Vanderbilt Law Review


William Marks

First Page



A constitutional crisis is at hand. It is 2017, and a new President of the United States has taken office.' The new President generally opposes environmental regulations and accordingly nominated a candidate for Administrator of the Environmental Protection Agency ("EPA") with a deregulatory track record. The Senate, however, stood in the way: a proenvironment party holds the majority and threatened to filibuster. New presidents in this situation typically withdraw their nominations to avoid political embarrassment. But this time was different. In a forceful display of executive authority, the President unilaterally installed the nominee as the EPA Administrator. True, this action almost certainly violates the Appointments Clause, which requires the Senate to confirm any "Officer of the United States." The Administrator nevertheless wasted no time and immediately began the rulemaking process to increase the maximum pollutant level that factories may discharge into waterways. Once the Administrator promulgated the new rule, factories across the country began releasing higher levels of potentially toxic chemicals into rivers, streams, and groundwater. Communities across the nation soon reported massive fish kills. As a result, the freshwater fishing industry's nets are now coming up empty.