April Fools’ Festival Day XI: Laurence Tribe in the Center Ring

I confess I am gobsmacked: I really thought this would be a trawl through my archives. But no! Things going on today beat anything I can ressurect:

David Roberts: Constitutional scholar Laurence Tribe sells his soul to Big Coal, makes terrible arguments: “ don’t know how much Peabody Coal is paying Harvard Law professor Laurence Tribe to serve as its mouthpiece, but it can’t possibly be enough….

[We] find him advocating, on behalf of a rapacious corporation that recently screwed workers out of pensions and healthcare benefits, against long-overdue EPA regulations on carbon emissions… with arguments that are transparently terrible…. [His] comments to EPA on the carbon rule that sound like an angry blogger’s rant. Now he’s just testified to Congress on Peabody’s behalf, making many of the same faulty arguments, going so far as to accuse Obama of ‘burning the Constitution.’…
Let’s start with Tribe’s first and most serious accusation: “EPA’s Proposal Violates Principles Of Federalism By Commandeering State Governments In Violation Of The Tenth Amendment.”
The 10th Amendment says that the federal government may not ‘commandeer’ the regulatory powers of state governments…. By… threatening to impose a federal plan if states don’t develop their own, the feds are effectively forcing states to regulate, thus commandeering — or so Tribe says. Is there anything to this argument? Ha ha, no. Congress could easily have given EPA authority to directly regulate all air pollutants (as it does with hazardous air pollutants). Instead, at the urging of conservatives, it gave states flexibility… a chance to make their own state implementation plans (SIPs) before the feds stepped in with a federal implementation plan (FIP). But EPA can not and does not force states to make plans; it just gives them the chance. So there’s no commandeering…. Here’s a respected constitutional scholar arguing that, insofar as the feds merely give states the opportunity to develop a plan, but offer a federal plan for states that don’t want to, ‘nothing about what the court did poses constitutional difficulty.’ Here he is a bit later at the same event arguing, clear as day, that ‘the existence of a backup federal plan takes it outside the commandeering world.’ That constitutional scholar is one Laurence Tribe, circa 2012, before Peabody’s checks started landing in his bank account.
So what explains Tribe’s flip-flop?… He’s arguing that because the states don’t know what’s in the FIP — it might be economy-killing socialism! — they are in effect coerced to make their own plans…. One time before, under George W. Bush, for the Clean Air Interstate Rule, EPA issued a FIP in advance, but that’s a favor to the states, not something required by statute. The basic FIP/SIP model has been used in the National Ambient Air Quality Standard (NAAQS) program for 45 years; never before has someone made this novel ‘we don’t know what’s in the FIP so this is commandeering’ argument. Also, ‘Russian roulette,’ really? EPA might shoot states in the head? Yeesh. Anyway, EPA is planning on issuing a model FIP for carbon standards this summer, in advance of states developing (or not) SIPs, so states will know in advance what’s in it. The whole argument is just vaporware.
(By the way, the argument I’m making here was also made directly to Congress by NYU law professor Richard Revesz, whose testimony you can read here.)

Originally published at www.bradford-delong.com.