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 healthcare.gov, 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 CNSNews.com, March 5, 2015
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