February 23, 2016
By the Hon. Greg Zoeller, Indiana Attorney General
As the nation reflects on the service of Associate Justice Antonin Scalia, one of his final acts on the United States Supreme Court days before his death has been overshadowed.
A preliminary order that the Supreme Court issued Feb. 9 by a 5-4 vote — with Scalia in the majority — potentially could be of long-term legal significance. The court took the extraordinary step of ordering a halt to an Environmental Protection Agency rule that would regulate existing coal-fired power plants. Twenty-six states, including Indiana, contend EPA through this rule has overstepped its authority under the Clean Air Act. The court granted the relief the states sought and ordered a temporary stay of the rule while the underlying legal challenge plays out in the lower court. As some commentators have noted, the court “hit the pause button” on the EPA rule.
Media coverage of the Feb. 9 order prior to Scalia’s death focused on the policy arguments over the impact of the EPA rule on air quality and the costs of electricity. The fact that the Supreme Court took this rare action now — rather than wait for the lawsuit to work its way up on appeal from the lower court, which could take another year — suggests the court might have reservations about how far a federal agency may extend its own powers without congressional authorization.
States such as Indiana regularly have challenged in court what we consider overreach by federal executive branch agencies such as EPA. While many confuse these challenges with the policy arguments surrounding the regulations, as attorney general I see them as a healthy part of the checks and balances of our constitutional system. President Obama expressed his frustration with the inaction of Congress when he said in a different context, “If Congress won’t act, I will.” Inherent in that approach is the constitutional question of the limitations on the power of the executive branch. If the president may act without Congress, what remains of the legislative role within our three equal branches of government?
As the legal representative for our state government in court, my obligation is to be part of the checks that help balance the power of our federal government. I do not defend Congress’ inaction on any number of areas of its federal responsibility, but it is my role to defend against federal government executive actions that encroach powers reserved for our state. The failure of Congress to act does not empower the president to assume legislative authority. The framers of our Constitution designed our system of separation of powers to prevent any branch from growing too powerful or authoritarian.
These constitutional protections are critical for our system of ordered liberty. Maintaining the proper checks and balances among the three coequal branches and between the states and federal government is essential to maintaining limitations on the power of government at both the state and federal levels. Limiting the power of all government is at the core of our Constitution, which in turn protects individual liberty and freedom.
Justice Scalia was a champion of limited government and of adhering firmly to legal texts, rather than indulging in expansive, imaginative interpretations of them. My hope is that his eventual successor will share a similar skepticism toward federal agencies that overstep their bounds and will favor a more appropriate balance of power.