The Environmental Protection agency finds no basis for existence in the U.S. Constitution
Debate Rounds (4)
Constitutional: Finding basis for existence in the document itself, interpreted by the philosophies of the Founding Fathers.
EPA: The Environmental Protection Agency in its regulatory capacity.
I accept this debate, and will negate the resolution that "The Environmental Protection agency finds no basis for existence in the U.S. Constitution." To this end, I will not necessarily defend every action of the EPA, but will instead argue as constitutional a theoretical "agency regulating (setting standards for) the actions of the people with regards to the environment."
The government has the power to collect taxes, borrow money, regulate commerce among states and with foreign nations, establish rules of naturalization and bankruptcy, coin monies and set the values thereof, punish counterfeiters, establish post offices and post roads, establish patent system, constitute courts inferior to Supreme Court, punish piracy, etc, declare war, raise armies, establish a navy, call forth militia, and have authority over lands owned by the government.
This is a rough approximation, but it should be readily apparent that the only clause that could allow the existence of the EPA is the commerce clause, which reads "To regulate commerce with foreign nations, and among the several states, and with the Indian tribes." It is almost certain, therefore, that this debate will center around the commerce clause (Amendment X prohibits the government from exercising any powers other than those listed in the constitution); it is equally certain that the debate will revolve around one word: REGULATE. That word, as we use it today, would certainly allow for the existence of an EPA-like administrative body; however, the word today is not equivalent to the meaning of the word at the time the constitution was written. In that period, regulate simply meant to keep regular or to keep well-ordered. For example, the second amendment, commonly known as promoting the right to bear arms, uses the phrase 'a well-regulated militia.' This certainly cannot mean a militia subject to some sort of administrative bureaucracy; rather, it is explained by one of the powers granted in Article 1, Section 8, "to provide for organizing, arming, and disciplining the militia. In other words, remove obstacles to the efficient functioning of the militia. With regard to commerce, Federalist No. XLII states "The powers included in the third class are those which provide for the harmony and proper intercourse among the states....to regulate commerce..." Madison goes on to say that the want of a power to regulate commerce has resulted in opportunistic taxes of coastal states upon those states forced to conduct commerce through their ports. In Federalist No. XXII, Hamilton says, "The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others; and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the confederacy." Although the space is insufficient to reproduce entire Federalists, numbers 22 and 41-46 detail the powers given to the government and explain why these powers are both necessary and limited. Examples are tendered of other confederacies whose national government is incapable of restraining excessive taxation and impediments to commerce between the several provinces. It is clear, therefore, that the Founders did not intend this clause to allow what we would call regulation; but rather to prevent a lack of superintendence from destroying the Union. A very clear case is in the emancipation controversy, in which the policies of the southern states in claiming escaped slaves as property led to conflicts with northern abolitionists who, acting pursuant to their own state laws or regulations, sought to harbor the fugitives. The federal government, then, is authorized by the commerce clause to make regular the various laws in an attempt to prevent discord. Since the EPA does not seek to improve and make regular the commerce of the states, it does not fall under the provisions of the commerce clause and is therefore unconstitutional.
Textually speaking, one power of congress described in the constitution is "To make Rules for the Government and Regulation of the land and naval Forces." "The land" does not refer to government-owned land but instead to all land in America. Thus, the EPA is constitutional under this clause.
Also, another clause in the constitution states that "Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States"
The EPA does provide for the general welfare of the United States by ensuring that people do not ruin the environment or make it uninhabitable. Without the EPA, nuclear bombs could be tested on private property, which would harm the general welfare of the country. Also, high quantities of pollutants could be released into the air, harming the health of everyone in the country. Thus, regulation of the environment is constitutional because it provides for the general welfare of the united states.
The elastic clause also supports the EPA: Congress shall have the power "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." So, as long as the regulation of the environment would help Congress achieve any of its other goals, then it is constitutional.
Regarding the commerce clause, the environment does in fact impact commerce.
My opponent said: "it is equally certain that the debate will revolve around one word: REGULATE. That word, as we use it today, would certainly allow for the existence of an EPA-like administrative body; however, the word today is not equivalent to the meaning of the word at the time the constitution was written. In that period, regulate simply meant to keep regular or to keep well-ordered."
However, I am not arguing that the modern form of the EPA is constitutional but instead that "an agency regulating (setting standards for) the actions of the people with regards to the environment" is constitutional. In this context, "setting standards for" appears synonymous with "keep[ing] regular or [..] well-ordered." If standards are set, then interactions will be regular and well-ordered; similarly, if standards are not set, then interactions will not be regular or well-ordered. Under this interpretation of regulate, an environmental protection agency is constitutional as explained in my opponent's argument.
"This certainly cannot mean a militia subject to some sort of administrative bureaucracy; rather, it is explained by one of the powers granted in Article 1, Section 8, "to provide for organizing, arming, and disciplining the militia. In other words, remove obstacles to the efficient functioning of the militia. "
Disciplining the militia necessarily requires some form of administrative bureaucracy that dictates what the militia can and cannot do. In general, regulation requires an administrative bureaucracy.
"It is clear, therefore, that the Founders did not intend this clause to allow what we would call regulation; but rather to prevent a lack of superintendence from destroying the Union. [...] Since the EPA does not seek to improve and make regular the commerce of the states, it does not fall under the provisions of the commerce clause and is therefore unconstitutional."
Preventing a lack of superintendence from destroying the Union requires regulation. This is what the elastic clause is for, to allow regulation that are not explicitly mentioned in the constitution but are necessary and proper to be enacted. The EPA does seek to improve and make regular the commerce of the states - without regulation, commerce could be disrupted by environmental catastrophes caused by harmful human interactions with the environment.
The Regulation of Land and Naval Forces clearly refers to the army and navy. Land and naval both clearly modify 'forces,' this only refers to the army, obviously not to the actual land.
The argument that the phrase 'provide for the common defense and general welfare' constitutes a separate power is refuted by the Founders themselves. In Federalist No. XLII, Madison says, "It has been urged and echoed, that the power 'to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,' amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction." Madison, then, actually laughs at the notion that this is a separate power. He goes on, "For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power. Nothing is more natural nor common, than first to use a general phrase, and then to explain and qualify it by a recital of particulars." Therefore, the power to tax and spend for the general welfare is not a separate power but is, in fact, limited to the other powers explicitly listed in Article 1, Section 8.
As to the necessary and proper (elastic) clause, Federalist No. XLIV presents a comprehensive rebuttal of this concept. The space is not here sufficient to permit me to copy the entire argument, but the gist of Madison's contention is that this clause is intended only to allow Congress to pass laws specifically related to the enacting of the delegated powers. For example, under this clause the Congress can pass a law to establish a patent system with specific properties because the Constitution tells Congress that it may create a patent system, although it does not specify the particular form and functions of that patent system. What is clear, however, is that this power was clearly not intended to be a separate power but merely to allow effective legislation on those powers expressly delegated. He said, "No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included." This is clearly not a separate power; it is merely intended to give efficacy to the enactment of the powers delegated to the government.
The commerce clause: It should be clear enough from my previous arguments that this clause does not authorize what we now call regulation. This clause was intended to apply only to the states as entities, not to private corporations of individuals. Its authority lay in preventing states from impeding the commerce of other states; it had no power to force businesses or citizens to act in a certain way. This concept is very clear in everything the founders said about the commerce clause: they intended it to remove impediments to commerce, not erect barriers themselves.
My opponent said, "Preventing a lack of superintendence from destroying the Union requires regulation." In what case has an environmental issue come close to destroying the Union? Environmental Protection agencies, in any form, would only erect impediments to commerce and never preserve the Union. Their existence is contrary to the philosophy of the founders and to the text of the document itself.
0. My opponent has conceded that some environmental regulation is constitutional:
"REGULATE [...] would certainly allow for the existence of an EPA-like administrative body. [...] In that period, regulate simply meant to keep regular or to keep well-ordered. [...] An agency regulating (setting standards for) the actions of the people with regards to the environment" is constitutional. In this context, "setting standards for" appears synonymous with "keep[ing] regular or [..] well-ordered." If standards are set, then interactions will be regular and well-ordered; similarly, if standards are not set, then interactions will not be regular or well-ordered. Under this interpretation of regulate, an environmental protection agency is constitutional as explained in my opponent's argument."
After my opponent proposed an alternate definition for regulate, I showed that an EPA-like administrative body would be constitutional under this definition, using his description of such an administrative body.
My opponent had a chance last round to refute this argument but did not. Now that it is conceded, voters should vote Con based upon this argument and not allow my opponent to respond to it in the last round of the debate, out of fairness.
1. "The government has the power to [...] have authority over lands owned by the government"
My opponent has conceded that the government can environmentally regulate lands owned by government. According to article 4 section 3, "Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." Government has authority over all the land in America, not just federal property, to make important environmental regulations.
2. In 1803, the Louisiana Purchase was considered constitutional by the House, President Jefferson, and Secretary of State Madison. Its constitutionality was justified using the general welfare clause - buying land is not a designated power of Congress. Back then, there existed disagreement about the interpretation of various clauses. Still, the opinion of a single founder ought be less valued than that of multiple, making my interpretation preferable.
3. Extend the argument that the elastic clause "is intended [...] to allow Congress to pass laws [...] related to the enacting of the delegated powers." Under it, Congress can ban the use of CFCs that contribute to ozone depletion, disrupt commerce, and harm the general welfare of the nation. Also, the poisoning/pollution of rivers could be outlawed on the basis that it deprives others of the "right to life" guaranteed in the constitution, is detrimental to the general welfare of the populace, interferes with commerce, and presents "obstacles to the efficient functioning of the militia."
4. Regarding the commerce clause, my opponent said "this clause was intended to apply only to the states as entities." Environmental legislation regarding the poisoning water is necessary to prevent one state from poisoning the water of another and to "remove impediments to commerce."
5. Global warming is an environmental issue resulting in tensions between Northern and Southern states. Also, it is possible for an environmental catastrophe (such as poisoned water) to destroy the Union.
0. Pro conceded that environmental regulation matches his definition of regulate - automatic win for Con.
1. Government has authority over all land, not just federal land.
2. Congress has the power to "provide for the common defense and general welfare" which means exactly what it sounds like.
3. The elastic clause allows Congress to regulate the poisoning of rivers.
4. The commerce clause allows Congress to regulate the poisoning of rivers.
5. The poisoning of rivers in swing states could theoretically come close to destroying the Union.
If any of the five arguments is convincing, then Con wins the debate. Even if none are, Con still wins by default because of argument zero.
1. It is painfully obvious that the states are not land 'owned by the government,' they are the sovereign states that ratified the constitution. The states do not belong to the United States, they therefore do not fall under this clause. States are not 'territory or property belonging to the United States,' they ARE the United States!
2. The Louisiana Purchase was constitutional, NOT under the general welfare clause, but under the power of the executive to make treaties with foreign nations and the Senate to ratify them.
3. None of your arguments fall under an actual specific power of Congress or the executive, so while they sound exemplary they are empty and powerless. Environmental regulations do not protect the right to life, they obviously do not present obstacles to the efficient functioning of the militia, and they do not prevent impediments to commerce. A polluted river does not prevent shipping on that river, but an unconstitutional regulation is what DOES impede commerce.
0. Environmental regulations do NOT meet criteria because they affect individuals, not just states.
1. The states are not property.
2. General welfare clause is not a separate power (Federalist 41, I believe)
3. Elastic clause is not a separate power
4 and 5. No.
In addition, these regulations bypass the federalist system itself, in which most power is reserved in the states with the federal government only acting to represent the whole of the union (dealing with foreign nations) and preserving the Union. Regulations at a federal level are unconstitutional, (at a state level they are allowable) as the founders made very clear.
00 forfeited this round.
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