American Elephants

Is The Constitution Dead? Did It Die While We Weren’t Paying Attention? by The Elephant's Child


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.

For Obama, Progress Is When He Makes The Rules by The Elephant's Child

President Obama convened his cabinet for a rare meeting on Tuesday, to ask for their help in devising a new round of executive orders to do what he wants. “We’re gong to have to be creative about how we can make real progress,” he said.

House Speaker John Boehner (R-OH) said last week he was planning to file a lawsuit against Mr. Obama’s use of executive actions to bypass Congress and legislate from the White House. “The Constitution makes it clear that the president’s job is to faithfully execute the laws. In m view, the president has not faithfully executed the Law,” Speaker Boehner told reporters.

Mr. Obama’s reaction is to blame Republicans for not doing what he wants, and say he will just move ahead on his own.”We’re always going to prefer working on a bipartisan basis to get things done,” Mr. Obama said in one of his more absurd statements. He has made no effort to work with Republicans, and simply expects them to do his bidding. If they don’t, he calls them names.

The Supreme Court has ruled against the administration 20 times, unanimously. Senator Ted Cruz explains. When the president’s own appointees unanimously reject the administrations call for broader federal power, it’s pretty clear that the administration’s view of federal power knows no bounds.

Administrative power has an old and dark history. As early as the Middle Ages, English kings were expected to rule through acts of Parliament and the acts of the law courts. Kings liked the legitimacy of this regular mode of governance, but couldn’t always get what they wanted from Parliament. They justified it as the prerogatives of a king, or absolute power. Constitutional law developed to preclude any such illegal power. Americans knew the English experience with absolute power and feared any recurrence of it in America. Our Constitution precludes extralegal power by placing legislative powers in Congress and judicial power in the courts.  The Constitution emphasizes that “All legislative Powers herein granted” are vested in Congress. It’s a recurring problem.

With immigration legislation dead for the year in Congress, the president said he would use his executive authority to boost border security and would consider additional steps to change the nation’s immigration policies. He faces pressure from immigration activists to grant work permits to millions of undocumented immigrants. He will probably attempt to make adjustments to deportation policy that will shield some illegal immigrants from deportation.

Mr. Boehner blamed the president for the House’s inaction. “In our conversation last week, I told the president what I have been telling him for months: the American people and their elected officials don’t rust him to enforce the law as written. Until that changes, it is going to be difficult to make progress on this issue.”

Are We Sheep, Or Are We Not? by The Elephant's Child

Now pay close attention. Liberals tell us that regulation creates jobs. Pause and allow that to sink in. In the endless debate about how to put unemployed Americans back to work, there is one solution —deregulation— that never gets mentioned by the media, yet if implemented correctly, could provide an almost cost-free stimulus of a trillion dollars or more.  According to the Small Business Administration (SBA), the regulatory burden on our economy is a staggering $1.75 trillion annually.

Last October, Barbara Boxer explained carefully that not only do EPA rules protect the environment, they are an engine of economic growth. Somebody has to do the work of complying with the rules and “industries that provide environmental protection” Boxer’s report says, have “created more than a million jobs.” 54.000 jobs will result from tougher auto fuel economy standards, and as an added bonus, EPA rules provide “business with the opportunity to develop, construct and sell new and cleaner products.” Is that perfectly clear?

On September 30, the Washington Times reported that new greenhouse gas regulations from the EPA will, according to court filings, require the hiring of 10,000 new state level bureaucrats to process permit applications.  At the federal level, it is estimated that 230,000 new hires will be required. Liberals don’t understand why federal jobs don’t count. They have never understood that there in no government money, but only taxpayer money. Government money has no real limits. If they need more, they just raise taxes. You see how it works.

The CEO members of the Business Roundtable were in the nation’s capitol just this last week, trying to explain to members of Congress that regulations were a problem that weighed heavily on business. They listened, but they did not hear. Businessmen have been bringing this message to Washington for nearly four years now, but it does not compute.

During its first three years in office, the Obama Administration unleashed 106 major regulations that increased regulatory burdens by more than $46 billion annually, and nearly $11 billion in one- time implementation costs.  This is about five times the amount imposed by the Bush administration in their first three years. Hundreds more pages of regulations are being added to the Federal Register which stem from the dreadful Dodd-Frank financial regulation statute and from metastasizing ObamaCare.

The regulatory burden harms everyone.  Each regulation involves costs and consequences that are poorly understood by the issuer. Neither Congress nor the Administration keeps track of the number of regulations, their cost, nor their economic impact. During 2011 the Obama administration completed a total of 3,611 rulemaking proceedings, according to the Federal Rules Database maintained by the GAO, of which 79 were classified as “major” meaning that each had an expected economic impact of at least $100 million per year. Regulations adopted in 2011 cost Americans around $10 billion in new annual costs. They don’t have a department for getting rid of excessive regulations, nor anyone in charge, nor any interest in doing so.

Maybe if each new rule had to come back to Congress and be voted on before they took the force of law, something would change.Maybe they need a formal committee for getting rid of regulations. Keep this in mind, and next time you have a chance let your legislators know that you are aware of the problem and looking for action. We can’t just be sheep standing around getting wrapped up in more and more constricting bonds. We’re getting painfully sheared, and we need to take notice.


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