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Special Report

All-Star Panel: EPA trying to get around Congress?

This is a rush transcript from "Special Report," February 24, 2014. This copy may not be in its final form and may be updated.

(BEGIN VIDEO CLIP)       

SHANNON GOESSLING, SOUTHEASTERN LEGAL FOUNDATION: No matter how any American feels about global warming or manmade global warming, every American should be very concerned when an executive agency exceeds their authority. And that's really what this case is about. It's about an administrative agency deciding there is a problem and addressing it without any bounds.        

DOUG KENDALL, CONSTITUTIONAL ACCOUNTABILITY CENTER: The EPA chose to try to implement the broad protective goals of the statute by bending a little bit on the implementation side. And I think that's a choice that agencies have to be able to make.

(END VIDEO CLIP)

BRET BAIER, ANCHOR: The Supreme Court hearing arguments, basically six cases in one, all dealing with regulatory powers of the administration. This one dealt with the EPA and whether it could literally rewrite federal statute. So it would meet the EPA's regulatory aims for greenhouse gasses, rewriting what Congress did.

Just a quick glimpse -- Justice Alito asking the solicitor general this, "Now, in the entire history of the federal regulation, what is the best example you can give us of an agency doing something like that, where it has taken a statute with numbers and crossed them out and written in the numbers that it likes." And Solicitor General Verrilli saying, "Obviously, I wouldn't characterize it quite that way. I don't have a case that's exactly on point." And that is how it is in the Supreme Court, a lot of give and take.

We're back with the panel. Steve, this is a huge, huge deal when it comes to the Constitution and the whole pen and a phone deal.

STEVE HAYES, SENIOR WRITER, THE WEEKLY STANDARD: No, it is a huge deal. The reason that Donald really couldn't cite a case is because no such case actually exists. You had the lawyer for the plaintiffs today saying that this may be in fact the biggest constitutional back and forth between the legislative and the executive branch in recent memory. And I think she is right about that. Essentially, what the EPA wants to do is, in fact, rewrite the 1970 Clean Air Act so that it can regulate greenhouse gases to a level that would allow it to avoid the absurdity of having to -- having to have every household or every different church, every institution get permits in order to be able to pollute to a certain level. That was the way that the law was written in 1970. You had restrictions on certain things like carbon monoxide, other obvious pollutants, then greenhouse gases were added. And because greenhouse gases aren't nearly as problematic, the administration knows that to restrict them to that level is absurd. It wouldn't make any sense.

So they basically, as Justice Alito suggested, scratched out the old numbers and added new numbers so that they could avoid this absurdity. But where do they get that authority to do that? That's what is at the center of this case.

BAIER: It really, Elise, opens the whole door to regulatory action overall. We talk about the HHS and their regulatory action on ObamaCare and all of the things that are going on with 19,000-plus regulations that change what that law and how it's written. So you can imagine if this case somehow opens the door, it could possibly be precedent setting for other cases.

ELISE VIEBECK, THE HILL: It could be. And certainly all of these criticisms are very reminiscent of what Republicans have been staying about the ObamaCare rollout, which is by pushing all these deadlines, by rewriting when certain provisions are supposed to come into effect, the Obama administration is exceeding its authority.

But at the same time court watchers expect this to be a fairly narrow decision. And there is no guarantee that someone like Anthony Kennedy will reverse themselves effectively and knock down a previous decision that allowed the EPA to regulate greenhouse gases. So we're really not sure here. And this goes to the heart of what people would say is the weakness in those claims against the administration on this executive discretion because we are not sure it can really hold up in court, these arguments.

BAIER: Jason?

JASON RILEY, WALL STREET JOURNAL: And the reason that the EPA wants to re-rite these rules -- because Congress won't. Congress won't do it. The administration can't get them to rewrite the Clean Air Act or to it adjust it. And they couldn't get cap and trade passed. And so they are resorting to yet another end run around Congress. You mentioned ObamaCare but it's not just ObamaCare. It's welfare-to-work rules. It's no child left behind. It's immigration laws. It's anywhere this administration can't get things done legislatively it turns to administrative action.

BAIER: But it's not just this administration. Other administrations have gone to executive action before.

RILEY: Well, what this administration is trying to do with this law, however, is quite serious. In 2007, the Supreme Court said yes, you can regulate carbon as a pollutant. But they want to selectively regulate it as a pollutant, and apply the regulation where it's politically popular to these plants and things like that, but not to schools, and hospitals, and so forth what will be unpopular. All the plants are saying here is that if you're going to apply the law, apply it evenly. Subject everyone to these onerous regulations. I don't think that's unreasonable.

BAIER: We will follow this one. It's a big deal.

That's it for the panel. But stay tuned to seat kind of ending everyone always dreams of.

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