With West Virginia Senator Joe Manchin standing in the way of a big tax and spending bill in this Congress and Republicans likely to flip at least one chamber in November, Democrats are pushing President Biden to impose his agenda by order. “It’s Executive Beast Mode time now,” Rhode Island Senator Sheldon Whitehouse tweeted on July 14.
Mr. Biden didn’t need the encouragement. His administration has tried to sidestep Congress on almost every corner, from forgiving student loans to a backdoor mandate for electric vehicles. But its regulatory monsters will likely run into a court buzzsaw.
in the West Virginia v Environmental Protection Agency, The Supreme Court scrapped President Obama’s Clean Power Plan last month. The judges directed lower courts to be skeptical of administrative agencies’ claims of “guessing in a long-standing statute” transformative power that Congress has never explicitly delegated. This is bad news for the executive animal.
Start student loan forgiveness. Department of Education Counsel Toby Merrill argues that a provision in the Higher Education Act 1965 allowing the Secretary to “compromise . . . any right, title, claim, lien, or demand” also authorizes the agency to cancel federal student loan debt. Not so fast. That provision only applied to the government’s private lending program, which Democrats abolished in 2010 when they nationalized the student loan market to pay for ObamaCare.
The Federal Claims Collection Act of 1966 establishes limited bases and strict procedures for when an agency may “compromise” debt. The 1966 Act states that the government can forgive debt if a “debtor is unable to pay the full amount in a reasonable time as verified by credit reports or other financial information” or the cost of collecting the debt would not justify the amount to be collected. These restrictions prevent the categorical debt cancellation that the government is considering. Especially while Congress specifically authorized the Department of Education to do so output Student debt, it didn’t do the same for debt relief.
Also in potential legal jeopardy: the government’s underhanded electric vehicle mandate. The Clean Air Act empowers the EPA to regulate “emissions of air pollutants” from new vehicles that “cause or contribute to air pollution which can reasonably be expected to endanger public health or welfare.” The Biden EPA has set extremely stringent emissions standards, giving automakers a choice between making more electric vehicles — which the Feds say are zero-emissions despite running on fossil-fuel power — and buying compliance credits from companies like Tesla.
The EPA’s standards for greenhouse gas vehicles mirror the Clean Power Plan, which sets unworkable carbon limits for power plants, effectively forcing fossil fuel producers to either build solar or wind farms or subsidize their green energy competitors.
Four conservative judges disagreed Massachusetts v EPA (2007), which allowed the agency to regulate greenhouse gases without explicit consent from Congress. A legal challenge to the Biden administration’s backdoor EV mandate could tempt judges to reconsider that earlier decision and put the brakes on overall EPA climate regulation.
Is a dry drainage ditch in your yard a “navigable body of water” and subject to EPA regulation? According to the Biden administration, that could be the case. The Clean Water Act empowers the EPA to protect such waters, and courts have interpreted its power to extend to wetlands adjacent to navigable waters.
Still, EPA bureaucrats have sometimes attempted to stretch their regulatory jurisdiction even further. A proposed rule by the Biden administration would authorize the EPA to regulate any piece of land — whether navigable or water — that “may significantly compromise the chemical, physical, or biological integrity of traditional navigable waters.” This would allow the EPA to play “six degrees of separation” with Lake Michigan. Farmers and home builders could be forced to obtain federal permits just to move dirt on their property.
The Supreme Court will hear a case this fall asking it to clarify the limits of EPA’s powers. Idaho’s Michael and Chantell Sackett spent about 15 years fighting EPA bureaucrats who considered their small property a wetland even though there was no water on it. Judge Antonin Scalia said Congress does not hide elephants in mouse holes. It also doesn’t hide wetlands in waterholes.
Judges may also soon be asked to clean up some of the Obama presidency’s unfinished business: the Deferred Action for Childhood Arrivals program, or DACA. A 2012 Department of Homeland Security memo granted protection to up to 1.7 million illegal immigrants brought to the United States as children. The High Court in 2020 blocked the Trump administration’s repeal of the program on procedural grounds. Justices Neil Gorsuch, Samuel Alito and Clarence Thomas contradicted each other in finding that the program was adopted “without legal approval and without the requisite rulemaking process.”
Whatever the policies of DACA deserve, they contradict West Virginia and is almost certainly unconstitutional. The US Fifth Circuit Court of Appeals heard oral arguments in Texas’ challenge to DACA earlier this month, and a decision is expected this year.
If courts block these and other executive branch beasts, Mr. Biden may find he has no choice but to negotiate with Republicans to achieve some of his goals. Such compromises would certainly strengthen his public support. Who knows? West Virginia and the West Virginia senator could end up saving Mr. Biden’s presidency.
Ms. Finley is a member of the Journal’s editorial board.
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https://www.wsj.com/articles/beast-mode-biden-vs-the-supreme-court-administration-debt-student-loans-congress-power-regulation-west-virginia-epa-11658679750 ‘Beast Mode’ Biden vs. the Supreme Court