American Elephants


It’s Not “The Establishment,” It’s The Left’s Grab For Power! by The Elephant's Child

ObamaCourt
Are you tired of the circus that the presidential campaign has become? The latest insult from Mr. Trump is food for a thousand articles about the polls and who is up and who is not. Mr. Trump is doing an amazing job of keeping the attention of the media on his every word. Comments on posts are partisan and angry, but the anger is remarkably unfocused. Everyone is furious with “the establishment” but no one seems to know just who “the establishment” is. Presumably it’s the people they elected last time around.

The “establishment” is apparently the people who know their way around Washington, and understand how it works. And they deserve your fury because? There has been a major shift over the past seven-and-a-half years as the two major parties jockey for power. President Obama had a Democrat Congress to work with, and was able to pass all sorts of noxious laws without a single Republican vote. Lots of promises, mostly hooey, and lots of regulations that Republicans would not have put into place. But Democrats were in charge. See the Constitution and the Bill of Rights in the sidebar.

The major change has been the arrogation of power to the executive branch. Lawmaking is the task of the Congress, but this president has claimed much of that power for himself, and distributed much administrative power to the various executive agencies. From the Coyote Blog, Mr Meyer said: “This is eye opening:

In one recent year alone, Congress passed 138 laws—while federal agencies finalized 2,926 rules. Federal judges conduct about 95,000 trials a year, but federal agencies conduct nearly 1 million. Put all that together and you have a situation in which one branch of government, the executive, is arrogating to itself the powers of the other two.

he adds: This probably understates the case.  Most of the laws were probably brief fixes or extensions or for national _____ day declarations.  The administrative rules can be thousands of pages long and create nightmarish compliance issues.  Already, most of our businesses compliance efforts (which seem to be rising exponentially in time and cost) are due to administrative rules changes rather than new laws per se.

This is called “Administrative Law. Suddenly, executive agencies are writing the regulations, administering them, enforcing them and conducting trials and issuing fines or penalties to those who do not go along cheerfully. Some agencies even have their own SWAT teams.

America has witnessed a massive shift in government authority, says George Washington University law professor Jonathan Turley—one that “has occurred without a national debate and certainly not a national vote.” That shift has led to the de facto creation of a “fourth branch of government containing legislative, executive and judicial components but relatively little direct public influence.”

Turley made those remarks in recent testimony before a House Judiciary subcommittee. His talk waded deeply into the weeds of legal history and precedent, but the upshot was this: By failing to rein in regulatory agencies when they overstep their bounds, the Supreme Court and Congress have allowed those agencies not merely to administer law, but to create it—and run roughshod over the public in the process. …

All of this has happened thanks largely to a 1984 Supreme Court case called Chevron. The Reagan administration chose to relax some air-quality regulations, and the Natural Resources Defense Council challenged the decision in court. The Supreme Court sided with the Environmental Protection Agency. It did so for commendable reasons: to avoid turning the courts themselves into policy-making bodies. Rather than decide whether the EPA was right or wrong, the high court deferred to the agency. This is judicial modesty.

Daniel Greenfield said “This is how we move toward a totalitarian state. Incrementally. Step by step. Regulation by regulation implemented by a collectivist bureaucracy for all the “right leftist reasons”. You can’t object. That would be bigoted. Or mean that you have “something to hide”.

That last link notes that the EEOC has released a proposed rule requiring employers to submit employee W-2 earnings and hours worked. All employers with at least 100 employees would be required to comply. The Office of Federal Contract Compliance Programs (OFCCP) would jointly have access to the pay data for enforcement  purposes.  Whoa!

The Republican House voted in February “on legislation to make it more difficult for banking regulators to demand that banks shut down certain business accounts.” The legislation is designed “to target the Obama administration’s ‘Operation Choke Point’ a Justice Department effort to require businesses to stop banks from working with certain businesses. These businesses include lawful firearms dealers, payday lenders, escort services and other companies.”…”While the Justice Department cut off financial services to certain industries, it encouraged banks to provide services to others like illegal marijuana sales.”

We are all too familiar with the overreach of the EPA under administrator Gina McCarthy the agency is embarked on a grab for power. Philip Hamburger had a new book “Is Administrative Law Unlawful?” in 2014. Powerline chatted with him about the book, which they said is the most important book they had read in a long time.

I think this is perhaps what people are getting at when they are so angry with “the establishment” — that undefined bunch of “insiders.”That’s where the anger should be directed. Administrative Law is unlawful, unconstitutional and illegitimate. This is the power once claimed by English kings, and exactly what our Constitution was carefully designed to prevent.



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

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.




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