(Image source: Institute for Justice)
The last blog ended with the impact of recent Supreme Court decisions:
These cases questioned whether judges should defer to agencies’ interpretation of gaps and ambiguities in the laws they implement under the Chevron doctrine. The decision to overturn the doctrine will have significant implications for federal regulators.
The fear is that environmental regulations will be the first casualties of this ruling. The justification for such a ruling, long sought by conservatives, was that it will force legislators (and presidents) to create laws without “gaps and ambiguities.” To make such laws, however, you need expertise that most of us—judges and legislators included—don’t have: knowledge about what will be relevant given predicted future environmental conditions.
The main job of the Supreme Court is to try to make sure our laws are consistent with the Constitution. A common attitude is that environmental laws are not a constitutional matter and if we want an institution such as the Supreme Court to confirm them, we need to change the Constitution:
In the United States, we acknowledge and protect free speech, property, and gun rights. We don’t formally recognize a right to drink clean water, to breathe clean air, and to have the healthy environments essential to supporting and sustaining healthy lives. Instead, these fundamental human rights are entrusted to a political system with competing demands — where money and special interests have primacy over justice and basic human needs and where partisan gamesmanship is often more important than facts, science, and human life. As written, our environmental laws accept pollution and degradation as a foregone conclusion — a right of industry, something to be managed through reviews and permitting rather than prevented through good government action.
Under this system, communities are suffering from pollution and environmental degradation. We are facing a growing climate crisis that is causing floods, drought, wildfires, and an uncertain future. That’s why we must add a Green Amendment to the US Constitution.
I will try to show here that we don’t need to do this almost impossible task of changing the Constitution!
A long-standing Conservative attitude is that the only federal constitutional demand that we have is defense. Below is part of the report that was written by Jim Talent for the Heritage Foundation:
Providing for the Common Defense
In brief, the Constitution says three things about the responsibility of the federal government for the national defense.
National defense is the priority job of the national government. Article One, Section Eight of the Constitution lists 17 separate powers that are granted to the Congress. Six of those powers deal exclusively with the national defense—far more than any other specific area of governance—and grant the full range of authorities necessary for establishing the defense of the nation as it was then understood. Congress is given specific authority to declare war, raise and support armies, provide for a navy, establish the rules for the operation of American military forces, organize and arm the militias of the states, and specify the conditions for converting the militias into national service.
… The only substantive function of government specifically assigned to the President relates to national security and foreign policy, and the first such responsibility granted him is authority to command the military; he is the “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”
National defense is the only mandatory function of the national government. Most of the powers granted to Congress are permissive in nature. Congress is given certain authorities but not required by the Constitution to exercise them…
But the Constitution does require the federal government to protect the nation. Article Four, Section Four states that the “United States shall guarantee to every State a republican form of government and shall protect each of them against invasion.” In other words, even if the federal government chose to exercise no other power, it must, under the Constitution, provide for the common defense.
National defense is exclusively the function of the national government. Under our Constitution, the states are generally sovereign, which means that the legitimate functions of government not specifically granted to the federal government are reserved to the states. But Article One, Section 10 does specifically prohibit the states, except with the consent of Congress, from keeping troops or warships in time of peace or engaging in war, the only exception being that states may act on their own if actually invaded. (This was necessary because, when the Constitution was written, primitive forms of communication and transportation meant that it could take weeks before Washington was even notified of an invasion.)
From my perspective, these key two sentences in this report summarize the issue:
Article One, Section Eight of the Constitution lists 17 separate powers that are granted to the Congress. Six of those powers deal exclusively with the national defense—far more than any other specific area of governance—and grant the full range of authorities necessary for establishing the defense of the nation as it was then understood.
The last five words are the most important. The Constitution was drafted in 1787, four years after the end of the American Revolution in 1783. Given the timing, there should not be much guessing about what the writers of the Constitution had in mind with the term “national defense.” Let us get through some details:
I asked Google about foreign invasions of the US since 1787 (the drafting of the Constitution). It linked to a draft Wikipedia article that is under review but the gist of it is this:
The United States has been physically invaded on several occasions: once during the War of 1812; once during the Mexican–American War; several times during the Mexican Border War; and three times during World War II, two of which were air attacks on American soil.
The Defense Casualty Analysis System has a detailed list of war casualties. However, more than foreign armies, what are invading with increasing frequency are the climate consequences of environmental threats:
The disparate death counts in Kentucky are part of a long-standing problem: Despite the growing danger from climate-driven disasters, there is no single, reliable count of who is dying as a result of extreme weather in the United States. For any given weather disaster, multiple government agencies publish independent — and often widely differing — death counts.
The definitive federal accounting of climate change’s impacts in the United States, the National Climate Assessment, estimates that upward of 1,300 people die in the U.S. each year due to heat alone and that extreme floods, hurricanes and wildfires routinely kill hundreds more. But those numbers are rough estimates.
Or, on a more global scale, as Reuters reports: Extreme heat kills hundreds, millions more sweltering worldwide as summer begins:
LONDON, June 20 (Reuters) – Deadly heatwaves are scorching cities on four continents as the Northern Hemisphere marks the first day of summer, a sign that climate change may again help to fuel record-breaking heat that could surpass last summer as the warmest in 2,000 years.
Record temperatures in recent days are suspected to have caused hundreds, if not thousands, of deaths across Asia and Europe.
In Saudi Arabia, nearly two million Muslim pilgrims are finishing the haj at the Grand Mosque in Mecca this week. But hundreds have died during the journey amid temperatures above 51 degrees Celsius (124 degrees Fahrenheit), according to reports from foreign authorities.
The yearly US expenditure on defense is about 2 trillion US$, which is one third of the total federal expenditure. Going back to the beginning of this blog, it is true that the Constitution does not guarantee a blue sky and clean water to the population, but it mandates that the federal government must provide security to protect us from deadly harm. It doesn’t specify whether such security must be focused on human invasions or whether it can extend to the environmental consequences of human activities.
This is not a call to reduce expenditures on defense, as currently understood, but it is important not to dress up such expenditures as a constitutional mandate. EPA and OSHA mandates routinely come before the Supreme Court and the distinction is crucial.
The US Army and the US National Intelligence Council already recognize the role that environmental threats play in US national security (see the “global trends” series of blogs, in particular, the May 23, 2017 blog and “The Age of Consequences” movie discussed in the April 9, 2019 blog). It’s time for the Supreme Court and Congress to follow suit and recognize the current and oncoming dangers.
