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Dem senators call for Biden ‘unchained’ on climate executive action, despite recent Supreme Court EPA ruling

Sens. Sheldon Whitehouse and Jeff Merkley Monday said it’s time for Biden to take massive, unilateral executive actions on climate change, even if it’s likely the Supreme Court will strike down at least some of them as unconstitutional. 

The senators said now is the time for Biden to make those moves because Sen. Joe Manchin, D-W.Va., last week rejected including any legislation on climate change in a reconciliation bill Democrats want to pass this month. 

With a 50-50 Senate, Democrats need Manchin’s assent for anything to pass on party lines – even when using the reconciliation process to avoid the filibuster.

“We have a president who campaigned on climate, who has been chained to the legislative process, thinking about his past as a senator,” Merkley, D-Ore., said. “Now he’s unchained, and he has to go.”


“President Biden is an optimist and a trusting soul and a very patient man,” Whitehouse, D-R.I., said. “That trust has not been rewarded. I believe, I hope, that that patience is exhausted.”

Whitehouse added that some Senate Democrats, now refusing to count on anything they can negotiate with Manchin, are “eager to see really broad, robust, rapid executive action.”

But their calls for Biden to take major action come as the Supreme Court just dealt the authority of the Environmental Protection Agency (EPA) a major loss. In the case West Virginia v. EPA, the justices ruled that the agency can’t pass sweeping regulations that could overhaul entire industries without additional congressional approval.

“A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body,” Chief Justice John Roberts said in the Court’s opinion.

Sens. Sheldon Whitehouse, D-R.I., and Jeff Merkley, D-Ore., Monday said the fact Congress cannot pass a climate package is an embarrassment to the United States on a global scale. 


Whitehouse and Merkely acknowledged that the ruling will present a challenge. Whitehouse called it “evil,” and Merkley accused the court of trying to act like a “super-legislature.”

“The court is laying out a doctrine which they can employ to strike down whatever regulations they want,” Merkley said, referring to the “major questions doctrine,” which the court ruled under on the case. 

“We have to live with that, but we cannot sit still for fear of what the court might do,” he added. “Let’s pursue every option and if a few of them are struck down, they’re struck down, we’ll double down on the rest.” 

Whitehouse said he’s suggested several options in conversations with the White House. Asked whether those could be upheld in the Supreme Court, he said, “the vast bulk of them could, I believe.”

We cannot sit still for fear of what the court might do. Let’s pursue every option, if a few of them are struck down, they’re struck down. We’ll double down on the rest.

— Sen. Jeff Merkley, D-Ore.

For his part, Manchin defended his decision to reject not just climate and energy provisions but also tax increases in Democrats’ reconciliation bill due to massive inflation. 

“Political headlines are of no value to the millions of Americans struggling to afford groceries and gas as inflation soars to 9.1%,” Manchin spokesperson Sam Runyon said last week. “Senator Manchin believes it’s time for leaders to put political agendas aside, reevaluate and adjust to the economic realities the country faces to avoid taking steps that add fuel to the inflation fire.”

Manchin also is not taking the possibility of some climate action off the table. He said on West Virginia’s MetroNews Talkline with Hoppy Kercheval that he could be open to passing climate and energy elements of reconciliation later this year if inflation appears to be slowing. 

Democrat senators are calling on President Biden to take massive executive action on the climate, even if the Supreme Court will strike down some of it.

But Merkley and Whitehouse don’t want to count on that. Whitehouse said among the immediate steps Biden can take is for the EPA to mandate carbon capture. Merkley said the president could declare the climate an emergency under the National Emergency Act former President Donald Trump used to redirect money to the border wall. 

Doing so is critical, Merkley said, because it’s not clear when Democrats may next hold a trifecta in the House, Senate and White House to pass a climate bill. 

“Am I concerned that it will be a decade before we have a climate majority? I am damn concerned about that,” he said. “We have to use every tool at our disposal, and certainly the tool right now is bold, intense executive action.”

Fox News’ Ronn Blitzer contributed to this report.

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