Blank Checks: An Analysis of Emergency Actions Warranting Unilateral Executive Action

This Note discusses the separation of powers issues raised in the D.C. Circuit by then-Judge, now Justice Kavanaugh in Mexichem Fluor’s suit. Specifically, this Note analyzes the federal government’s approach to climate change, overreach of the EPA to act beyond its statutorily granted authority, and the EPA’s reliance upon President Obama’s executive directives as the justification for its overreach. Part I of this Note provides a broad introduction of the CAA and the importance of the policy motivations for the later addition of Title VI to the Act. Part II discusses in more depth the decision in Mexichem Fluor v. EPA and why the 2015 Rule prompts separation of powers concerns. In Part III, this Note explores the constitutional framework for the separation of powers amongst the three branches of government during ordinary events. Alternatively, Part IV looks at the constitutional framework for emergency powers by the President in the historical and modern contexts and provides an example of emergency powers delegated to an agency. Part V discusses the ramifications of providing a blank check to an executive agency in an emergency, but ultimately provides three alternative actions an agency could take while maintaining the constitutional separation of powers. Finally, Part VI discusses the current status of the Mexichem decision and its role in Kavanaugh’s recent appointment to the United States Supreme Court. This Note concludes that just as the Supreme Court has held in the arena of terrorism, the standard procedures of constitutional governmental action should be followed in response to climate change because our separation of powers doctrines both provide stability and strengthen the nation’s ability to respond to crises and emergencies