In a very surprising outcome, Chief Justice John Roberts cast the fifth vote to save Obama’s Affordable Care Act.
The key aspect of the decision that I think is relevant to climate policy is how the 5 justices decided to uphold the centerpiece of the ACA, the individual mandate requiring people to buy health insurance:
The court rejected Obama administration’s commerce-clause argument, but ruled 5-4 that Congress nevertheless “has the power to impose” the individual mandate under its taxing authority. The provision “need not be read to do more than impose a tax,” the opinion said. “This is sufficient to sustain it.”
In short, complicated justification for mandate fails, but tax wins. Note that this is in spite of the fact that most constitutional scholars always considered the mandate itself constitutional. Justice Kennedy (!) wrote in the dissent: “In our view, the entire Act before us is invalid in its entirety.”
My guess is that people who write climate legislation will take away from this that a lengthy bill designing a complex system to control CO2 and other greenhouse gases will be challenged in the court by conservatives and might conceivably lose. But Congress has taxing authority and that isn’t going anywhere. Yes, I’m aware that the U.S. Appeals Court upheld EPA’s greenhouse gas emission rules. But the climate bill that was considered by Congress to controls GHGs was considerably different and more complicated than those rules. Again, I don’t think the bill actually was unconstitutional, only that you never know what the Roberts Supreme Court (or a future one) might decide.
Back in February, Climate Progress reported that “Bipartisan Support Grows for Carbon Price as Part of Debt Deal.” As I write a year ago, the only plausible scenario now for seriously addressing US greenhouse gas emissions in a way that would enable a global deal and give us some chance of averting catastrophic multiple, simultaneous climate impacts is for a serious carbon price to be part of the post-2012-election budget deal.
It is still safe to say that this is not a high-probability outcome, but it is non-zero.
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Language Intelligence: Lessons on persuasion from Jesus, Shakespeare, Lincoln, and Lady Gaga
Well, there certainly have been plenty of people — climatologist James Hansen among them — who have long advocated a straightforward carbon tax as substantively preferable to a cap-and-trade system.
Hansen is absolutely right. In addition, his version of the carbon tax provides much needed relief for the middle class and those who consume very little in the way of fossil fuels. It puts the incentive and the aid directly where it is needed right now.
HR 3242, the “Save Our Climate Act” (SOCA) is a fee-and-dividend carbon tax that has recently grown from 12 to 18 House co-authors. The real push will come next session.
The “dividend” part returns almost all the carbon fees in equal per capita monthly “green checks” to Americans with a tax ID number. (Essentially, the lowest 60% by income, will break even or come out ahead.)
It also has border adjustment taxes that will impose import fees on goods (based on carbon production content) in countries that don’t have a comparable system for reducing emissions.
No less than Exxon-Mobil CEO Rex Tillerson called for a Carbon tax on Jan 9, 2009:
http://blogs.wsj.com/environmentalcapital/2009/01/08/exxons-tillerson-give-me-a-carbon-tax-not-cap-and-trade/
“My greatest concern is that policy makers will attempt to mandate or ordain solutions that are doomed to fail,” Mr. Tillerson said.
I haven’t yet read today’s opinions on the Affordable Care Act, but to the extent federal climate legislation regulates businesses, it should pass Commerce Clause scrutiny with no problem, and to the extent it directly affects individuals as, in essence, an excise tax, it should be fine under the taxing authority of the federal government. It is when you mandate that an individual affirmatively do something that you potentially raise issues.
To me, the more problematic lurking problem under the Commerce Clause is the issue of federal preemption. If Congress passes watered-down climate legislation and gives any express or even implied indication that it intends to preempt the field, it could actually undercut the more aggressive steps being taken by states such as California.
The post yesterday connecting the fires, floods, and heat waves with climate change was great… someone with social media savvy needs to make those types of articles go viral into places such as Tumblr and Facebook and, better yet with explanatory (viz. this IS climate change, folks!) video clips of real footage put on YouTube to outflank MSM’s dropping of the ball.
A lot of folks have constructed persuasive cases for why and how a carbon tax could be made in a way that is revenue neutral and would leverage market forces to steer us in the right direction on energy choices.
Unfortunately the Club for Growth, ATR and others have completely poisoned the public mind when it comes to the notion of taxation. It took these people decades to assassinate the character of government and it won’t be a cakewalk to undo the damage they’ve caused.
Perhaps the best thing that could be raked from the ashes of places like Colorado Springs is an illustration of the powerful positive benefits of the public purse. Without a government and a means to pay for it, how many homes would have burned in Colorado Springs? There are some conservatives complaining in Colorado right now about how “government” didn’t do enough to get Waldo Canyon in control fast enough; their complaints have referred to specific resources that were constrained by lack of finance. Asked about anger from conservatives about the Federal government’s lack of air tanker resources, Governor Hickenlooper’s response was dead on target: ”Were these the same conservatives that were so worried about the Obama administration spending too much money, or were these different conservatives?”
Taxation is a transcendent evolutionary accomplishment in human culture; understanding the greater power a dollar has when it’s taken from one’s own wallet and pooled with many others is a huge thing. The maturity to go along with spending decisions that do not exactly coincide with our own personal desires got us to the moon.
We’ve been fooled into considering taxes to be a horrible thing when in fact they’re a stellar accomplishment of cooperation. It’s time to remind people of that.
Another benefit of a carbon tax is that it is very quick to design and implement.
I think people understand and accept the concept much better as well. We are used to paying taxes for many reasons.
On such an intentionally muddied issue there is a compelling case to be made for keeping any solution as simple as possible.
Yes, the decision is encouraging and hopefully an affirmation of rationality.
And yes, it must be kept simple to effectively act on climate change at wartime speed.
And yes, the carbon tax will be effective but the real action will come when the American people and industry have risen to act on the accelerating emergency.
The carbon tax and other similar stuff will serve as supporting legislation.
Let’s Not Make The Same Mistake Ten Times
Joe and all …
Let’s not make the same mistakes this coming time as were made in previous attempts: no leadership, blindingly complex legislation (whether or not legislation is constitutional, there are still the issues of clarity, understandability, and effectiveness), and others.
In other words, let us NOW draft the essential elements, in simple terms, of what should become the climate bill.
At this point, people should be taking “everything we know so far”, “everything learned from the past”, and drafting the essential philosophy of, key elements of, and basic justifications for the ideal climate (and related energy) bill. Do it now. Keep it simple, elegant, understandable. Make sure it makes sense and can be very soundly and convincingly defended.
For once, let’s get AHEAD OF THE BALL. Let’s lead, not “respond”.
Yes, yes: if for financial and political reasons such a bill “must” be tied to the deficit/debt issues in order to get passed, so be it; but that doesn’t mean that its elements related to GHG emissions, its aims related to them, its chief mechanisms and so forth should be “driven” by the deficit/debt issue. It merely means that some — and perhaps some considerable — portion of the proceeds generated by a carbon tax or cap-and-trade revenue will, apparently, need to go towards deficit and debt reduction. Even if that is the case, in order to get it passed, that does not mean that the basic philosophy, general structure, key elements, main goals, and so forth of the bill can’t be designed, up front, with a great deal of clarity. Not 1,000 pages, please. An excellent summary of seven pages or less is what’s needed.
Does anybody have such a thing, one that major constituents (who genuinely want climate change addressed) agree to, READY-TO-GO by late January 2013 in the case that Obama is reelected?
Indeed, does CP have such a thing: a clear and concrete summary of what you folks think would be a necessary, compelling, effective, rational, and doable climate bill? If it exists, please let us know where. If not, would you agree that it should exist as soon as possible, and certainly no later than January?
In short, if Obama gets reelected, and if at that point he “punts” to Congress (like he did with healthcare), abdicates leadership, makes “preemptive concessions” to the Repubs, and ends up sheepishly championing a highly complex, impossible-to-understand, Frankenstein-like 1,500 page bill that nobody likes or has even read, we will all deserve what we get. Let’s not make those mistakes again. Let’s make sure something excellent is “ready-to-go” right away. Indeed, Candidate Obama SHOULD be able to explain to us exactly what that is — exactly what he will push, if elected — BEFORE the election.
Thanks,
Jeff
Jeff.
I’d suggesst you at least go to Citizens Climate Lobby. Click on their button for “Save Our Climate Act.” It has links to the bill text for HR 3242 and various fact sheets.
More than 100 members of Citizens Climate Lobby are coming to Washington the week of July 22nd to lobby members of congress on this bill.
We do not have the CAP/CP seal of approval yet, but it’s been strongly endorsed by Dr. James Hansen, and it’s my understanding that it’s been endorsed by 350.org.
When several hundred citizens come to Washington at their own expense to lobby for a carbon tax we hope that at least those of you in the climate community who have not picked up on it yet, will start paying attention–and start helping us.
Hi Dick, thanks for the info, and I’ll do that. I hope the bill (and the info summarizing it) are good — can’t comment yet, having not seen it.
That said, whether THAT is the ideal/best bill, or not, either way — part of my point is that we should set our sights much, much higher (relative to where they’ve been in the past) in terms of getting EVERYONE (who genuinely wants an excellent bill to address climate change) on board AND to make sure that such a bill is clear, understandable, sensible, and compelling, AND to make sure that it is easily and actively explained to the public. Put another way, six months from now we shouldn’t have to be referring to HR XXXX, to long text on the web, to a list of groups that support it and many that we aren’t sure support it, and so forth. That’ll never work. Instead, we need to have something that is so clear, so compelling, so understandable, so sensible, so fair, and so forth — and with a name, not merely an HR number — that Rachel Maddow, Jon Stewart, Robert Redford, and all sorts of other people can explain easily to the public — not only WHAT it involves, but also WHY it makes sense. And (of course) after three-plus years, we all need to get our acts together: in other words, if it is the best possible bill, and compelling, why isn’t CP/CAP behind it, or why don’t we know whether CP/CAP are behind it? And so forth.
My point is this: During these coming months, we should not only make sure that we have something excellent, that’ll work, but also that we all agree on it and that people like Maddow and Stewart and others can easily describe and explain it in less than 30 seconds, compellingly, to John and Jane Public.
Cheers and Thanks!
Jeff
Roberts’ vote has NOTHING to do with “let’s avoid complicated laws”
It has to do with what he thinks will HURT OBAMA the most. CALLING IT A TAX.
These
convervativeultra-right ideologues and even the merely “center-right” (the cetner-right in the U.S. would be far-right in Europe on many if not most issues) think that way.Even less extremist Sandra Day O’connor was heart at a cocktail party (this was reported, not a joke I’m making up) saying, when she heart that Gore apparently won the presidency, “oh no, now I can’t retire for another 4 years” or to cite the more extremist action: the tortured “logic” used by her and others on the Court to deny Gore the vctory by insisting that their “
states’s rightswhatevers-convenient ideology meant the FL vote has to STOP before we find out what the FL totals would be.Lesson: If anything, it shows the carbon TAX TAX-OMG BIG GUBMIT!111 is something the right feels would hurt Democrats…and the right, with its fingers on the pulse of their base, is probably correct on that tactical analysis.
Now, instead of a “Tax”, call it a No Market Freeloaders law that doesn’t allow externalization of costs by players, making them pay true costs, then you ahve a shot of getting it passed or at least getting it to “pass” public scrutiny by the masses.
No. This decision helped Obama. Killing ACA would have hurt him.
“[the survival of civilization as we know it, is] not a high-probability outcome, but [the probability] is non-zero” -JR
Let’s put that
cheerfulsobering thought on humanity’s epitaph ;-)Actually we need a cap AND a
taxAnti-Market-Freeloaders (AMF), pay-true-costs provision, we need both, not either/or.If the
scientistsphysics says we can’t go above N, then we need a cap making it illegal to go above N (or above N_1, N_2, N_3 etc in years 1, 2, 3…where sum of N_i is N)no to hope an AMF law by itself will be what we bed humanity’s future on that it will “maybe” succeed in keeping us under N gigatons..so we need cap-and-dividend AND ataxAnti-Market-Freeloaders law.