Update: The House has proposed passage of the REINS Act. After reviewing the entire text, I am satisfied that it is the solution needed to restore the Constitutional balance between Congress and the Executive on this most critical issue.
In a dictatorship, laws are passed by unelected government bureaucrats without reference to the will of the people, nor subject to review by elected representatives. So what's the difference between that and our form of government? Today, not so much.
Our Founding fathers created by the Constitution a republic. In Art. I, Sec. I of the Constitution, they vested all legislative powers of our republic in Congress. The Founders further provided a framework that allowed Congress to, at any time, review prior law and, if appropriate, vote to repeal it. And most importantly, the Founding Fathers provided that each Congressman voting for or against the laws was directly subject to the ballot box. We no longer live in that world.
Today, Congress does not solely wield the legislative power of our nation. Indeed, Congress is very far from even being the most important source of our legislation. Our nation now most clearly resembles the socialist regulatory bureaucracy of the EU, where mountains of regulations with the full force and effect of law are passed by unelected bureacrats. In our nation today, individuals, businesses, and private and public organizations can be fined, sanctioned, forced to close, and jailed for violating federal regulations that have never been subject to a vote by our elected representatives, nor signed into law by the President. The genius of our Constitutional system of checks and balances is wholly obliterated in the tyranny of our modern the regulatory bureaucracy.
This is a grave issue under Obama, but it is also much bigger than just his wholesale abuse of the regulatory bureaucracy. The growth and dictatorial power of the regulatory bureaucracy is a systemic toxin overlaid upon our government by FDR, and its substantial growth now threatens to wholly undermine our form of government, taking our most important legislation completely outside the purview of our elected representatives.
This has reached crisis proportions under Obama and his administration, who have utterly run amok, passing mountains of regulations drastically effecting our nation, all of which have bypassed Congress.
Under Obama, the size of the Federal Register, wherein all new regulations and modifications to existing regulations are published, grew from 68,000 pages in 2009 to over 82,000 pages in 2011. And Obama is just warming up. A tsunami of new regulations wait in the wings from Obamacare, Dodd-Frank, the FCC and the EPA, none of which will ever be voted upon by a single elected representative. This from Heritage:
During the first three years of the Obama Administration, 106 new major federal regulations added more than $46 billion per year in new costs for Americans. This is almost four times the number—and more than five times the cost—of the major regulations issued by George W. Bush during his first three years. Hundreds more regulations are winding through the rulemaking pipeline as a consequence of the Dodd–Frank financial-regulation law, the Patient Protection and Affordable Care Act, and the Environmental Protection Agency’s global warming crusade, threatening to further weaken an anemic economy and job creation.
The most important consideration as regards these regulations is that, almost to a virtual certainty, none of the major regulations promulgated under Obama could ever have passed Congress to become law - even during the first two years of Obama's administration when Democrats controlled Congress. A partial list of the extra-constitutional regulations and executive actions of Obama's regulatory agencies includes:
- The EPA's decision to regulate carbon dioxide as a pollutant, despite lack of any Congressional authority and in the face of Congress's refusal to pass the proposed energy bill which would in fact have authorized such regulation.
- The EPA's promulgation of the Boiler MACT rules that will cost our nation an estimated $20 billion to reduce certain pollutants emitted from boilers. The regulation was made without reference to health risk thresholds for the pollutants.
- The EPA's promulgation of the Cross State Air Pollution rule requiring 27 states "to cut their sulfur dioxide emissions from 8.8 million tons per year to 2.4 million tons per year (73 percent) and their nitrogen oxides emissions from 2.6 million tons per year to 1.2 million tons per year (54 percent)," at an estimated cost of "up to $120 billion by 2015" and a reduction in the nation’s power supply by more than 55 gigawatts (almost 4 percent), according to the Brattle Group, an economic consulting firm."
- The EPA's promulgation of Mercury and Air Toxics Standards "which could cost an estimated $100 billion by 2017," require modification of over 700 electrical generating plants, and because "it will not be technically possible for some coal-fired power plants to comply, roughly 1 percent of U.S. net electrical capacity will be shuttered." These new standards were not made in reference to health risk thresholds.
- The EPA, in what can only be described as a war on coal (which provides roughly 50% of our nation's electricity) has through its permitting process, virtually - and unlawfully - shut down all applications for new coal mines. In one particularly egregious case, the EPA cancelled a permit issued in 2007 after it reinterpreted its own regulations.
- The EPA has made yet another power grab, assuming the authority to unilaterally issue fuel standards for vehicles, providing that in 2025, vehicles must get an average of 54.5 mpg.
- The EPA, as part of its rules on biofuels has provided that oil refiners must pay a significant penalty if they fail to mix cellulosic biofuels with their gas. Cellulosic biofuels, while mandated, are not being produced commercially, thus rendering compliance impossible.
- The Interior Dept.'s Gulf oil drilling unlawful permatorium in the Gulf after their falsification of a report to justify imposing the permatorium.
- The Interior Dept.'s decision to unilaterally put the eastern Gulf of Mexico, the Atlantic coast, and the Pacific coast off limits for development, effectively banning drilling in those areas for the next seven years.
- The Interior Dept.'s decision to unilaterally cancel 77 leases for oil and gas drilling in Utah.
- The Interior Dept.'s decision to break an agreement with Utah done in settlement of a lawsuit and reinstate an ambitious nationwide plan to unilaterally take more land and ocean territory under federal government control, putting the land off limits for development.
- The FCC power grab, without any grant of authority by Congress, to assume the right to regulate the internet.
- The FCC decision to order the the big wireless providers to sign ‘data-roaming’ agreements with smaller carriers, thus allowing smaller carriers to free-ride on the mammoth investments by the big carriers. "In addition, the FCC made it clear that it is willing to set the price for each data roaming agreement if it doesn’t like what the big carriers are offering–effectively reinstituting price regulation for the most dynamic sector of the economy."
- The DOE's war on Yucca Mountain as a nuclear waste repository that is still continuing. "In 2009, Administration arbitrarily broke federal law and derailed the most studied energy project in American history when DOE announced intent to withdraw 8,000 page Yucca Mountain licensing application with prejudice. American people have paid more than $31 billion (including interest) through percentages of electric rate fees towards the project and taxpayers have footed an addition $200 million in legal fees and over $2 billion in judgments against the DOE for breaking contracts associated with Yucca Mountain." Note as an aside that Obama's NRC appointee, Gregory Jaczko, did all in his power to thwart the Yucca Mountain project, including quashing an NRC staff report, altering a scientific staff report on the safety of the Yucca site, and withholding critical information from fellow commissioners. Jaczko, like Holder, still inexplicably retains his position.
- An EEOC letter stating that businesses may be violating a job applicant's rights under the ADA if they require that the applicant have graduated from high school.
- New DOJ regulations that require, at significant cost, every public pool in America be fitted with a permanent lift for disabled individuals or face stiff fines.
- The NLRB decision to file a frivolous complaint against Boeing for making the decision to open up a plant in right to work South Carolina, thus strong-arming Boeing into a sweetheart deal with the closed union shop plant in Washington.
- The NLRB decision to institute Card Check via the back door, thus dispensing with the right of employees to demand a secret ballot on whether to organize and thus making the union organizing system ripe for coercion and corruption.
- The NLRB, in what poses to be a particularly insidious decision, has approved micro-union organizing of workers holding the same job title in a businesses, regardless whether the majority of employees in the business reject the union.
- The NLRB, in cases where unionizing elections are held, has now provided for "snap elections" by shortening the time frame for such elections to 10 to 21 days after notice to the employers demanding a vote. This severely prejudices the ability of employers to make the case against unionization among their employees.
- The decision of the National Mediation Board to to make it easier for unions to organize the railroad and airline industries. "The law, as written by Congress, clearly requires a support of a majority of a group of employees before their employer can be forced to bargain with their union. For 75 years, the NMB interpreted it the same way. At the AFL-CIO’s request, the NMB changed the rule. There is now no requirement that a union ever demonstrate that it has the majority support of all the employees it will represent.
- The decision of the Dept. of Education to circumvent Congress and make unilateral changes to the No Child Left Behind Law.
- The HHS Mandate that will require religious individuals and institutions who are employers to fully fund free contraception and abortion plan B pills for female employees, irrespective of whether it violates their 1st Amendment rights of conscience.
- An IRS power grab to require that all tax preparers be licensed by the IRS. "The IRS wasn't granted the authority to do this by Congress, they just decided to go for it."
This is out of control and tyrannical. It is near the polar opposite of what our Founding Fathers envisioned when they drafted our Constitution. It must end or it will destroy our nation.
How we got here is the story of FDR and a Supreme Court that has utterly failed to defend the plain language of our Constitution. As one Cato Institute expert, Jerry Taylor, pointed out in testimony before Congress in 1996:
Before the New Deal, wholesale delegation of legislative authority to the executive was largely unknown in the United States, at least during peacetime. With the coming of the Great Depression, President Franklin Delano Roosevelt sought sweeping authority to manage the U.S. economy. With the passage of the National Industrial Recovery Act of 1933, he got it. The NIRA authorized industrial and trade associations to draw up codes designed to raise prices and restrict production; if the president found the codes acceptable, he was empowered to immediately issue and enforce them. Upon hearing of the NIRA, Benito Mussolini exclaimed, "Ecco un ditatore!" ("Behold a dictator!")
In 1935 the Supreme Court emphatically rejected the industrial code provisions of the NIRA in A.L.A. Schecter Poultry Corp. v. United States. The Court, led by Chief Justice Hughes, argued that "Congress is not permitted. to abdicate or to transfer to others the essential legislative functions with which it is thus vested." In his concurring opinion, Justice Cardozo famously characterized the industrial code provisions as "delegation running riot." But after Roosevelt's 1937 attempt to subvert the judiciary's independence by enlarging the Court, the Court never again struck down a New Deal statute on delegation grounds. Fear of Court-packing concentrated the mind wonderfully, and the judiciary chose not to stand in the path of the administrative state.
And so it has been ever since. In the 1944 case Yakus v. U.S., the Supreme Court put the final imprimatur on their Constitutional retreat, holding that "Congress could delegate to an executive agent the power to set maximum prices for virtually all goods throughout the economy." They rendered Art. I Sec. I of our Constitution a nullity.
But there was more to come. The final nail in our coffin came with the 1983 Supreme Court decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council. In that case, the Court granted "extraordinary deference to administrative agencies interpretations of their own authority." The Court held that "when a statute is silent on a particular issue, Congress can be understood to have delegated the power to make the law to the agency." That decision grants deeply non-democratic regulatory agencies vast power - and we can see its effect today in the many power grabs enumerated above in this post.
As Mr. Taylor summed up in his testimony before Congress:
With the judiciary's abdication of its constitutional role, we are left with a legal status quo that effectively centralizes all governing functions in the executive branch agency: Congress passes a statute endorsing a high-minded goal--accommodation of the handicapped, safe drinking water, protection of wildlife--the executive branch agency then issues and enforces the rules governing individual behavior; the judicial branch, for its part, grants "controlling weight" to the agency's interpretations of its own authority. In this way, the modern administrative state comes perilously close to realizing the Framers' definition of despotic government, articulated by James Madison in the Federalist 47: "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self- appointed, or elective, may justly be pronounced the very definition of tyranny."
Newt Gingrich oversaw passage of the Congressional Review Act during his term as Speaker. It is a law meant to give Congress the authority to quickly stop burdensome regulations. Unfortunately, it has not proven effective. Under the Act, Congress can raise an objection to a regulation within 60 days of its passage. Only a majority in the House and in the Senate are required to quash the regulation - but only if their joint resolution to quash is signed by the President. That makes the Congressional Review Act virtually useless.
The whole problem is a President governing our nation like a dictatorship through the regulatory agencies that are directly, or in some case indirectly, under his control. Thus the Cong. Review Act must be amended to remove the role of the President, requiring only an act of the elected body with "all legislative powers" to decide whether a regulation is to be approved or quashed.
Further, all regulations should be treated precisely as laws. As it stands today, regulations enjoy what amounts to a presumption of treatment as if they were a duly enacted law by Congress. In other words, it will remain in place unless repealed by an act of Congress that passes the House and a super-majority in the Senate.
Regulations should not be easier for government to create and leave in place than the laws of Congress itself. If an objection to a regulation is raised by a member of Congress, then that regulation should only pass into force - or remain in force - if Congress votes to approve it subject to the same standards as any law. That means it must be approved by a majority in both Houses, and as to the Senate, by a super majority if a filibuster is invoked.
Lastly, the time frame of 60 days to object to a regulation must be removed. Just as all laws are subject to being withdrawn by Congress at any time, so must all regulations be forever subject to Congressional review under the framework above.
The above recommendations would do nothing more than put regulations on the same footing as all other laws in our Constitutional system. Let there be no regulation without representation. Our nation's fate hangs on it.