Supremes reject Obama’s “recess” appointments

The Constitution’s balance of powers is re-asserting itself.  President Obama had been appointing officials that need Senate approval by doing so during holidays when Senators were out of town.  Since the Constitution allows for temporary appointments when the Senate is in recess (back when the Senate was a part time body with long periods between sessions), the President claimed these short holiday breaks constituted a “recess,” even though the Senate was still in session.

The Supreme Court has ruled–unanimously!–that these appointments  are illegal.  The Judicial branch is reining in the Executive Branch in its attempts to exert its power at the expense of the Legislative branch.  The Constitution still works. [Read more...]

When the president does it, it’s not illegal

Those who oppose Obamacare may well be glad that the President keeps delaying the implementation of parts of the law (namely, the employer mandate and the limits on out-of-pocket expenses).  But there is a deeper issue:  The law says that these measures are to go into effect in 2014.  But now the President says, “no they won’t.”  By what authority can the President just change a Constitutionally-enacted law?

George Will says that the President’s increasing habit of by-passing Congress, ignoring laws, and legislating by Executive fiat is an example of the flagrantly unconstitutional principle affirmed by Richard Nixon :  “When the president does it, that means it is not illegal.” [Read more...]

Green lawmaking by executive order

President Obama, being unable to get his environmental and anti-global warming agenda through Congress, has announced that he will impose it by executive order.  After all, the bureaucracies and regulatory agencies of the Executive branch have become the nation’s de facto lawmakers anyway.  So why do we need Congress when the president can rule by fiat? [Read more...]

Congress letting bureaucrats make the laws

Another practice in which Congress evades its constitutional responsibilities:  Passing laws that consist largely of vague frameworks and enabling bureaucrats from the executive branch to fill in the blanks with the substance of the law.  George Will on a bill that would put regulations back under Congressional scrutiny:

John Marini of the University of Nevada, Reno, writes in the Claremont Review of Books that the 2,500-page Obamacare legislation exemplifies current lawmaking, which serves principally to expand the administrative state’s unfettered discretion. Congress merely established the legal requirements necessary to create a vast executive-branch administrative apparatus to formulate rules governing health care’s 18 percent of the economy.

The Hudson Institute’s Chris DeMuth, in an essay for National Affairs quarterly, notes that Congress often contents itself with enacting “velleities” such as the wish in the 900-page Dodd-Frank financial reform act that “all consumers have access to markets for consumer financial products and services . . . [that are] fair, transparent, and competitive.” How many legislators voting for the bill even read this language? And how many who did understood that they were authorizing federal rulemakers to micromanage overdraft fees? In Dodd-Frank, Obamacare and much else, the essential lawmaking is done off Capitol Hill by unaccountable bureaucratic rulemaking.

via A check on the regulatory state – The Washington Post.

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..


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