Columbia law professor Tim Wu smarmily insinuates on the New Yorker’s website today that if colleagues like Harvard’s Laurence Tribe are going to speak on behalf of huge corporations like Peabody Energy in its lawsuit against the Environmental Protection Agency, instead of defending “underrepresented” clients whose views otherwise “would not be heard,” then universities ought to rethink their longstanding policy of letting faculty lawyers work for private clients. It is deliciously self-satirical that Wu also directs a Columbia Journalism School First Amendment center as well, for the real purpose of his piece seems less a complaint about the wealth of Tribe’s client than an effort, however anemic, to silence Tribe’s defense of constitutional views that Wu dislikes. Free speech, indeed.
Within the welter of legal complexities surrounding the Peabody case are several luminously clear constitutional issues that Tribe, normally dependably left-of-center, sees in ways that would gladden a limited-government originalist’s heart. First, though Congress refused to pass a law addressing climate change, Tribe points out, the EPA is behaving as if it has the authority Congress refused to give it, wielding the Clean Air Act in ways Congress not only didn’t authorize but also expressly forbade in the Act itself. Moreover, though Tribe doesn’t say so, it is clear that this executive-branch agency is trying to use its non-existent legislative-branch mandate to carry out a highly contentious, highly partisan policy of the Obama administration. As the New York Times quotes one anonymous former administration official, “Whether he intended it or not, Tribe has been weaponized by the Republican Party in an orchestrated takedown of the president’s climate plan.” Moreover, Tribe reports himself mystified as to how the EPA has the gall to contravene the federal government’s “promotion of coal as an energy source,” and to envision, in contravention of the Fifth and Tenth Amendments, shutting down not just a major industry, but also the way of life of whole communities and indeed a whole region of the country.
What is most important about Tribe’s involvement in this case is that he lends his considerable professional authority and impeccable liberal credentials to an increasingly loud chorus that questions the constitutionality of the Administrative State that has developed ever since the establishment of the Interstate Commerce Commission in 1887. Unlike the Founding Fathers, Progressive politicians, with Theodore Roosevelt and Woodrow Wilson in the lead, envisioned government not of, by, and for the people, but rather by highly trained, nonpartisan experts who would use the latest scientific knowledge to make better regulations for people than they could make themselves through their elected representatives.
This enterprise was unconstitutional, even un-American, in itself. But as the administrative agencies developed—as they violated the Madisonian principle of separation of powers by merging together executive with legislative power, which the legislature had no constitutional right to delegate, and with judicial power, which the legislature most certainly had no right to delegate—promulgating rules, charging people and corporations with violations of them, and exacting penalties without the benefit of grand or petit juries, in defiance not only of the American Bill of Rights but even of the Magna Carta, they evolved into an utterly unaccountable government that is nothing like the democratic republic the Founders envisioned. What’s more, with lobbyists having so much sway over them and often writing their regulations, the administrative agencies turned into the guarantors of crony capitalism, protecting giant corporations against competition from upstarts, just as the ICC protected the railroad cartel 132 years ago.
To the elites of Harvard and Columbia, Tribe may look like a traitor. But he is a constitutional lawyer in the most literal sense—and Americans owe him a debt of gratitude for attempting to restore popular sovereignty.