Conservative Legal Team from Obamacare Case Now Fighting the EPA


ACRU Staff


January 7, 2011

This column by ACRU Senior Legal Analyst Ken Klukowski was published January 7, 2011 on

On Dec. 30, a federal appeals court froze new EPA regulations on greenhouse gases. The team representing the State of Texas in this appeal is also the team managing the largest Obamacare lawsuit in America, led by a lawyer from the Reagan administration. This appeal is the latest reminder that America needs good judges to uphold the rule of law and stop President Obama’s ongoing power grab.

The Environmental Protection Agency (EPA) issued its first round of anti-business, job-killing carbon regulations last year. Those rules were to go into effect this year, and EPA Administrator Lisa Jackson–President Obama’s handpicked EPA head–has said additional rounds of massive regulations will be forthcoming. These regulations give increasing power to EPA over every CO2 source in America. This includes every car, truck, furnace, chimney and lawnmower, as well as every factory, tractor and assembly line. It’s a massive power grab that will drive up the costs of everything you buy.

The Democrat-controlled Congress couldn’t pass a law claiming such sweeping power, even with huge majorities led by Nancy Pelosi and Harry Reid. What infuriates conservatives about EPA’s Big Brother monstrosity is that when even a liberal Democratic Congress refuses to pass such a law, one of President Obama’s agencies just unilaterally claims the power to do it all by itself, bypassing Congress.

(To be fair, it must also be noted that in the worst administrative-law case in history, in 2007 the Supreme Court narrowly held that the EPA might have power under the Clean Air Act (CAA) to control carbon emissions. This narrow 5-4 decision in Massachusetts v. EPA is roundly criticized as a terrible decision that should be overruled.)

The State of Texas stood up against this power grab with a legal challenge. EPA did not allow a public “notice and comment” period as required by the Administrative Procedure Act (APA), instead summarily overriding Texas’ longstanding environmental regulations.

So Texas appealed, and on Dec. 30, the U.S. Court of Appeals for the District of Columbia Circuit issued an order staying the implementation of EPA’s new regulations. The D.C. Circuit’s temporary stay ordered the parties to submit briefs over the next few days to begin the review process of EPA’s rules.

Interestingly, Texas retained the law firm Baker & Hostetler, and specifically one of its partners, David Rivkin, to represent the Lone Star State before the D.C. Circuit. Rivkin is a veteran of the Reagan administration and a prominent figure in conservative legal circles.

Rivkin is also the lead counsel for the multistate lawsuit challenging the constitutionality of Obamacare, currently being fought in the federal district court in Florida. That case was argued on Dec. 16, where a decision is expected within the next two months. After that decision, Rivkin will represent Florida and the other states (including Texas, incidentally) on appeal.

With this EPA appeal, now Rivkin’s team at Baker & Hostetler is spearheading the conservative pushback on a second front in the fight against Team Obama. Obamacare is illegal because it violates the Constitution to require people to buy healthcare insurance, to cripple local businesses that don’t offer insurance, and to coerce the states through a sweeping overhaul of the Medicaid system. The EPA’s new regulations are illegal because they didn’t follow the requirements of federal law in opening the rulemaking process to the public for scrutiny and comment. Both cases involve illegal power grabs by President Obama and his lieutenants.

This federal appeal in Texas v. EPA is the latest reminder that over the next two years Americans must look to the courts to uphold the rule of law and restrain the runaway power of this administration. It’s also a reminder that conservatives cannot succeed in beating this administration unless we fight for judges who will faithfully uphold the rule of law in the courts.



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