Harvard Professor’s Latest ‘Heresy’ Throws Water on Obama EPA’s Climate Policy

Is Harvard University law professor Laurence Tribe trying to become the liberal who is most despised by other liberals?

It might sound odd to hear such a question asked about an academic who once mentored a young Barack Obama about the nuances of constitutional scholarship, who liberals once embraced as a potential nominee to the U.S. Supreme Court, and who represented Al Gore in the former vice president’s Supreme Court lawsuit against George W. Bush following the 2000 presidential election—but consider the evidence.

Exhibit A. In 2008, Tribe wrote an op-ed for the Wall Street Journal, arguing that the Second Amendment protects an individual right that is more fundamental than any collective right to keep and bear arms as a member of a state militia or national guard unit. The piece was noteworthy for its iconoclasm and eloquence, but it was hardly the first shot the esteemed professor ever fired in the intellectual battle over gun rights.

In fact, some believe that Tribe’s earlier scholarship on the topic, notably his revisions to his famed treatise on the U.S. Constitution, was critical to the legitimization and mainstreaming of the individual-rights interpretation of the Second Amendment among the law school professoriate and also helped secure subsequent legal victories for that view.

Some might have thought (or hoped) that Tribe’s challenge to liberal orthodoxy was a one-off case of ideological heresy, never to be replicated with other subjects dear to the hearts of progressives, but now comes this:

Exhibit B. Tribe is now representing Peabody Energy, the nation’s largest coal company, in its legal challenge to recent federal restrictions on carbon dioxide emissions at coal-fired power plants. In comments filed last December, Tribe, his Harvard colleague Carl Loeb, and Peabody argued that the Environmental Protection Agency overstepped its legal bounds with its Proposed Rule on carbon emissions (79 Fed. Reg. 34830) and claimed that if it goes into effect, this would eliminate coal generation in 12 states.

“It is a remarkable example of executive overreach and an administrative agency’s assertion of power beyond its statutory authority,” they wrote. “Indeed, the Proposed Rule raises serious constitutional questions.”

Next week Peabody and counsel will have their day in court, as the Supremes hear oral arguments, but already the sparks are flying. Tribe has been called a “traitor” who “sells his soul to big coal” and “hates your lungs” and is helping to “kill the planet.” Tribe, to his credit, has taken the higher ground, highlighting critical legal and constitutional principles at stake.

In testimony before a House subcommittee last month, Tribe said: “EPA is attempting an unconstitutional trifecta: usurping the prerogatives of the States, Congress and the Federal Courts all at once. Burning the Constitution should not become part of our national energy policy.”

Whether or not the rule of law survives the latest assault by the executive branch’s regulatory apparatchicks, it’s heartening to know that there are still independent thinkers willing to risk ostracism by their former supporters in order to uphold cherished ideals.

Carl Close is Research Fellow and Senior Editor for The Independent Institute and Assistant Editor of The Independent Review and editor of The Lighthouse, The Independent Institute’s weekly e-mail newsletter.
Full Biography and Recent Publications
Beacon Posts by Carl Close
  • Catalyst
  • MyGovCost.org
  • FDAReview.org
  • OnPower.org
  • elindependent.org