President Obama had previously explained time and again that he had no authority to legalize millions of adults through executive order.
The States followed a similar pattern of success in stopping President Obama’s effort to enact transformative immigration reform through agency action. Had they not sought and obtained the stay of the Plan from the Supreme Court, the Plan would already have forced the States to start transforming their energy economies without any congressional authorization. While Administrator Scott Pruitt has now proposed to repeal the Clean Power Plan, the States’ actions were critical. This appears to be the only instance of the Supreme Court ever blocking a federal regulation while litigation on that regulation was still pending in the lower courts. The United States Supreme Court agreed with the States, staying the rule in a historic, 5-4 stay. A twenty-seven-State coalition, led by Attorney General Patrick Morrisey of West Virginia, sued to stop the Plan and asked the United States Supreme Court to stay the Plan during the litigation. In essence, the EPA argued that, based upon an obscure provision of the Clean Air Act, the agency could force States to reorient their entire energy economies away from power plants and in favor of renewable energy through a cap-and-trade regime. The Clean Power Plan is the Environmental Protection Agency’s effort to enact, by regulatory fiat, a nationwide cap-and-trade regime strikingly similar to the one that President Obama had unsuccessfully sought to shepherd through Congress soon after his 2008 election. The success of State attorneys general in obtaining a Supreme Court stay against the Clean Power Plan is one of the singular achievements of modern separation-of-powers and federalism litigation. Even now, as the onslaught appears to have ebbed with a new Administration that has a different attitude toward agency authority, attorneys general continue to play an active role in defending congressional actions that seek to overturn regulations by legislation under the Congressional Review Act. Responding to this regulatory attack, State attorneys general - as the chief law enforcement officers of their States - successfully protected their States and citizens against federal agency encroachment. These attorneys general realized that while jurists and scholars typically discuss the agency overreach problem as one of separation of powers - agencies attempting to settle issues of “ vast economic and political significance” through rules or guidance documents when such decisions on national issues belong rightfully to Congress - the problem is also one with deep federalism implications, as agencies purport to make laws that usurp State authority and impose significant costs upon the States. Through coordinated legal actions of a majority of the States, the attorneys general halted entirely all three attempts to enact transformative change through regulation. President Obama’s actions spurred State attorneys general into action, highlighting one of the important roles played by State attorneys general and resulting in remarkable success in blocking the President’s attempted agency overreach. These agency actions were nothing less than attempts to enact the most far-reaching energy, immigration, and land-use reforms in a generation, without any congressional action indeed, in the face of congressional rejection of these very policies. Three of his Administration’s signature second-term initiatives were regulatory actions: the Clean Power Plan, Deferred Action for Parents of Americans, and the WOTUS Rule. We saw this when President Barack Obama declared his intent to direct agencies to achieve through executive fiat what he had failed to secure through legislation, touting his willingness to use his “ pen phone.” And President Obama’s agencies heeded this call. Federal agencies overstepping their statutory and constitutional authorities, in order to aggregate power to the Executive Branch, has become an issue of especial concern in recent years in the legal academy.
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