Congress ducks out of the CAFE

Published May 1, 2002

For a libertarian, what could be less principled than forcing new Corporate Average Fuel Economy (CAFE) standards onto automakers and auto consumers? For a liberal, what could be less principled than an energy policy without strict new CAFE standards?

Leave it to Congress to find a compromise that fails everyone’s principles, putting CAFE standards into unaccountable bureaucratic hands while at the same time fending off legislative consideration of stiffer standards.

Insulting our intelligence

John Kerry (D-Massachusetts) abandoned his proposal to raise average fuel economy of new cars and light trucks from 24 mpg to 36 mpg by 2015 after a lopsided, 68 to 32, loss.

The Senator observed that the vote for the compromise was “insulting to the intelligence of Americans who know they want more efficient cars.” His statement constitutes its own assault on the American intellect … for if Americans really wanted more efficient cars, the government would not need to legislate them.

But it must be conceded that Kerry and his crowd are the ones who stuck to their principles, however bankrupt they might be. The amendment adopted by the Senate’s Republicans, joined by rust belt Democrats, requires the Secretary of Transportation to set CAFE standards at “maximum feasible levels.” Does that sound like less government to you?

Ironically, both sides in this debate believe technology can be forced to reach beyond what is currently practical … so why settle for what is simply “feasible”? Congress should have voted up or down on the true policy question at issue: Whether the market or the government is a more efficient mechanism for technology forcing.

America will not rise or fall on the adoption or rejection of increased CAFE standards. But Congress’s failure to answer the question is more of a threat to American governance and the freedom for which it stands than either resolution might have been.

The dangers of passing the buck

In the American system of government, Congress makes domestic policy. When it passes the buck to the executive branch by claiming to favor “feasible” mileage standards without saying what they are, the separation of powers crafted by the founding fathers suffers yet one more in a long series of insults. Taken together, these instances of sorry statesmanship may be the straws that break the camel’s back.

The theory of the founders was that the branches of government would, by human nature, tenaciously defend their Constitutional powers. Woven of carefully structured countervailing jurisdictions, the Constitution created a relatively inefficient mechanism for lawmaking that would protect individual freedom by limiting the ability of government to enact mandates upon the citizenry and by encouraging one branch to protect individual freedoms encroached on by another.

In a political parallel to baseball’s infamous Black Sox scandal—which introduced the seemingly contradictory notion that a team could be rewarded for giving up its drive to win—Congress has realized that tough policy decisions can be avoided simply by sloughing them off onto the administration and blaming bureaucrats for the results.

Stakeholders take a pass

The logical branch of government to break up such a conspiracy, the judiciary, took a pass on the opportunity of the century when the Supreme Court declined, in the case of American Trucking v. Browner, to invalidate a law giving the EPA administrator authority to decide what level of protection for air quality should be instituted. The high Court was not asked to set the level, but rather only to recognize the job fell to Congress.

Industry did itself a disservice in the case by arguing they didn’t really mind EPA making the decision, but wanted the agency to consider costs more systematically. Cost-benefit decisions, whether regarding air quality or CAFE standards, are inherently subjective and are the providence of Congress. The Court, for its part, used the plaintiffs’ hypocritical strategy to dodge its difficult but necessary role: preventing Congress from passing the lawmaking buck.

Only one justice, Clarence Thomas, had the courage even to suggest that he wanted to take the issue straight on. Perhaps Congress’s latest duck of responsibility will eventually give him an opportunity to do so. Whichever side is dissatisfied with the CAFE standards eventually adopted will surely be headed to court.

Where the President will stand

While bureaucracies aren’t called the fourth branch of government for nothing, the President does put a stamp on certain high-profile regulations. One might reasonably expect the Bush administration to move cautiously in this realm, giving serious consideration to “economic practicability” and “the effects of compliance on employment in the United States,” two factors among a baker’s dozen cited by Congress to “guide” the Secretary.

But if Al Gore were to stage a comeback in 2004, one could expect an opposite, if equally one-sided, analysis focusing on such other factors as “the need of the United States to conserve energy” and “the effects of increased fuel economy on air quality.”

That such a dramatic difference in results could be expected depending upon who sits in the executive office makes clear Congress has not resolved the CAFE standard at all, but has merely decided not to decide.

Brian Bishop is director of Rhode Island WiseUse and Rhode Island state director for Alliance for America.

For more information …

on the Corporate Average Fuel Economy debate, visit The Heartland’s “mini-suite” on the issue at