Black Swan Reconfiguration: Legal Separation of American Powers

Abstract

In a legal Black Swan event, the Supreme Court, in an unprecedented action, stayed and blocked implementation of the Obama Administration’s core domestic and international agenda — years before a legal challenge to the regulation would ever reach the highest Court. This decision underscores major changes in the legal separation of U.S. governmental powers, and alters long-standing Chevron deference to the executive branch.

The Clean Power Plan served as the foundation of the Obama Administration’s goal to reduce climate-warming gas emissions from power plants. It provided the legal mortar cementing the U.S. commitment to the 2015 International Paris Agreement on climate change. This plan was a controversial exercise of executive action in the second Obama term that wove together domestic and international legal policy. With a 5–4 split, the Supreme Court decision peremptorily stayed the Plan — years before the lower court could rule on a contested challenge or advance to it—and the court of appeals froze. Raising the stakes, the Trump Administration is now recalculating the costs and benefits of the Plan in order to change American law.

These are pending disputes of legal first impression, fundamentally reshaping constitutional law. Rules of law have changed due to a combination of the unprecedented Supreme Court stay of executive action — years before any challenge would reach it on appeal — and the Trump Administration’s efforts to recalibrate the costs and benefits of the regulations. This article analyzes in detail the legal position of each side and the impacts of this long-pending, and significant constitutional confrontation, transfiguring domestic and international law.