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Larry Tribe: The Crank Years

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Chait has an amusing discussion of Laurence Tribe’s willingness to cash paychecks from Big Coal to make arguments better suited to the CATO institute blog:

Tribe is playing an important legal role, which has to be evaluated on its own terms. Other law professors, like Richard Revesz, Jody Freeman, and Richard Lazarus, have called Tribe’s legal argument frivolous and absurd. Tribe has responded. But aside from the legal case Tribe has devised, his advocacy is also playing a crucial public role in the debate — even liberal professor Laurence Tribe noted that Obama’s climate regulations must be unconstitutional, which sounds very different from even coal company lawyer Lawrence Tribe agrees that Obama’s climate regulations must be unconstitutional. Should anybody put weight on Tribe’s endorsement of the anti-Obama lawsuit, any more than they should have taken Harvard law professor Alan Dershowitz’s word for it that O.J. Simpson was innocent?

The question of whether Tribe is arguing in bad faith is difficult to answer. His fetish for bad states’ rights arguments did not begin here, although as far as I can tell he’s certainly never made any claims this remotely this bad or this radical before. As Paul has previously observed, at Tribe’s particular position in the legal profession asking whether he’s arguing in bad faith is almost a category error, like trying to figure out what the leader of a large brokerage party “really thinks.”

The more important question is whether his arguments are at all plausible, and…they are in fact strikingly terrible. They push far beyond current federalism doctrine to reach results with appalling consequences. Taken together, if applied seriously the arguments he’s making would threaten huge swaths of the United States Code. I’m particularly gobsmacked that he would embrace a favorite argument of radical libertarians, “the contemporary regulatory state is unconstitutional because the takings clause“:

Second, the constitutional arguments are wholly without merit. Tribe argues that EPA’s rule is an unconstitutional “taking” of industry’s private property under the Fifth Amendment because government regulation of power plant pollution has not covered greenhouse gas emissions until now. The clear implication of Tribe’s novel view of the Constitution is that the coal industry, and the power plants that burn their coal, possess an absolute constitutional property right to continue to emit greenhouse gases in perpetuity. No Supreme Court opinion has ever announced such a preposterously extreme proposition of constitutional law. Nor has even one single Justice in more than two centuries of cases endorsed such a reading of the Fifth Amendment.

If Tribe were right, government could never regulate newly discovered air or water pollution, or other new harms, from existing industrial facilities, no matter how dangerous to public health and welfare, as long as the impacts are incremental and cumulative. The harm EPA seeks to address with its power plant rule not only affects future generations, but also current ones already managing the impacts and risks of climate change. Indeed, after an unprecedented and exhaustive scientific review, EPA in 2009 made a formal finding that greenhouse gases already endanger public health and welfare. The D.C. Circuit upheld this finding, and, given a chance to review it, the Supreme Court declined. This is important because it makes it all the more astonishing that Professor Tribe has himself determined that greenhouse gases do not pose the kind of risk that government is entitled to address, unless it is willing to compensate industry for its losses. It is hard to imagine a more industry-friendly and socially destructive principle than this.

Thankfully, this principle has no basis in constitutional law. The Supreme Court has repeatedly made clear that the Fifth Amendment’s Takings Clause does not shield business investments from future regulation, even when that regulation cuts sharply into their profits. The Constitution protects only “reasonable investment backed expectations,” and there is simply no reasonable expectation to profit forever from activities that are proven to harm public health and welfare. Certainly the coal industry uniquely enjoys no special exemption from this fundamental constitutional rule.

The nondelegation and anti-commandeering are no better, and any of them could have been made by Richard Epstein himself. I don’t really care whether Tribe believes them or not; what matters is that they all need to be killed and the earth salted before they could reemerge. They would be embarrassing if they were being made for good policy ends, let alone being made to protect the interests of polluters and increase carbon emissions during an environmental crisis. And I’m note sure he’ll be able to get even Clarence Thomas’s vote for the constitutional arguments.

Tribe has made many salutary and important contributions to constitutional law. Where’s he’s coming from here, I have no idea.

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