Transportable Originalism

The Environmental Protection Agency has long been a bete noire of movement conservatives. The story of "The Other Rights Revolution," the title of Jefferson Decker's important new study of conservative public interest litigation groups' attack on the regulatory state, supplies the bulk of the story. But of course dislike of the EPA wasn't limited to conservative lawyers. Tom DeLay would often tell reporters that his time as a suburban Houston bug exterminator led him to view the agency as "the Gestapo," a characterization he held onto until his resignation from the House after being indicted. And the EPA was helpfully offered by Mitt Romney when Rick Perry ran into a mental roadblock at a 2012 Republican presidential debate.

It is not surprising, then, that Politico reports:

What Administrator Scott Pruitt calls his “Back to Basics” agenda would refocus the agency on narrow goals such as cleaning up toxic waste and providing safe drinking water — the kinds of issues that inspired the EPA’s creation in 1970 amid a public outcry about burning rivers and smog-filled skies. But it would abandon the Obama administration’s climate regulations, along with other efforts that Pruitt argues exceed the agency’s legal authority. 

What is interesting is how Pruitt is explaining the changes: "EPA originalism" that will lead to "a restoration of [the EPA's] priorities." Some legal academics might dismiss this as mere rhetoric or sloganeering. But this misapprehends how ideas, like originalism, structure politics. Indeed, ideas are constitutive of politics. The power of invoking originalism here is clear: the EPA's enabling act [Constitution] was written with a fixed meaning (what Larry Solum calls the "fixation thesis") and subsequent constructions of the statute [Constitution] have departed from this original meaning thus the need for a "restoration." (Restoration is a common theme invoked by originalists and constitutional conservatives cum libertarians (see Randy Barnett, Richard Epstein, Charles Murray, Glenn Beck, Mark Levin, among others).

Neither is this merely an invocation of a popular conservative slogan -- "EPA textualism" admittedly does not have the same ring -- for the engaged conservative voter, whereas sophisticated judges and legal academics would simply interpret the putative plain meaning of the statutory language. For Pruitt, that won't do because of how the EPA, as an umbrella agency, is enabled; for example, as the Politico report notes, "the Clean Air Act says EPA is supposed to base those decisions [smog standards] solely on the latest health science."

This new development of invoking originalism as a limiting device for a regulatory agency by conservative governing elites is worth paying attention to. Originalism has become hegemonic on the Right vis-a-vis the Constitution; its reach may be expanding.

 

Comments

[Deep State Special Legal Counsel]

Originalism in this limited context means abolishing the EPA altogether. In the early 70s, I recall my dad telling that Nixon needed a huge "Wag the Dog" style diversion from his prosecution of the Vietnam police action. Nixon came up with "pollution and pollution controls" as my dad put it.

[anon]

Your entire thesis and construction is so stale and amateurish - stringing together the names of "conservatives" you clearly loathe (without even attempting to describe their views), labeling them "conservatives" and thus posturing them as "enemies" by smearing them (noting and spinning irrelevant personal facts), throwing around some buzz words and slogans (too numerous to mention, but this point is quite obvious), and then coming to a ridiculous conclusion (e.g., here "Originalism has become hegemonic on the Right vis-a-vis the Constitution; its reach may be expanding.").

You have clear established that you have a deep reservoir of hateful attitudes towards "conservatives" and "the right" but, truly, in all these long tiresome posts, there isn't even an ounce of scholarship, insight or compelling reason. Your polemical rants are often wrong on the facts, and woefully short on research and thoughtfulness.

[Professor Hank Cornley]

"...in all these long, tiresome posts" which I keep reading...

[anon]

Professor .... and your point is?

Hope springs eternal. Sometimes, a poster on this website learns something along the way. Especially one who seemingly has not had to face critical comments from those who do not share certain bigoted and prejudiced premises that are, admittedly, prevalent but unfounded. The author above, IMHO, has gone way off the deep end. Oh wait, I forgot. Your implied point is that those who don't agree shouldn't read what they dont' agree with.

Typical.

Apparently, you think reading and thinking and commenting about another's pov, one with which this reader finds serious flaws, is some sort of error. That, dear sir, is illogical and the sort of an argument that one wouldn't expect from an open minded, liberal thinker like you. Oh wait. I forgot. You took the time to post a comment faulting someone for reading a post and commenting.

FWIW, I don't think that the author above has thought enough about his premises and his prejudices against and contempt for "conservatives" (a banner under which he lumps together everything he perceives to be "not liberal" which, in reading his comments, amounts to a nonsensical categorization full of bunk and rich with some really vile personal smears).

As stated above, I don't think his posts add anything to an understanding of "originalism" but instead amount to nothing more than a poorly thought out excuse for calumny against a concept that the author mistakes for a political party. I find these sorts of political vendettas, posing as "scholarship" to be inappropriate and degrading to the enterprise of valid scholarship.

Until this website says otherwise, those who come to post have to expect some push back on this sort of political blather. You have the right to make snarky remarks. I find your comment no more valid or useful than you find mine.

[Deep State Special Legal Counsel]

anon,

Originalism is neither Conservative nor Liberal. It is a response to the notion that the constitution is a "living, breathing document" that comports itself to today's norms and values. Nationalistic Extremism in the form of Donald Trump has poked its ugly camel nose into the tent. The "new values" of the bo0y politic, at least in Ohio, Michigan, Wisconsin and Pennsylvania. Originalism can restore the balance back to the middle.

[Enrique Guerra Pujol]

Google translate for progressive versus conservative discourse: "This new development of invoking [equality] as a [broadening] device for a regulatory agency by conservative governing elites is worth paying attention to. [Social justice] has become hegemonic on the [Left] vis-a-vis the Constitution; its reach may be expanding."

[Susan]

Hi. Professor. I wasn't sure to post this here but as it relates to Environmental Law, I wanted to post regarding the death of Professor Cheever from the University of Denver. I'm not sure there was a post here about his death which occurred on a rafting trip with his family in Dinosaur Nationsl Park.