Is the Texas Attorney General unfamiliar with the US Constitution?

I've found that generally speaking, people who shout about things not being in the constitution (usually conservatives, especially Teabaggers) often haven't actually read the document. A good example is Christine O'Donnell, who claimed to be a constitutional expert (because she took a weeklong class on the constitution from a right-wing think tank), yet didn't even realize that the consitution effectively establishes the separation of church and state.

Personally I also think that people put too much emphasis on what's in the constitution and what's not. The constitution is a living document, and we some of the laws it contains are not applicable to modern society. To me the question is not whether something is in the constitution, the question is whether it *should be* in the constitution. It's not 1787 anymore.

I'm not terribly familiar with the constitution myself. liberal is citing the supremacy clause, while most deniers are citing the 10th amendment. So let's take a look at them:

The Supremacy Clause asserts and establishes the Constitution, the federal laws made in pursuance of the Constitution, and treaties made by the United States with foreign nations as "the Supreme Law of the Land"

http://en.wikipedia.org/wiki/Supremacy_Clause

The Tenth Amendment explicitly states the Constitution's principle of federalism by providing that powers not granted to the federal government nor prohibited to the states by the Constitution of the United States are reserved to the states or the people.

http://en.wikipedia.org/wiki/Tenth_Amendment_to_th...

The Tenth Amendment is indeed what the Texas Attorney General is using to challenge the EPA's mandate to regulate greenhouse gas emissions.

http://www.tenthamendmentcenter.com/nullification/...

Now as liberal notes, the US Supreme Court already ruled on this issue. In Massachussetts v. EPA, the Supreme Court ruled that the Clean Air Act gives the EPA the authority to regulate tailpipe emissions of greenhouse gases.

http://en.wikipedia.org/wiki/Massachusetts_v._Envi...

That's where the Supremacy Clause comes in. The EPA has the authority to regulate greenhouse gas emissions under a federal law, as the Supreme Court ruled. So it seems to me like this issue has already been settled, and the Texas AG (and all the deniers siding with him in their answers) are disagreeing with the US Supreme Court. Since the Supreme Court has already ruled on this subject, I don't see how they could possibly win this case. No doubt the Texas AG is following in Ken Cuccinelli's footsteps, trying to make a name for himself with frivolous lawsuits pertaining to global warming.

*edit* Excellent answer from Matt as well.

*edit @ Expeller* 1st amendment, buddy. "Congress shall make no law respecting an establishment of religion" (Christine O'Donnell was provided with this exact quote and didn't recognize it, by the way). The Supreme Court (yeah those bastards again) have interpreted this as establishing the separation of church and state.

Nice to hear that when the government collapses, it will be taken over by gun-toting nutjobs like yourself. Very reassuring. I can't wait for the USA to look like one of the military-run African nations. I bet you make Glenn Beck dictator.

He'll unlikely have any success. I'm sure he's aware of the Supremacy Clause, and also Article 1 Section 8, though he's arguing that the 10th Amendment trumps this. Historically this almost never comes to pass. Nevertheless, too, the arguments for an interstate effect are in my mind strong, and I have not heard arguments from the other side to convince me otherwise. The constitution gives the federal government jurisdiction over federal matters, interstate matters, and those matters dealing with (and here's where it gets fuzzy on occasion) the carrying-out of the general welfare and common defense (Art 1 Sec 8). In this case, the Supremacy Clause and 1.8.3 rule (interstate trade regulation). It is NOT unconstitutional for the Supreme Court to rule that the EPA must exercise power under a law that has already passed. Congress does not need to create a new law for this. Congress can stop it de facto by cutting funding (unlikely that will happen with a Dem-controlled Senate and Executive), or de jure by passing a law nullifying it. That too is unlikely, since we have precedent with the previously failed "Dirty Air Act," and Obama will likely veto anyways.

As I said in another question, Texas has the right to pursue legal action and sue, but do they have a chance of winning? Precedent and constitutional law say "no."

As 95% of the Constitution has to do with the nuts and bolts of government, and nobody has ever held that there's some problem with, as for instance the presidential oath of office*, or that no title of nobility be granted. Almost all conflicts seen to center around money....generally because some party believes that some law will cause them to have to shell out a few buck or they'll be deprived of some amount of income. The big polluters don't want any laws that would restrict them from polluting...it ain't the 'Constitution'...it's about MONEY! They spend millions every year on 'campaign contributions' to get folks like the Texas AG to pimp for them. Like we don't already know this! They use arguments like 'job killer', not constitutional, it's a plot by the commies or some other bull #$% when ALL of their real reasons center on the bucks. The right wing radio dummies, who also pimp for 'big money' also wade in with the 'unconstitutional' BS just to muddy the waters. Here's the real scoop: The Constitution is an AFFIRMATIVE DOCUMENT. That is, if it's not forbidden it's allowed. Abortion is legal subject to time place and manner. Owning firearms likewise. Indulging in religious ceremonies...same thing. Church and state are separated by the fact that the Constitution clearly states that Congress shall make NO law. To put up a 500 foot cross or a one foot cross on federal property would REQUIRE that some government official sign off on the construction. That signing would amount to a federal regulation...and a LAW would have to be passed to allow for that regulation. The 'wingers need to give this up and at least try to understand that things have to be done about pollution...the Constitution isn't a suicide pact.

The supreme court has ruled also some of the following

Dred Scott V Sanford

Three of the justices also held that a black “whose ancestors were … sold as slaves” was not entitled to the rights of a federal citizen and therefore had no standing in court.

Plessy Vs Ferguson

“equal but separate accommodations” for blacks on railroad cars did not violate the “equal protection under the laws” clause of the 14th Amendment. By defending the constitutionality of racial segregation,

I am not suggesting that this ruling is of the same nature. However if one were to agree with every law and did not challenge laws we feel are wrong our country would not be free.

Just because it is a law does not make it just nor should one follow the blind lady calle djustice

I am ashamed of the responses I have seen on this site regarding the United States Constitution. I appears to me that you have not the slightest idea of what is at stake in this situation. The Attorney General and the Governor of the great State of Texas, the only state which was a Republic before it became a state, are very aware of what the Constitution says, and what it stands for. Am I the only one posting here who has taken an oath to protect the Contitution from enemies both foreign and domestic?

I find all ignorance apalling, but yours is especially that. You have never served in the armed services I take it. Too bad, you would have more respect.

Interesting question, it is as you suggest a question of Constitutional law, at this point the supreme court has decided that it is the responsibility of the EPA to regulate CO2, as a greenhouse gas. That actually requires the expenditure of federal monies, and of course all new spending must originate in the House of Representatives, and it requires new rules to be written, and those rules have become a part of the "law of the land", even though the laws here in this country must originate in the US Congress. Now, case law is nothing new to the federal registry, however there are those who believe that the federal courts have overstepped their boundries, that seperation of powers that we all know is guaranteed by the Constitution, and are actually changing existing federal statutes without the US Congress being involved. As you know, the regulation of CO2 and other greenhouse gasses is an extremely divisive issue, and with the seating of the next Congress, it is evident that there are many who are opposed to the EPA taking that responsibility, on orders from the Federal courts, and especially when the administration is supportive of this "backdoor" methodology of instituting new law without potential embarrassment of elected officials, and thereby potentially costing them votes.

Texas, and any other state has the opportunity and a clear mandate, to sue the federal government ANY time they feel their rights have been violated. I think you will see many of these sorts of actions taken, and you will undoubtably see some efforts in the HR to write new legislation to counteract what many consider to be judicial incursion into congressional purview. Whether these bills pass and are handed onto the president remain to be seen, however here is an interesting idea, in the HR, with the new Republican majority, and the remaining Gulf State Democrats, there are easily enough votes to overcome an expected presidential veto of any of several bills, the latest one proffered by the very lberal democrat from West Virginia, Jay Rockefeller, which would sevely limit the ability of the EPA to exist, notwithstanding regulate any greenhouse gasses. Whether there is that same majority in the US Senate, remains to be seen. There are those in the media who believe that Senator Rockefeller's introduction of the so called"dirty air" initiative is simply a ploy on his part to garner support form the oil producing mega corporations, and he does not expect it to get out of committee. That will remain to be seen.

Interesting times we live in, no?

Hi, I'm in environmental health. I've taken a semester in permitting, and it shocks me to see how overblown the EPA permitting process is made on Internet discussions like this. Permitting is not a ban, a tax, or a cap and trade scheme.

If you are starting new construction or major expansion of a project, and operation of your project will exceed one or more air pollutant emission thresholds, then you must get a permit from the EPA. The permit will allow construction and operation of the project, provided you comply with the permit's rules. The permit's rules usually include installing emission control technologies, allowing inspections, monitoring, and reporting emissions. If you stop following the permit's rules, only then will the EPA take action against you.

The permitting process will be exactly the same for greenhouse gases as with other air pollutants, except the thresholds for greenhouse gases are much higher. These high thresholds were designed to exempt all but the heaviest greenhouse gas emitters, like power plants and refineries. New power plants and refineries will still be built -- air permitting hasn't halted their development before -- and they would've been required to get air permits, allow inspections, and do monitoring and reporting anyway, due to their other non-greenhouse pollutant emissions. All that changes is the addition of greenhouse gas emission control technologies for new and expanded projects.

The EPA's authority to make such rules is derived from the Clean Air Act. Because the Clean Air Act is a federal law, the EPA's rules are binding on all states because of the Supremacy Clause. The EPA allows some states, like California, to issue their own air permits, provided the states' rules on emissions are equivalent or tougher than the EPA's. If, as in Texas as of 2011, the states' rules on emissions are weaker than the EPA's, then the EPA cannot allow the state to issue its own air permits, as that would violate the Supremacy Clause.

Although the Tenth Amendment is often cited when states wish to seek exemption from federal law (some call it the "tenther movement"), laws are rarely overturned on Tenth Amendment grounds.

The Supreme Court didn't rule that the EPA "can" regulate CO2, they ruled that they must regulate it. The ruling was that the agency cannot choose to ignore a law passed by Congress.

In a classic separation of powers, the Judicial Branch ruled that the Executive Branch cannot choose to ignore the Legislative Branch. Since Kennedy, the Executive Branch has made huge power grabs; this was on a very few slap backs at such such a power grab. Of the five justices in the majority decision, three were appointed by Republican presidents.

The problem is that the Senate has not acted on a badly needed comprehensive energy policy. That has left states in conflict and even entering international agreements on an issue that is clearly within the federal government's responsibility under the commerce section of the Constitution.

As we currently stand, Congress has passed a law, the Clean Air Act and the EPA is bound to enforce it. I suspect that Texas will lose this battle but hopefully it will encourage Congress to get its act together.

No, he may understand that he is going to lose the lawsuits, but he still can stall and make political hay with his buddies at home. People fight battles and play games all the times that they know they will lose. Perhaps his next political move will be toward Washington.

I respect the Texas Attorney General way more for doing this than I do for Cuccinelli and his various witch hunts, which are clearly an abuse of power on his part.

With 4 more representatives in the house and 4 more electorial votes, for the next 10 years Texas makes up more of the federal government.