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Is administration trying to stack the D.C. Circuit?

SURE,  President Barack Obama's Environmental Protection Agency administrator has recently disclaimed a "war on coal."  But actions speak louder than words.

Take, for example, the recent U.S. EPA regulation that puts such strict limits on coal-fired power plants that no commercially-available technology could possibly meet them.  

It doesn't technically outlaw new coal-fired plants, but that will be its obvious effect.

U.S. Sen. Joe Manchin has criticized this unprecedented attempt to "force an industry to do something that is technologically impossible," warning that the new regulations would "have devastating impacts to the coal industry and our economy" and joining a Senate resolution protesting the regulation.  

But the key vote to push back on the president's attacks on the coal industry won't be on an environmental law. It will be about judges.

The new EPA regulations will almost certainly be challenged in the courts.  

Seventeen Attorneys General, including West Virginia Attorney General Patrick Morrisey, have already alerted the EPA that what it is attempting to do is illegal.  

The regulations go beyond the regulatory actions authorized by the Clean Air Act, and circumvent our Constitution's system of checks and balances because they are so harsh they would never have been legislated outright by members of Congress.

A key actor in this fight is the Court of Appeals for the D.C. Circuit — the court that hears challenges to administrative agencies like the EPA.  

That court in recent years has held the line against several power grabs by the Obama administration, including in the environmental arena.  

Now, President Obama is trying to change the game.  

Although the D.C. Circuit is currently evenly split between Republicans and Democrats, the president has nominated three new judges in an effort to tilt the scales of justice in his favor.   

President Obama wants nothing more than to obscure what's at stake in the battle over the D.C. Circuit, and argue that his appointments are just filling empty seats on that court.  

Move along, nothing to see here!  

However, the D.C. Circuit doesn't need new judges.  

It is the most underworked federal appellate court in the country, and their workload is dropping by the year. This is true across virtually every statistical measure, from total appeals filed, to total appeals completed or appeals per active judge.

And, as the D.C. Circuit's chief judge has explained, when you take into account work by the court's senior judges it has the equivalent of 11.25 full-time judges, even more than the 11 seats officially allocated to it.

What's really going on is an attempt to insulate the president's executive and regulatory actions from court review.  

New York Sen. Chuck Schumer unmasked the plan earlier this year at a fundraising dinner.  

He catalogued decisions of the D.C. Circuit that he disagreed with, including one striking down the EPA's Cross-State Air Pollution Rule — a costly rule that would have shuttered many power plants and sent energy prices through the roof.  

He then vowed to his donors: "We will fill up the D.C. Circuit one way or another."  

If President Obama gets his way, by the time the D.C. Circuit hears a challenge to the anti-coal regulations, he will have filled over a third of the court with his handpicked judges.

Sen. Manchin has promised to "fight EPA overreach," warning that in the wake of the new regulations, "American jobs will be lost, electricity prices will soar and economic uncertainty will grow."  

But will he have the courage to stand up for his constituents, even if that means standing up to his own party's president?  Or will he go along with Obama's attempt to fill the D.C. Circuit with judges he can count on to rubberstamp his regulatory agenda?

The president's three D.C. Circuit nominees will soon go to the Senate floor for a final confirmation vote. I hope Sen. Manchin will stand up for West Virginia's coal industry and stop President Obama's court-packing plan.

Severino is chief counsel to the Judicial Crisis Network.


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