Regulation vs. Legislation

Charles Krauthammer shows how the Executive Branch can get its way even when the Legislative Branch votes down its plans:

Most people don’t remember Obamacare’s notorious Section 1233, mandating government payments for end-of-life counseling. It aroused so much anxiety as a possible first slippery step on the road to state-mandated late-life rationing that the Senate never included it in the final health-care law.

Well, it’s back – by administrative fiat. A month ago, Medicare issued a regulation providing for end-of-life counseling during annual “wellness” visits. It was all nicely buried amid the simultaneous release of hundreds of new Medicare rules.

Rep. Earl Blumenauer (D-Ore.), author of Section 1233, was delighted. “Mr. Blumenauer’s office celebrated ‘a quiet victory,’ but urged supporters not to crow about it,” reports the New York Times. Deathly quiet. In early November, his office sent an e-mail plea to supporters: “We would ask that you not broadcast this accomplishment out to any of your lists . . . e-mails can too easily be forwarded.” They had been lucky that “thus far, it seems that no press or blogs have discovered it. . . . The longer this [regulation] goes unnoticed, the better our chances of keeping it.”

So much for the Democrats’ transparency – and for their repeated claim that the more people learn what is in the health-care law, the more they will like it. Turns out ignorance is the Democrats’ best hope.

And regulation is their perfect vehicle – so much quieter than legislation. Consider two other regulatory usurpations in just the past few days:

On Dec. 23, the Interior Department issued Secretarial Order 3310, reversing a 2003 decision and giving itself the authority to designate public lands as “Wild Lands.” A clever twofer: (1) a bureaucratic power grab – for seven years up through Dec. 22, wilderness designation had been the exclusive province of Congress, and (2) a leftward lurch – more land to be “protected” from such nefarious uses as domestic oil exploration in a country disastrously dependent on foreign sources.

The very same day, the Environmental Protection Agency declared that in 2011 it would begin drawing up anti-carbon regulations on oil refineries and power plants, another power grab effectively enacting what Congress had firmly rejected when presented as cap-and-trade legislation.

via Charles Krauthammer – Government by regulation. Shhh..

About Gene Veith

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

  • Rose

    Something really troubles me. It’s that the “Living Will” doctor-patient discussion is not what Sarah Palin refers to as Death Panels. These are panels of federal agents who determine your QALY “Quality Adusted Life Years” and detemine if you’re too old or sick for a certain treatment. Why don’t we hear more about this?
    (I posted this yesterday on an older thread; I’d really appreciate your thoughts on this. )

  • Rose

    Something really troubles me. It’s that the “Living Will” doctor-patient discussion is not what Sarah Palin refers to as Death Panels. These are panels of federal agents who determine your QALY “Quality Adusted Life Years” and detemine if you’re too old or sick for a certain treatment. Why don’t we hear more about this?
    (I posted this yesterday on an older thread; I’d really appreciate your thoughts on this. )

  • http://www.bikebubba.blogspot.com Bike Bubba

    Rose, the trick is that “he who pays the piper calls the tune.” In other words, you can count on the one paying medical bills to “encourage” doctors to write medical directives that refuse end of life treatments. So in other words, it is the back door to death panels.

  • http://www.bikebubba.blogspot.com Bike Bubba

    Rose, the trick is that “he who pays the piper calls the tune.” In other words, you can count on the one paying medical bills to “encourage” doctors to write medical directives that refuse end of life treatments. So in other words, it is the back door to death panels.

  • Tom Hering

    If you’re participating in some government health-care program, and some panel determines you’re too old and sick to be reimbursed for a particular treatment, you can still pay for it yourself – just like you would have if the government program never existed. So what’s the big deal? What private doctor or clinic or hospital is going to refuse you if you’ve got the cash or the private insurance?

  • Tom Hering

    If you’re participating in some government health-care program, and some panel determines you’re too old and sick to be reimbursed for a particular treatment, you can still pay for it yourself – just like you would have if the government program never existed. So what’s the big deal? What private doctor or clinic or hospital is going to refuse you if you’ve got the cash or the private insurance?

  • http://facebook.com/mesamike Mike Westfall

    I think it’s a good idea that Congress should have to cite constitutional authority for new laws to be passed.

    Even more so, I think administrative bureaucracies ought to have to cite congressional authority for any regulations they impose.

    If congress can’t get a law passed to accomplish a certain thing, then certainly bureaucracies have no power to accomplish that thing themselves.

    Only Congress can make laws. Bureaucratic regulations must be limited to expressions of those laws. For example, if Congress has not passed any law allowing for the regulation of carbon emissions, then the EPA has no power to regulate carbon emissions.

  • http://facebook.com/mesamike Mike Westfall

    I think it’s a good idea that Congress should have to cite constitutional authority for new laws to be passed.

    Even more so, I think administrative bureaucracies ought to have to cite congressional authority for any regulations they impose.

    If congress can’t get a law passed to accomplish a certain thing, then certainly bureaucracies have no power to accomplish that thing themselves.

    Only Congress can make laws. Bureaucratic regulations must be limited to expressions of those laws. For example, if Congress has not passed any law allowing for the regulation of carbon emissions, then the EPA has no power to regulate carbon emissions.

  • Rose

    Tom,
    That’s not really the problem, although it wouldn’t surprise me if the government squeezed doctors in the future to refuse patients who had been ruled to have no social utility.
    The 2009 first stimulus bill granted a billion dollars to a federal Comparative Effectiveness Research Council under the Agency for Healthcare Research and Quality. The American College of Physicians supports adding a Comparative Cost compoent.
    This will use the QALY metric already common in other countries.
    See Tammy Bruce’s “QALY: When the Government Thinks You’re Better Off Dead.” http://tammybruce.com/2009/02/qaly_when_the_government_think.html

  • Rose

    Tom,
    That’s not really the problem, although it wouldn’t surprise me if the government squeezed doctors in the future to refuse patients who had been ruled to have no social utility.
    The 2009 first stimulus bill granted a billion dollars to a federal Comparative Effectiveness Research Council under the Agency for Healthcare Research and Quality. The American College of Physicians supports adding a Comparative Cost compoent.
    This will use the QALY metric already common in other countries.
    See Tammy Bruce’s “QALY: When the Government Thinks You’re Better Off Dead.” http://tammybruce.com/2009/02/qaly_when_the_government_think.html

  • Tom Hering

    “… it wouldn’t surprise me if the government squeezed doctors in the future to refuse patients who had been ruled to have no social utility.” – Rose @ 5.

    If those doctors are in private practice, and those socially useless patients can pay for their care (with help from the church if nowhere else), then what interest would the government have in squeezing those doctors about those patients? You’re imagining some kind of leftist, totalitarian state in America, and I think that’s a bit too … imaginative.

  • Tom Hering

    “… it wouldn’t surprise me if the government squeezed doctors in the future to refuse patients who had been ruled to have no social utility.” – Rose @ 5.

    If those doctors are in private practice, and those socially useless patients can pay for their care (with help from the church if nowhere else), then what interest would the government have in squeezing those doctors about those patients? You’re imagining some kind of leftist, totalitarian state in America, and I think that’s a bit too … imaginative.

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    I don’t get the worry over end of life counseling. That is no big deal.

    The big deal is when Congress passes a law of the form that creates an agency and delegates authority to regulate X activity without requiring congressional approval for the specific regulations.

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    I don’t get the worry over end of life counseling. That is no big deal.

    The big deal is when Congress passes a law of the form that creates an agency and delegates authority to regulate X activity without requiring congressional approval for the specific regulations.

  • http://www.toddstadler.com/ tODD

    “Charles Krauthammer shows how the Executive Branch can get its way even when the Legislative Branch votes down its plans”, complaining “For an Obama bureaucrat, however, the will of Congress is a mere speed bump.”

    … And then Krauthammer appears to speak out of the other side of his mouth when he speaks approvingly of Obama’s using signing statements to get his way when Congress crafts laws he doesn’t like:

    It looks as if Democrats also agree that a President has the right to do a signing statement, in which it isn’t an end-run around the Congress but it’s his expression of his disapproval of what’s in the bill and that’s perfectly OK.

    Of course, Krauthammer approves Obama’s ignoring the will of Congress at this time because he believes “the president should have extensive powers in how he deals with the prisoners of war.” Notably, Krauthammer made part of his defense of Obama’s actions the claim that “Bush did exactly what a commander-in-chief ought to do,” so perhaps his is just a continued defense of neoconservatism and Krauthammer’s arguments made under past administrations.

    So … when is it okay for the executive branch to ignore the express will of the legislative branch? I guess it all depends, eh, Mr. Krauthammer?

  • http://www.toddstadler.com/ tODD

    “Charles Krauthammer shows how the Executive Branch can get its way even when the Legislative Branch votes down its plans”, complaining “For an Obama bureaucrat, however, the will of Congress is a mere speed bump.”

    … And then Krauthammer appears to speak out of the other side of his mouth when he speaks approvingly of Obama’s using signing statements to get his way when Congress crafts laws he doesn’t like:

    It looks as if Democrats also agree that a President has the right to do a signing statement, in which it isn’t an end-run around the Congress but it’s his expression of his disapproval of what’s in the bill and that’s perfectly OK.

    Of course, Krauthammer approves Obama’s ignoring the will of Congress at this time because he believes “the president should have extensive powers in how he deals with the prisoners of war.” Notably, Krauthammer made part of his defense of Obama’s actions the claim that “Bush did exactly what a commander-in-chief ought to do,” so perhaps his is just a continued defense of neoconservatism and Krauthammer’s arguments made under past administrations.

    So … when is it okay for the executive branch to ignore the express will of the legislative branch? I guess it all depends, eh, Mr. Krauthammer?

  • http://steadfastlutherans.org/ SAL

    The Constitution never envisioned a President with the powers of an Emperor. Having such an office is a threat to freedom.

    I’d favor a Constitutional Amendment eliminating the office of President if his powers were returned to the States and the Congress.

  • http://steadfastlutherans.org/ SAL

    The Constitution never envisioned a President with the powers of an Emperor. Having such an office is a threat to freedom.

    I’d favor a Constitutional Amendment eliminating the office of President if his powers were returned to the States and the Congress.

  • DonS

    Mike @ 4 is right on the money on the issue of administrative regulations. The purpose of regulations is to implement the provisions of the statute that was enacted. To add new elements not encompassed by the statute, and, in fact, specifically deleted from the bill before it was passed, after argument on the floor, is egregious.

    As for the signing statement issue, tODD @ 8, I reviewed your link, and it looks like your quote is at odds with the article. You quoted “in which it isn’t an end-run around the Congress but it’s his expression of his disapproval of what’s in the bill and that’s perfectly OK.” But the article actually says “in which it isn’t an end-run around the Congress but it’s his expression of his approval of what’s in the bill and that’s perfectly OK.” That changes the meaning a lot. It’s likely that the article initially had an error, and has now been corrected to reflect what Krauthammer actually said.

    Bush’s signing statements , to my recollection, never said that he was going to ignore parts of the bills he was signing. That would be extra-legal, and I would not support that at all. Rather, they stated the interpretation of those bills he was relying on in agreeing to sign them. Obama is now apparently going to do the same thing, and Krauthammer was commenting that this issue is apparently resolved, since the Democrats, including Obama, previously expressly opposed the use of signing statements. In an ideal world, you wouldn’t do things this way. You would encourage Congress to clarify the law so that such a statement is not required, and alternatively veto it until it is right. But when you are talking about defense appropriations bills in wartime, and you have a difficult partisan environment, you don’t always have the option to wait for the process to play out that way.

  • DonS

    Mike @ 4 is right on the money on the issue of administrative regulations. The purpose of regulations is to implement the provisions of the statute that was enacted. To add new elements not encompassed by the statute, and, in fact, specifically deleted from the bill before it was passed, after argument on the floor, is egregious.

    As for the signing statement issue, tODD @ 8, I reviewed your link, and it looks like your quote is at odds with the article. You quoted “in which it isn’t an end-run around the Congress but it’s his expression of his disapproval of what’s in the bill and that’s perfectly OK.” But the article actually says “in which it isn’t an end-run around the Congress but it’s his expression of his approval of what’s in the bill and that’s perfectly OK.” That changes the meaning a lot. It’s likely that the article initially had an error, and has now been corrected to reflect what Krauthammer actually said.

    Bush’s signing statements , to my recollection, never said that he was going to ignore parts of the bills he was signing. That would be extra-legal, and I would not support that at all. Rather, they stated the interpretation of those bills he was relying on in agreeing to sign them. Obama is now apparently going to do the same thing, and Krauthammer was commenting that this issue is apparently resolved, since the Democrats, including Obama, previously expressly opposed the use of signing statements. In an ideal world, you wouldn’t do things this way. You would encourage Congress to clarify the law so that such a statement is not required, and alternatively veto it until it is right. But when you are talking about defense appropriations bills in wartime, and you have a difficult partisan environment, you don’t always have the option to wait for the process to play out that way.

  • http://www.toddstadler.com/ tODD

    Don (@10), come on, did you watch the video? Please do. The article did a remarkably poor job of transcribing Krauthammer’s actual speech. Did you notice the part where they thought he (or anyone) would say “end of run-around for Congress”? Yeah, that’s not what Krauthammer said, either. Watch the video. Transcribe it for yourself.

    “Bush’s signing statements , to my recollection, never said that he was going to ignore parts of the bills he was signing.” No, not as such. He merely insisted that he was going to do what he thought was necessary as part of his belief in the power of the “unitary executive”, which might mean, from time to time, he’d have to ignore sections of the law just passed. Cf. the National Defense Authorization Act for Fiscal Year 2008 and the Detainee Treatment Act of 2005, for examples of this.

  • http://www.toddstadler.com/ tODD

    Don (@10), come on, did you watch the video? Please do. The article did a remarkably poor job of transcribing Krauthammer’s actual speech. Did you notice the part where they thought he (or anyone) would say “end of run-around for Congress”? Yeah, that’s not what Krauthammer said, either. Watch the video. Transcribe it for yourself.

    “Bush’s signing statements , to my recollection, never said that he was going to ignore parts of the bills he was signing.” No, not as such. He merely insisted that he was going to do what he thought was necessary as part of his belief in the power of the “unitary executive”, which might mean, from time to time, he’d have to ignore sections of the law just passed. Cf. the National Defense Authorization Act for Fiscal Year 2008 and the Detainee Treatment Act of 2005, for examples of this.

  • http://www.bikebubba.blogspot.com Bike Bubba

    Tom writes:

    “If you’re participating in some government health-care program, and some panel determines you’re too old and sick to be reimbursed for a particular treatment, you can still pay for it yourself – just like you would have if the government program never existed. So what’s the big deal? ”

    The big deal is that if a doctor takes Medicare, he can not, by regulation, accept fee for service from senior citizens. So no, when Medicare refuses your treatment, you are out of luck unless you can find a doctor who does not take Medicare and performs the treatment.

    Given that most doctors specializing in geriatric diseases take Medicare, yes, this is a deal breaker, and yes, it is death panels.

  • http://www.bikebubba.blogspot.com Bike Bubba

    Tom writes:

    “If you’re participating in some government health-care program, and some panel determines you’re too old and sick to be reimbursed for a particular treatment, you can still pay for it yourself – just like you would have if the government program never existed. So what’s the big deal? ”

    The big deal is that if a doctor takes Medicare, he can not, by regulation, accept fee for service from senior citizens. So no, when Medicare refuses your treatment, you are out of luck unless you can find a doctor who does not take Medicare and performs the treatment.

    Given that most doctors specializing in geriatric diseases take Medicare, yes, this is a deal breaker, and yes, it is death panels.

  • Joe

    “So … when is it okay for the executive branch to ignore the express will of the legislative branch?”

    Congress can pass a law that makes it illegal to use marijuana. The President is the chief executive – but a co-equal chief executive (as the President is) has discretion in how he enforces a law. He may choose to not spend resources on this crime. He may even instruct his US Attorneys not to prosecute run of the mill drug cases. This is a completely appropriate manner in which the President can ignore the will of Congress.

    No the converse is not. If the Congress decriminalizes marijuana the President may not continue to arrest people for using it.

    That said, I actually think signing statements could be useful. They give the Congress and the electorate an insight to what the President thinks about a law. In my example, say the law was an omnibus drug bill – a signing statement saying I am signing this law because I agree with 90% of it but I have no intention of systematically enforcing the sections that make pot use illegal would be tremendously useful.

  • Joe

    “So … when is it okay for the executive branch to ignore the express will of the legislative branch?”

    Congress can pass a law that makes it illegal to use marijuana. The President is the chief executive – but a co-equal chief executive (as the President is) has discretion in how he enforces a law. He may choose to not spend resources on this crime. He may even instruct his US Attorneys not to prosecute run of the mill drug cases. This is a completely appropriate manner in which the President can ignore the will of Congress.

    No the converse is not. If the Congress decriminalizes marijuana the President may not continue to arrest people for using it.

    That said, I actually think signing statements could be useful. They give the Congress and the electorate an insight to what the President thinks about a law. In my example, say the law was an omnibus drug bill – a signing statement saying I am signing this law because I agree with 90% of it but I have no intention of systematically enforcing the sections that make pot use illegal would be tremendously useful.

  • Porcell

    Actually, the founders who wrote the Constitution intended that each branch of government had the power to check and balance other branches, including giving the Supreme Court the power to adjudicate conflicts.

    Obama’s attempt to end run Congress on the issue of end-of life-counsellling will likely be settled by a Supreme Court decision.

    Bush’s bill signing statements were well within the spirit of the Constitution. Whether Obama’s end around of Congress on the issue of end-of -life counseling succeeds, we shall see. Todd’s view that Bush was wrong and Obama is right is mere political posturing.

  • Porcell

    Actually, the founders who wrote the Constitution intended that each branch of government had the power to check and balance other branches, including giving the Supreme Court the power to adjudicate conflicts.

    Obama’s attempt to end run Congress on the issue of end-of life-counsellling will likely be settled by a Supreme Court decision.

    Bush’s bill signing statements were well within the spirit of the Constitution. Whether Obama’s end around of Congress on the issue of end-of -life counseling succeeds, we shall see. Todd’s view that Bush was wrong and Obama is right is mere political posturing.

  • Rose

    Bike Bubba @12:
    Thanks for this clarification.
    It just seems very creepy and dangerous to let the government assign a QALY score to each citizen.
    Tom, the government would have a financial interest in reducing Social Security and Medicare rolls.
    In Britain, the NICE panel makes choices and assigns scores to treatments. Oddly enough, C S Lewis used the same acronym NICE for the panel in the last book of the Space Trilogy.
    (noted by a commenter on the Tammy Bruce website).
    NICE, QALY (looks like quality)—the opposite of the truth.
    “First corrupt the language.”

  • Rose

    Bike Bubba @12:
    Thanks for this clarification.
    It just seems very creepy and dangerous to let the government assign a QALY score to each citizen.
    Tom, the government would have a financial interest in reducing Social Security and Medicare rolls.
    In Britain, the NICE panel makes choices and assigns scores to treatments. Oddly enough, C S Lewis used the same acronym NICE for the panel in the last book of the Space Trilogy.
    (noted by a commenter on the Tammy Bruce website).
    NICE, QALY (looks like quality)—the opposite of the truth.
    “First corrupt the language.”

  • SKPeterson

    tODD @ 8 – I wouldn’t mind signing statements if the President would actually cite provisions in the Constitution that he feels invalidate a section of the law. Now, this could be seen as stepping on the toes of the Judicial branch, but I think the Executive can and should express its own reservations about the constitutionality of laws. Now, the Judicial is in the habit of striking down parts of laws, but not entire laws, while Presidents have simply vetoed entire bills and not proceeded with line-item vetoes.

    At this stage however, I cannot think of any branch of the government, Executive, Legislative, Judicial or Bureaucratic that actually adheres to the Constitution or even refers to it on a regular basis. One can only hope that by actually reading the document and citing the specific authority in the various sections under which an act is passed into law, our elected leaders might realize that 90% of what they have legislated in the past is actually unconstitutional.

  • SKPeterson

    tODD @ 8 – I wouldn’t mind signing statements if the President would actually cite provisions in the Constitution that he feels invalidate a section of the law. Now, this could be seen as stepping on the toes of the Judicial branch, but I think the Executive can and should express its own reservations about the constitutionality of laws. Now, the Judicial is in the habit of striking down parts of laws, but not entire laws, while Presidents have simply vetoed entire bills and not proceeded with line-item vetoes.

    At this stage however, I cannot think of any branch of the government, Executive, Legislative, Judicial or Bureaucratic that actually adheres to the Constitution or even refers to it on a regular basis. One can only hope that by actually reading the document and citing the specific authority in the various sections under which an act is passed into law, our elected leaders might realize that 90% of what they have legislated in the past is actually unconstitutional.

  • http://www.toddstadler.com/ tODD

    Hmm. Which alarmist view to take on the future of Medicare?

    1) There are too many doctors accepting Medicare. “The big deal is that if a doctor takes Medicare, he can not, by regulation, accept fee for service from senior citizens. … Given that most doctors specializing in geriatric diseases take Medicare, yes, this is a deal breaker, and yes, it is death panels.” (@12).

    2) “An increasing number of doctors are refusing to take on Medicare patients because the payments are too low. And starting on January 1 those payments are scheduled to be cut a whopping 25%.” From last November’s post Medicare crisis.

    Maybe they’re both right?

  • http://www.toddstadler.com/ tODD

    Hmm. Which alarmist view to take on the future of Medicare?

    1) There are too many doctors accepting Medicare. “The big deal is that if a doctor takes Medicare, he can not, by regulation, accept fee for service from senior citizens. … Given that most doctors specializing in geriatric diseases take Medicare, yes, this is a deal breaker, and yes, it is death panels.” (@12).

    2) “An increasing number of doctors are refusing to take on Medicare patients because the payments are too low. And starting on January 1 those payments are scheduled to be cut a whopping 25%.” From last November’s post Medicare crisis.

    Maybe they’re both right?

  • http://www.toddstadler.com/ tODD

    Joe (@13), yes, I have no problem with signing statements as you describe them. That is not, per my understanding, how they have been used in the past, most notably by Bush, but now threatened by Obama over Guantanamo detainees.

    Take the Obama case. Congress late last year passed a defense bill that made it much harder, in several ways (eliminating funding avenues, enacting stricter rules), for the Obama administration to transfer Guantanamo detainees to US soil to have trials here. This was because Obama has stated his intent to close down Guantanamo. Obama has threatened, as I understand it (a phrase that applies to this entire paragraph), to issue a signing statement basically claiming that, as President, he has control over war detainees, and those sections of the law passed by Congress constrain this power unconstitutionally.

    I disagree with Obama on this — something that Porcell (@14) has yet to understand, in keeping with his constant (incorrect) assumptions that I love everything Obama does. And Porcell, do note that at least Krauthammer and I are consistent on our positions with respect to signing statements — he thinks they’re the right thing for both Bush and Obama, I think they’re both wrong. It is you who, through “mere political posturing” appear to have found a way to applaud Bush’s signing statements as constitutional while not affording the same courtesy to Obama. The inconsistency is your problem, not mine.

    SK (@16), I’m not sure. I might agree with you if, upon issuing a signing statement saying “I will not abide by this law, it is unconstitutional”, a President then took the issue to be ruled on by the courts. He would then essentially be saying, “I think this is wrong, but will abide by the decision of this third branch.” That is not what has happened, however with Bush’s interpretation of the “unitary executive’s” constitutional powers. At least, I don’t think so.

    Anyhow, to bring it all back, I feel signing statements, in their recent usage, are a much greater usurpation of power than are rules changes in the Executive Branch. Having explained my thinking on signing statements, here is my thinking on these rules changes: As I understand it (can you tell I’m a little shaky on these matters?), the administration didn’t issue a rule that flatly gainsayed a law passed by Congress, but rather passed a rule that had not made it into a law. That’s quite a difference!

    Anyhow, all Congress has to do is pass a law prohibiting this rule or its effects from taking place, don’t they? They almost did that in the first place, but it never made it to the Senate floor. If the rule is so unpopular, why doesn’t Congress just do that? I don’t get it.

  • http://www.toddstadler.com/ tODD

    Joe (@13), yes, I have no problem with signing statements as you describe them. That is not, per my understanding, how they have been used in the past, most notably by Bush, but now threatened by Obama over Guantanamo detainees.

    Take the Obama case. Congress late last year passed a defense bill that made it much harder, in several ways (eliminating funding avenues, enacting stricter rules), for the Obama administration to transfer Guantanamo detainees to US soil to have trials here. This was because Obama has stated his intent to close down Guantanamo. Obama has threatened, as I understand it (a phrase that applies to this entire paragraph), to issue a signing statement basically claiming that, as President, he has control over war detainees, and those sections of the law passed by Congress constrain this power unconstitutionally.

    I disagree with Obama on this — something that Porcell (@14) has yet to understand, in keeping with his constant (incorrect) assumptions that I love everything Obama does. And Porcell, do note that at least Krauthammer and I are consistent on our positions with respect to signing statements — he thinks they’re the right thing for both Bush and Obama, I think they’re both wrong. It is you who, through “mere political posturing” appear to have found a way to applaud Bush’s signing statements as constitutional while not affording the same courtesy to Obama. The inconsistency is your problem, not mine.

    SK (@16), I’m not sure. I might agree with you if, upon issuing a signing statement saying “I will not abide by this law, it is unconstitutional”, a President then took the issue to be ruled on by the courts. He would then essentially be saying, “I think this is wrong, but will abide by the decision of this third branch.” That is not what has happened, however with Bush’s interpretation of the “unitary executive’s” constitutional powers. At least, I don’t think so.

    Anyhow, to bring it all back, I feel signing statements, in their recent usage, are a much greater usurpation of power than are rules changes in the Executive Branch. Having explained my thinking on signing statements, here is my thinking on these rules changes: As I understand it (can you tell I’m a little shaky on these matters?), the administration didn’t issue a rule that flatly gainsayed a law passed by Congress, but rather passed a rule that had not made it into a law. That’s quite a difference!

    Anyhow, all Congress has to do is pass a law prohibiting this rule or its effects from taking place, don’t they? They almost did that in the first place, but it never made it to the Senate floor. If the rule is so unpopular, why doesn’t Congress just do that? I don’t get it.

  • http://lutherama.blogspot.com Dr. Luther in 21st Century

    I wonder should agency regulations be voted on by the legislature? It strikes me as there may need to be greater checks and balances on this practice, I don’t care who is in power. I realize that it is not a perfect solution, maybe even a logistical nightmare considering the bureaucracies inability to write intelligible regulations.

  • http://lutherama.blogspot.com Dr. Luther in 21st Century

    I wonder should agency regulations be voted on by the legislature? It strikes me as there may need to be greater checks and balances on this practice, I don’t care who is in power. I realize that it is not a perfect solution, maybe even a logistical nightmare considering the bureaucracies inability to write intelligible regulations.

  • Rose

    One last post on end-of-life.
    There is a new Hippocratic Oath reportedly used in some medical schools with the paragraph:
    “Most especially must I tread with care in matters of life and death. If it is given me to save a life, all thanks. But it may also be within my power to take a life; this awesome responsibility must be faced with great humbleness and awareness of my own frailty. Above all, I must not play at God.”

  • Rose

    One last post on end-of-life.
    There is a new Hippocratic Oath reportedly used in some medical schools with the paragraph:
    “Most especially must I tread with care in matters of life and death. If it is given me to save a life, all thanks. But it may also be within my power to take a life; this awesome responsibility must be faced with great humbleness and awareness of my own frailty. Above all, I must not play at God.”

  • Joe

    tODD wrote: “As I understand it (can you tell I’m a little shaky on these matters?), the administration didn’t issue a rule that flatly gainsayed a law passed by Congress, but rather passed a rule that had not made it into a law. That’s quite a difference!

    Anyhow, all Congress has to do is pass a law prohibiting this rule or its effects from taking place, don’t they? They almost did that in the first place, but it never made it to the Senate floor. If the rule is so unpopular, why doesn’t Congress just do that? I don’t get it.”

    The problem is that the president could veto the law saying you can’t have this rule. Thus, Congress would be foreclosed from fixing the overreach. So you have a congress that expressly declined to create by law the rule that is now being enacted and the Congress has no way to remedy that. That is a problem.

    Legally, the rule may be subject to a challenge anyway. All rules must derive their power from a specific statute enabling the administration to enact the rule. If will be an interesting argument for the agency to claim that it was given the power to create by regulation something that the congress expressly rejected.

  • Joe

    tODD wrote: “As I understand it (can you tell I’m a little shaky on these matters?), the administration didn’t issue a rule that flatly gainsayed a law passed by Congress, but rather passed a rule that had not made it into a law. That’s quite a difference!

    Anyhow, all Congress has to do is pass a law prohibiting this rule or its effects from taking place, don’t they? They almost did that in the first place, but it never made it to the Senate floor. If the rule is so unpopular, why doesn’t Congress just do that? I don’t get it.”

    The problem is that the president could veto the law saying you can’t have this rule. Thus, Congress would be foreclosed from fixing the overreach. So you have a congress that expressly declined to create by law the rule that is now being enacted and the Congress has no way to remedy that. That is a problem.

    Legally, the rule may be subject to a challenge anyway. All rules must derive their power from a specific statute enabling the administration to enact the rule. If will be an interesting argument for the agency to claim that it was given the power to create by regulation something that the congress expressly rejected.

  • http://www.toddstadler.com/ tODD

    Joe said (@21), “The problem is that the president could veto the law saying you can’t have this rule. Thus, Congress would be foreclosed from fixing the overreach.”

    Yes, well. This really fails to convince me, for several reasons. “The president could veto the law” … but Congress decided to let that particular part never make it to a vote, much less pass. So you’re asking me to be concerned about a hypothetical that hasn’t been tried. Again, it would be one thing if Congress had actually voted down something akin to the rule change, and then the administration had gone ahead and made the rule change, anyhow. But opting not to vote on something is not the same as voting no on it, and I feel it’s misleading of you to say that “Congress expressly rejected” this idea.

    And besides, Congress can override a veto, no? So, even in this hypothetical situation of yours, it would hardly be true that “Congress has no way to remedy that.” They do. And what’s more, all checks and balances have an end — they do not go on checking and balancing ad infinitum. You might as well complain that it’s “a problem” that the President can’t override Congress’ veto. But you’re not making that claim. Why?

    All that said, I’m fine with what you said in your final paragraph, other than the “expressly rejected” bit.

  • http://www.toddstadler.com/ tODD

    Joe said (@21), “The problem is that the president could veto the law saying you can’t have this rule. Thus, Congress would be foreclosed from fixing the overreach.”

    Yes, well. This really fails to convince me, for several reasons. “The president could veto the law” … but Congress decided to let that particular part never make it to a vote, much less pass. So you’re asking me to be concerned about a hypothetical that hasn’t been tried. Again, it would be one thing if Congress had actually voted down something akin to the rule change, and then the administration had gone ahead and made the rule change, anyhow. But opting not to vote on something is not the same as voting no on it, and I feel it’s misleading of you to say that “Congress expressly rejected” this idea.

    And besides, Congress can override a veto, no? So, even in this hypothetical situation of yours, it would hardly be true that “Congress has no way to remedy that.” They do. And what’s more, all checks and balances have an end — they do not go on checking and balancing ad infinitum. You might as well complain that it’s “a problem” that the President can’t override Congress’ veto. But you’re not making that claim. Why?

    All that said, I’m fine with what you said in your final paragraph, other than the “expressly rejected” bit.


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