When Mitch McConnell sent his recent letter to the nation’s governors urging them to ignore the White House’s upcoming clean-power rules, it was striking for two reasons. First, as the headlines pointed out, it’s a dramatic moment when a congressional leader openly tries to rally the states against a new federal policy. And second, McConnell’s legal justification relies on none other than Laurence Tribe—Barack Obama’s former law professor, and one of the nation’s top liberal law scholars—to argue that the upcoming EPA rules are unconstitutional.

As a matter of Kentucky politics, McConnell’s move makes a certain sense. The American power industry is watching the EPA’s carbon-reduction scheme with anxiety. Expected to arrive in final form this summer, the rules will set standards for greenhouse gas emissions from coal-burning plants for the first time. It’s not surprising that a Senate majority leader from a coal state would lead the fight against a new policy that he has characterized as devastating for his home industry. As a matter of national politics McConnell’s step is shrewd, too: He is using this issue to unite Republicans against one of the President’s signature initiatives.

Legally, though, it’s his second move that is more interesting—and potentially more dangerous for the governors who heed it. With Larry Tribe providing the legal backing, McConnell claims the President’s plan is flagrantly unconstitutional. Having Tribe on his side is a coup for the Senate leader. Tribe was an enthusiastic supporter of Obama’s campaigns for President, worked at the Department of Justice during the first term and has been often described as the President’s “mentor.” Which is to say: if you are looking for legal gravitas, and you want to stick it to the President, Tribe is a huge “get.”

But is he right? Larry Tribe is a top constitutional scholar, and a Harvard colleague we greatly respect, but decades of precedent and a close look at the rule suggest he’s completely wrong here.

Tribe’s argument—which he has outlined in comments to the EPA, congressional testimony and an opinion piece in the Wall Street Journal—is that the EPA rule would amount to an unlawful “taking” of the coal industry’s private property, trample on states’ rights, and violate the separation of powers. Tribe spares no rhetorical expense here: he likens the EPA’s rule—intended to cut carbon pollution by up to 30% by 2030—to President Truman’s seizing of the steel mills during the Korean War and President Lincoln’s suspension of habeas corpus during the Civil War. The President’s Clean Power Plan, he says, is “burning the Constitution.”

Some of the theatricality of Tribe’s language makes more sense when you realize that he’s a paid counsel for one side here. Peabody Coal hired him to zealously represent its interests in federal court, and to argue the coal industry’s case in any other forum that might advance its cause, as he has done in Congress and the media.

But Tribe is also a serious constitutional law scholar, and his arguments deserve to be addressed seriously.

Although the EPA is still finalizing the rule, we already know how it is likely to work: the EPA will set carbon intensity targets for each state, and the states can meet these targets using whatever measures they prefer. The targets vary from state to state, depending on their current energy mix; some coal heavy states, including Mitch McConnell’s state of Kentucky, have far less ambitious targets than states with a cleaner energy supply. If states decline to draft their own reduction plans and file them with the EPA, the agency will draft a federal implementation plan itself.

In his legal attack on the rule, Tribe first claims that the new rule would be a form of “taking,” barred by the Fifth Amendment—that the government is essentially seizing the property of power and coal companies without compensation. This is because such regulation, in his words, “drastically undercuts investment-backed expectations that amount to property interests.”

Tribe also argues that the rule would put a “gun to the head” of the states in violation of the 10th Amendment, which prohibits the federal government from, as the Supreme Court terms it, “commandeering” state institutions for federal purposes. Finally, he argues that the rule would violate separation of powers by usurping the role of both Congress and the judiciary.

The takings argument, for one, has no foundation. In 200 years of precedent, there is not a shred of support for Tribe’s notion that it can be a “taking” when the government regulates industry to prevent harms to the public health or welfare, by, for example, emitting dangerous pollution, like greenhouse gases. The Supreme Court has repeatedly made clear that the Takings Clause does not shield business investments from future regulation, even when that regulation cuts sharply into their profits. Tribe is right that the Constitution protects “reasonable investment-backed expectations,” but there is simply no reasonable expectation to profit forever from activities that are proven to harm public health and welfare, as the Court has repeatedly said. And the notion that this rule regulates coal out of existence, as both McConnell and Tribe have implied, is false. The EPA projects that coal will still provide over 30% of our electricity in 2030. The independent grid manager for the mid-Atlantic, known as PJM, also modeled a dozen compliance scenarios and in none of them is coal “phased out.”

And what of the 10th Amendment argument? It is a non-starter too. The 10th Amendment protects the states from being forced to use their institutions to implement federal requirements. But the EPA’s federal implementation plan will require only that power plants meet their targets. It will not force the states themselves to do anything. The EPA has no legal authority—none—to force the states to file plans. The agency cannot cut off highway funds, or do any of the other draconian things that serve as the premise of Professor Tribe’s 10th Amendment argument. The proposed rule allows States to step aside and leave the federal government to implement its regulation without any help. By providing states such a choice, the proposal does not “commandeer” the states, and so it cannot violate the 10th Amendment.

As for the separation of powers arguments, we will let Tribe’s analogies speak for themselves. No one is seizing control of the nation’s coal mines and power plants, or suspending habeas corpus. The EPA’s rule here is a pollution rule, which, like all pollution rules, will require industry to invest in emission reduction strategies. The EPA is adopting it under a law that Congress delegated to the agency to administer, and which courts have said the agency is entitled to interpret as long as it reads ambiguous provisions reasonably. People can debate the reasonableness of the rule, but to equate it with these two genuine constitutional crises is absurd.

All that said, the rule is not a legal slam-dunk, and there are credible non-constitutional law arguments against the EPA’s view. But the real question is much more pedestrian: whether the EPA has reasonably interpreted its authority to set “performance standards” for existing power plants under the Act. We think the agency has a strong argument to support its interpretation, and an entirely plausible case for deference from the courts, but it is possible judges will disagree.

The challenges to the Clean Power Plan have begun already, even though it is not yet final: Next month, Tribe will argue the case for industry in the D.C. Circuit Court of Appeals. The three-judge panel assigned to this case includes a leading conservative jurist, Judge Brett Kavanaugh, who has voted against the EPA in a series of Clean Air Act cases in recent years. Yet the panel may still reject the challenge out of hand: It is virtually unprecedented for a court to review a rule that is not yet even final and legally effective.

Even if the government wins the first outing next month and convinces the court that reviewing this proposal now is premature, the government would still need to defend the rule once it is final. This legal battle will play out over the next year, at least, and likely for several more. So any declarations of victory by either side next month should be taken with a very large grain of salt.

McConnell is absolutely correct about one thing: States do have a right to opt out of filing compliance plans, just as they had a right not to set up insurance exchanges under the Affordable Care Act. Once the rule comes into force, states that file plans can make the granular choices about which facilities will retire when, and which investments they want to make to generate cleaner energy. They can design carbon-trading schemes, and join with other states to keep costs down.

If states “just say no,” as McConnell urges, then they will trigger a federal plan, which by contrast will likely be a “cookie-cutter” approach not tailored to each state. In that case the biggest losers will likely be in the utility industry, which has the most to gain from states being in charge of their own destiny. Power plant owners would rather deal with states than the federal government, and they stand to benefit the most from the more cost-effective solutions that only states can adopt.

The Constitution is the most powerful document a legal scholar can invoke, and Tribe’s reputation is undeniably impressive. But the EPA rule is not unconstitutional, so his arguments simply can’t be the basis for following McConnell’s advice . The governors face a harder question: whether to file a plan or not, based on what is in their own best interests. Opting out may be self-defeating—states might give up the flexibility to make the requisite pollution cuts their way - but the choice is entirely up to them. And whatever McConnell and Tribe claim, when governors make the decision, they need to understand the real stakes of their choice.