Filed under: Climate Change, Decisions, Democrat Corruption, History, Law, Politics, Progressivism, Statism, The Constitution | Tags: Administrative Law, Philip Hamburger, The Constitution
This lovely paragraph is in Myron Magnet’s review of Philip Hamburger’s Is Administrative Law Unlawful? in City Journal, the magazine of the Manhattan Institute:
The world-historical accomplishment of the American Revolution, and of the Constitution that came out of it, Hamburger notes, was that they turned upside-down the traditional governmental model of “elite power and popular subservience.” Americans “made themselves masters and made their lawmakers their servants” through a Constitution that they themselves had made. They observed laws that had legitimacy because they themselves had consented to them, through representatives whom they themselves had chosen. And “they made clear that not only their executives but even their legislatures were without absolute power.” Citizens claimed for themselves the liberty to do anything that the laws didn’t expressly forbid, and that freedom richly nourished talent, invention, experimentation, specialization—all the human qualities that are the fuel of progress and modernity.
It struck me that much of what drives the Left is contained in that paragraph. What the Left aims for is elite power and popular subservience. Obama, today, in response to a Republican sweep of the 2014 election, has decided, instead of making an effort to work with Congress in a bipartisan manner, to conduct foreign policy and legislate all on his lonesome. Politicians, by their very nature have a healthy dose of self-esteem, and they choose their rhetoric carefully to place their accomplishments or lack of accomplishments in the best possible light. That’s just natural. But insisting that because you are President of the United States you can do whatever you want to do by executive order, ignoring the tripartite nature of our Constitutional government, is just wrong.
The Constitution lodges all legislative power in Congress, which therefore cannot delegate its lawmaking function. It is, Hamburger says, “forbidden for Congress to pass a law creating an executive branch agency that writes rules legally binding on citizens—for example, to set up an agency charged with making a clean environment and then to let it make rules with the force of law to accomplish that end as it sees fit. The power of the legislative’ as the Founding Fathers’ tutelary political philosopher, John Locke, wrote, is ‘only to make laws and not to make legislators.’ And if Congress can’t delegate the legislative power that the Constitution gives it, it certainly cannot delegate power that the Constitution doesn’t give it—namely, the power to hand out selective exemption from its laws, which is what agencies do when they grant waivers.”
James Madison, architect of the Constitution saw the separation of powers as an essential bulwark of American liberty. Administrative agencies, however, make rules, carry them out, adjudge and punish infractions of them, and wrap up legislative, executive and judicial powers in one noxious unconstitutional mess. Judicial power cannot be delegated as legislative power, the Constitution puts all of it in the judicial branch. Unlike real judges, administrative judges carry out the policy of their agency, as set and overseen by their department chief or the relevant cabinet secretary who in turn oversees him. This is not a court, and not a law, and not legal. Yet they can and do order parties to appear before it, and extort millions of dollars in settlements, force companies to allow inspectors to enter their premises without warrants, and impose real criminal penalties. It can even kill a whole industry, as Obama’s EPA is attempting to do to the coal industry and the coal-fired power industry because the President mistakenly believes the carbon dioxide they emit is the cause of global warming.
Elites, particularly Leftist elites, do not like the Constitution which restrains their grasp for power. Many have accused Barack Obama of wanting to be a king. He laughs it off, and tries to pretend that his executive orders and executive notes and memorandums and signing statements are all perfectly constitutional, and adds, of course, that Bush did it.
Constitutional government is by its nature slow, designed to force new laws to be discussed and argued about, which will incline them to be better written and better law. But Congress, at some point got lazy, and felt it would speed things up if they just handed the administrative function in its entirety off to the assorted agencies of the government.
Thanks to Obama, we have a prime example of the failure of that whole endeavor in the Environmental Protection Agency. Good intentions come up against the nature of bureaucracy which is to grow and elaborate their mission and enhance their power. The Clean Water Act has long since accomplished it’s intent, and the EPA is vigilantly attempting to extend its regulating power to the trickles that flow into the ditches that flow into the creeks that flow into the streams that eventually flow into the “navigable waters,” the big rivers, that were originally given into their oversight. That’s pure power grab.
Congress must take back the legislative power assigned to it, agencies must shrink drastically in size, authority, and reach. They are not allowed to make law, administer law, investigate and judge law and assign penalties. Things have gotten so far out of whack that most, if not all, agencies have their own swat teams.
Part of the problem is that judges don’t know or understand the intricacies of the underlying facts of that which the agencies are attempting to regulate. Congress told the EPA that the navigable waters of the United States should be reasonably clean. The courts don’t necessarily understand where the dividing line for “enough” should fall.
Even while adhering to Supreme Court precedents about administrative power, they “remain free—indeed, [the courts] are bound by duty—to expound the unlawfulness of such power.” And at some point, Hamburger expects, the Supreme Court will have to man up and frankly state that what the Constitution says is the supreme law of the land.
And the people are going to have to let their representatives know that we care about the Constitution and our freedom, and are opposed to the administrative state.
Filed under: Democrat Corruption, Foreign Policy, Iran, Law, Military, National Security, Politics, Terrorism, The United States | Tags: A Nuclear Deal, Presidential Powers, Restraining Iran
Alan M. Dershowitz wrote this week that “Politicians should stop referring to the President of the United States as the Commander in Chief. And Barack Obama frequently refers to himself in those terms. Mr. Dershowitz has tried to clarify the situation:
But the president is not the Commander-in-Chief for purposes of diplomatic negotiations. This characterization mistakenly implies that President Obama — or any president — is our Commander, and that his decisions should receive special deference. This is a misreading of our constitution, which creates a presidency that is subject to the checks and balances of co-equal branches of the government. The president is only the commander in chief of “the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States.” This provision was intended to assure civilian control over the military and to serve as a check on military power.
The only people he is empowered to command are soldiers, sailors and members of the militia — not ordinary citizens.
This important limitation on the president’s power is highly relevant to the current debate about Congress having the authority to check the president’s decision to make the deal that is currently being negotiated with Iran. The Constitution is clear about this. The President is not the Commander-in-Chief of our nation’s foreign policy. When he is involved in “high-stakes international diplomacy,” his involvement is not as Commander-in-Chief of our armed forces, but rather as negotiator-in-chief, whose negotiations are subject to the checks and balances of the other branches.
As President, he cannot even declare war, though he can decide how a war should be fought after Congress declares it. He cannot make a treaty without the approval of 2/3 of the Senate. He cannot appoint Ambassadors without the consent of the Senate. And he cannot terminate sanctions that were imposed by Congress, without Congress changing the law. Were he the “Commander-in-Chief” of our country — as Putin is of Russia or as Ali Khamenei is of Iran — he could simply command that all of these things be done. But our Constitution separates the powers of government — the power to command — into three co-equal branches. The armed forces are different: power is vested in one commander-in-chief.
A president is the head of the executive branch, one of three co-equal branches. As head of the executive branch, he can negotiate treaties, agreements and other bilateral deals, but Congress has a say in whether to approve what the president has negotiated. If the deal constitutes a “treaty” within the meaning of the constitution, then it requires a formal ratification by congress. Executive agreements can be undone. Any impression that the president alone can make an enforceable and enduring deal with Iran regarding its nuclear weapons program is incorrect.
Alan M. Dershowitz is a Professor of Law emeritus from Harvard Law, and a frequent commenter on matters legal and constitutional.
Filed under: Capitalism, Democrat Corruption, Domestic Policy, Economy, Health Care, Law, Progressivism, Taxes | Tags: $125 Billion, A New Record, Improper Payments
It’s a new record for improper payments dished out by federal agencies — an all time high of $125 billion in questionable payments after years of declines.
There were tax credits for families that didn’t qualify for tax credits, unemployment benefits for people who were employed, Medicare payments for treatments that might not have been necessary. This is up by $19 billion over the previous year. The overpayments were spread across 22 federal agencies, though Medicare and Medicaid fraud and the Earned Income Tax Credit together accounted for more than $93 billion in improper payments.
I heard on the radio that we apparently have some of the world’s oldest people receiving Social Security benefits. Since they are apparently older than the oldest woman who was celebrated in the media at 117, it’s fairly safe to assume that they are illegal immigrants receiving benefits by stealing someone’s identity.
Filed under: Capitalism, Democrat Corruption, Domestic Policy, Economy, Energy, Engineering, Environment, Junk Science, Law, Politics, Progressivism, Science/Technology | Tags: Arctic Ocean Drilling, Puget Sound"s Elliott Bay, Royal Dutch Shell
Seattle is an interesting city, sinking slowly in the West¹. but still reliably, environmentally green. This is the city that insists that grocery store customers use cloth bags for their groceries, or pay for the other kind. That fines citizens $50 for putting any foodstuff in the garbage can instead in the yard waste can. Nearly 98 percent of its energy comes from renewable sources, thanks to Columbia River Dams, which the County Council wanted to tear down until they took a field trip and found out how big they were. Now, a national furor has erupted over Foss Shipyards’ lease of their docks to Royal Dutch Shell for the regular maintenance and repair of their Arctic drilling rigs. (Shown above a 2012 photo of Shell’s Kulik leaving Seattle)
In the first place the green loonies assumed that they were going to start drilling for oil in their beloved Puget Sound. Seattle always has indignant protesters willing to come out and demonstrate. But when it turned out that it was just for the repair of their Arctic Ocean drilling rigs, they switched their environmental angst to the Arctic Ocean. The City Council was up in arms, a court challenge was filed by environmental groups, and protesters have vowed to block the rigs arrival with a flotilla of kayaks in Elliott Bay.
“You have signed a lease that will amount to a crime against the planet,” said Zarna Joshi, 32, a Seattle resident who was first to speak at a raucous three-hour public meeting this week before the port’s commissioners. The meeting was packed mostly with opponents and punctuated by the occasional dissenter, pointing out the hypocrisy of protesters who had arrived to denounce Shell in vehicles running on gasoline.
Officials at the publicly owned Port of Seattle have strongly defended the lease, saying that the two year contract will bring in millions of dollars in revenue and create hundreds of good jobs on 50 acres that Shell would use just west of downtown. In any case, the decision to allow oil exploration in Arctic waters is federal policy, and not anything that the port or the city or the state can alter.
It’s all about climate change, of course, and politics, and the politics of climate change — science is not involved, only emotion and Democratic talking points.
“Hosting the Arctic drilling fleet in the city of Seattle is an activity that, if successful in drilling and extracting oil from the Arctic, will almost certainly mean that all of the industrial land in Seattle will be under water, and is completely inconsistent with the region’s and even the port’s goals,” said Mike O’Brien, a Seattle City Council member.
¹Seattle has long had an elevated roadway along the water front to let drivers bypass much of downtown Seattle if they choose, but it is old. Almost as long has been the fight over a replacement. Freeway, tunnel, street-level replacement. Property owners of lots facing the waterfront have always fought for a tunnel to remove the unsightly Alaskan Way Viaduct, and they eventually won the argument. Digging began, giant tunneling machine “Big Bertha’ went to work, drilled a few feet and ran plumb into a huge old drainage pipe that they didn’t know was there. They apparently cannot proceed, they cannot remove the pipe, and the people in those waterfront properties are finding that their buildings are sinking, slightly, but regularly. No answers.
Filed under: Democrat Corruption, Domestic Policy, Economy, Immigration, Latin America, Law, National Security, Politics, Progressivism, The United States | Tags: 26 States Have Sued, Misleading a Judge, Obama's Illegal Amnesty
U.S. District Judge Andrew Hanen who blocked President Barack Obama’s executive amnesty action on immigration, has ordered the Justice Department to respond to allegations that the government has misled him about part of the President’s plan.
The judge has ordered federal government lawyers to appear in his court on March 19 in Brownsville, Texas. The hearing is in response to a filing last week in which the government acknowledged some deportation reprieves were granted before Hanen’s February 16 injunction. Government attorneys has said that officials wouldn’t accept requests for reprieves for DACA (deferred action for childhood arrivals) illegals until February 18, and would start DAPA (deferred action for parents of Americans and Lawful Permanent Residents) in May of 2015.
On March 3, Obama’s lawyers admitted to the judge that officials had already given three-year DACA amnesty to 100,000 younger people. Only off by 100,000.
Out of an abundance of caution, however, Defendants wish to bring one issue to the Court’s attention,” said the administration’s document given to the judge. “Between November 24, 2014 and the issuance of the Court’s [Feb. 16] Order, USCIS granted three-year periods of deferred action to approximately 100,000 individuals who had requested deferred action under the original 2012 DACA guidelines.”
The government claimed that the 100,000 illegal immigrants who were granted three-year reprieves and work permits were already eligible under a previous immigration plan from 2012.
The 26 states suing over Obama’s amnesty plan requested more information.
It’s not nice to fool U.S. District Judges. They may be annoyed.
Estimates of the cost of Obama’s amnesty program run from half a billion to expand the workforce by more than 3,000, up to $2 trillion over the long term in benefits and increased government expenditures. That’s just for the federal government, there will be billion of dollars for costs for the states.