The rule of law is in grave danger, as federal regulators use ever thinner legal pretexts to enable vast public policy changes without votes by our elected representatives.  In a span of just seven days, (essay originally published on March 5, 2015) the FCC declared the Internet a public utility, Congress acceded to DHS implementing executive amnesty, the president used a veto threat to protect the NLRB’s ambush elections rule, and the Supreme Court’s four liberals showed they are not just willing but enthusiastic to allow the IRS to ignore the plain language of Obamacare.  A great week for regulators, but a terrible week for everyone else.

The FCC order regulating the Internet was written by political operatives in the White House, is over 300 pages long and – even though it was approved on a party-line 3-to-2 vote on February 26 – has still not been released to the public.  The man who reportedly convinced President Obama to demand the FCC, which is supposed to be an independent agency, to adopt his plan was Tumblr CEO David Karp, who when asked the most rudimentary question about the economics of the order replied: “Ummm, uhhhh, I confess. Not my area of expertise.”  Now, the same radical pressure groups that have long pushed for such regulations, funded by $196 million from George Soros and the Ford Foundation, are launching a major effort to scare Congress – the legitimate legislative branch of the federal government – into sitting on their hands and not acting on the issue.

The union agenda was emphatically rejected when the card check bill, a union wish list that included ending private ballot protections for organizing elections crashed and burned in Obama’s first term.  Undeterred, the president stacked the NLRB with union lawyers via “recess appointments” made when the Senate was not in recess.  When the Supreme Court struck down the illegal appointments in an emphatic 9-to-0 decision, Harry Reid threatened to use the nuclear option to break Senate rules to stack the board again.  (Reid later went beyond threats and actually executed the nuclear option to allow Obama to stack the DC Circuit court that reviews agency actions, enabling further abuses of agency power.)

The union lawyers at the NLRB recently adopted an ambush elections rule that allows union organizers to demand surprise elections at a strategic moment of their choosing, before employees have an opportunity to consider the arguments against joining a union.  The Senate voted to overturn the rule this week, but President Obama promised to use his veto to keep the rule in effect, even though it is opposed by Congress.

Worst of all, the Supreme Court appears to be seriously entertaining allowing an IRS rule that magically transfigures, created by the federal secretary of Health and Human Services, into “an exchange established by the state.” That little IRS magic spends billions of taxpayer dollars on subsidies and triggers employer mandate penalties, causing jobs to be destroyed and shifts cut in states that lawfully opted out.  The rule is absurd on its face.  But it may be upheld, and if it is, we will officially be in an era in which agencies like the IRS can do the opposite of what the laws actually say.

This is all in just one week. (I haven’t even mentioned that the EPA remains as committed as ever to coercing states into adopting cap-and-trade energy taxes that were rejected by Congress.)

The shifting of ever more power into the presidency and his regulatory apparatus is a long running problem, but it has accelerated dramatically in the current administration.  President Obama is now even reportedly exploring the possibly of usurping Congress’s most fundamental power by directly ordering tax hikes.

We are, if the American people don’t wake up and demand better, on the brink of losing our constitutional form of government forever in favor of a soft tyranny of federal regulators constrained only by elite opinion and quadrennial presidential elections.

Phil Kerpen is head of American Commitment and a leading free-market policy analyst and advocate in Washington. Kerpen was the principal policy and legislative strategist at Americans for Prosperity for over five years.  He previously worked at the Free Enterprise Fund, the Club for Growth, and the Cato Institute.  Kerpen is also a nationally syndicated columnist, chairman of the Internet Freedom Coalition, and author of the 2011 book “Democracy Denied.

Originally published on, March 5, 2015

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7 replies
  1. Ron
    Ron says:

    The march towards a “living Constitution,” which I commented on yesterday, and towards an ever more powerful “administrative state,” where “intellectual giants” who know far more than the average middle class American citizen they proclaim they want to protect, make the rules by which we must conduct our lives, is nearing its apex. “We the people” must decide, sooner than later, if we prefer control or freedom. If we continue to push the can down the road, by default, we’re making the choice for control.

  2. Barb Zack
    Barb Zack says:

    How can we wake people who are more concerned with who wins the Trophy on “dancing with the stars” that our Country is in grave, if not mortal danger? Electing conservatives may not be enough.. we have to change the institutions: education, entertainment, news. Most people just shrug their shoulders when conservatives talk about the regulation Nation. And Congress does, for the most part, just sit on their hands. They’ve abdicated their Constitutional role LONG ago. and now we have a power hungry president, an alinskyite, surrounding himself with like-minded individuals hell-bent on destroying America from inside. And they are succeeding.

    I will continue to share these posts and talk to people. We must change not only their minds, but their hearts!

  3. Ralph Howarth
    Ralph Howarth says:

    Congress has several options to counter administrative power. Cutting funding and impeachment are a few; but what is at hand is Congress either explicitly voting down a measure taken up by executive administration that never ascended to a POTUS signature as a bill or the administration outright makes a rule never contemplated in the legislature. Now, when it comes to an administrative policy never voted on before, there may be a POTUS signature involved on the policy in some form of executive action or executive order. But in any case, Congress has the power to vote on a Resolution that never goes to the POTUS for signature. A Resolution then is an instrument that is permissible in a court of law. So when a lawsuit arises in Due Process against the government enacting a fine or other forms of confiscation, the government cannot produce a law signed by Congress to defend itself in court when the Plaintiff produces a Congressional Resolution that demands the government stops its action. Just as POTUS can issue a Veto threat, a Resolution is a threat on the executive.

    States also have the States Compact Clause A1 S10 C3 at their disposal that only requires the “Approval of Congress” without POTUS signature to get around the Veto power. In a lawsuit then against the government, the government may have to defend against a Resolution and / or a State Compact when it cannot produce a law approved by Congress and signed by the POTUS for any authority. In addition, on lawsuits concerning labor relations, a lawsuit can produce amendment and ratification debates to prove that the federal government was never authorized by the states to regulate labor, manufactures, or education. There are ways to shut down government overreach; but hardly any of these measures are deployed.

    • Ron
      Ron says:

      Ralph, I assume Congress knows about these ways to shut down government overreach; why won’t they use them, especially now that Republicans control both houses?

  4. Bob
    Bob says:

    This has been coming from the Bible. The loss of freedom. The attack on God’s Word has increased as the country has been led astray. Turn to Jesus Christ. He is our Hope for the future.

  5. Cheryl
    Cheryl says:

    I would be willing to bet most members of Congress either are not aware of these instruments, or just don’t know how to use them. The other possibility is that they have no cajones. Maybe it’s up to us, as citizens, to make our representatives/senators aware of the options open to them, and demand that those options be exercised….?

  6. Ralph Howarth
    Ralph Howarth says:

    Big money interest lobbyists, some Republican aligned corporate interests, some Democratic aligned union and foundation interests, prefer to have all eggs in one basket instead of having to chase down 50 state houses to get earmarks for something done. Congress is generally uneducated about the constitution where some provisions are never used or have not been used in over a century and the nationalist, cosmopolitan culture that permeates. Congressman are so busy politicking and catering to magnitudes of trees of interests–interests never so fathomed for a congressional officer to handle–that they cannot see the forest. A Sovereign State Budget Amendment would break the lobbyist cycle by preventing taxes raised in a state from leaving the state and stay within the state budget for what are federal funds. That is what happens to Congressman. They go to Washington to have to wheel and deal a system of bribes and inducements in order to get money that left their state to come back into their state.


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