A statutory ruling that also ties the hands of federal agencies going forward, though, is exactly the kind of fake minimalism Roberts loves. As long as Republicans control the House, alas, the practical effect of a statutory and constitutional holding is identical. (I can’t wait for Scalia’s “but if the effects of this would be bad, surely Congress would act” routine at oral argument.)