regulatory fiat

Justice Anthony Kennedy is not a libertarian

Anthony Kennedy

Over the last few years, there has been much discussion about the philosophical leanings of Supreme Court Justice Anthony Kennedy. Long considered a moderate on the High Court, Kennedy has been the deciding vote in many 5 to 4 decisions, leading John Tabin of The American Spectator to note that “[i]t’s Anthony Kennedy’s world; we’re just living in it.”

Some legal scholars have surmised that the Supreme Court may be in some sort of “libertarian moment,” thanks in part to Kennedy. This is not necessarily a new theory. Shortly after the Court issued its decision in Lawrence v. Texas (2003), a ruling that struck down sodomy laws in 13 states based concerns over privacy, Randy Barnett praised Kennedy’s “presumption of liberty” approach.

Kennedy’s ideology was again the topic of discussion in 2012 after he sided with the minorty in National Federation of Independent Business v. Sebelius, in which the majority upheld the individual mandate in ObamaCare.

After the Court’s decision last month in United States v. Windsor, which struck down the federal provisions in the Defense of Marriage Act, Kennedy’s ideological views are, once again, being discussed by legal scholars.

McConnell slams Obama’s war on coal

The coal industry is a pretty big deal in several states that could serve as electoral battlefields next year. Kentucky is among them.

Even though Democrats believe that have a chance to pickoff Senate Minority Leader Mitch McConnell next year, President Barack Obama handed him a huge gift last week when he rolled out his anti-consumer energy plan, which is being labeled by opponents as a “war on coal.” Sen. Joe Manchin, a Democrat from West Virginia, another coal producing state, took it even further, calling President Obama’s a plan a “war on America.”

McConnell is seizing on President Obama’s energy plan, which completely bypasses Congress. In an op-ed to the Hazard Herald, a Kentucky-based newspaper, the Senate Minority Leader slammed the “barrage of job-killing regulations” pushed by the Obama Administration and warned Democrats of alienating “entire regions of the country” with the new environmental regulations.

Regulatory State Gone Wild

Ten Thousand Commandments

Americans spend $1.8 trillion each year — nearly $15,000 per family — complying with regulations passed down by the federal government. That’s the estimate given by the Competitive Enterprise Institute (CEI) in the latest edition of Ten Thousand Commandments: An Annual Snapshot of the Federal Regulatory State.

“The 2012 Federal Register ranks fourth all-time with 78,961 pages, but three of the top four years, including the top two, occurred during the Obama administration,” noted the statement accompanying the report. “The 2010s are on pace to average 80,000 pages per year—up from 170,000 in the 1960s and 450,000 in the ‘70s.”

“There are more federal regulations than ever—the Code of Federal Regulations, which compiles all federal regulations, grew by more than 4,000 pages last year and now stands at 174,545 pages, spread over 238 volumes. Its index alone runs to more than 1,100 pages,” CEI added. “Government has added more than 80,000 regulations in the last 20 years—3,708 in the last year alone. That’s one new rule Americans must live under every 2½ hours. Today, 4,062 sit in the pipeline. Those will add at least $22 billion in compliance costs and probably much more.”

The cost to Americans as result of the regulations is perhaps the troubling aspect of the report. But another startling point is the way in which these rules and regulations are being imposed on Americans. Because the Obama Administration cannot pass many of these regulations through Congress, it is bypassing the legislative branch altogether, meaning that there is little to no oversight by Congress.

The report also notes that there has been a jump in “economically significant rules” — those that bring $100 million or more in compliance costs — on President Obama’s watch.

Reining In Out-Of-Control Bureaucrats

Joel Aaron, Grassroots Director for the Georgia chapter of Americans for Prosperity, sent along this piece about the REINS Act, which would curtail regulations placed businesses and, ostensibly, consumers. It’s tailored to Georgia, but this is an issue that Democrats in swing districts across the country may have to contend with in 2012.

Last week, Georgia Democrats John Barrow and Sanford. D. Bishop, Jr. casted votes in favor of alleviating excessive regulatory burdens with minor procedural hindrances. Today, Georgia legislators have the opportunity to confront Washington’s over-regulation problem head-on, by supporting the Regulation from the Executive in Need of Scrutiny (REINS) Act.

The REINS Act was inspired in 2009 when Kentucky activist Lloyd Rogers approached U.S. Representative Geoff Davis after EPA water regulations had doubled his county’s taxes without so much as a congressional vote. Unelected, unaccountable bureaucrats should not have the power to make laws in this country, plain and simple. This basic, founding principle is given to lawmakers who must account for their votes and listen to the voice of the people they represent.

Rogers challenged Rep. Davis with language from the U.S. Constitution which says “all legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Rep. Davis took this challenge to Washington and thus H.R. 10, the REINS Act, has become a centerpiece of the Republican House agenda.

Resolution to Stop President’s Overreach Introduced by Tom Rice

Some of us assume that the United States Constitution is strong enough of a document to ensure that the Executive branch does not overstep its authority, but several House Republicans do not seem to think President Barack Obama got the message.

A new resolution that has been introduced by Rep. Tom Rice (R-SC) would target the President for, amongst other things, allowing a year extension to health care policies terminated as a result of the implementation of Obamacare. Republicans co-sponsoring this resolution includes Reps. Steve Stockman (R-TX), James Lankford (R-OK) and Rep. Doug Collins (R-GA), who claimed that “we have a president who once taught the Constitution who has now forgotten the Constitution.”

According to Rep. Candice Miller (R-MI), another co-sponsor of the “Stop This Overreaching Presidency Act (STOP),” nobody is entitled to rule by fiat. The Michigan conservative decided to co-sponsor the resolution “because I have watched this president overreach.”

Republican Study Committee’s chairman Rep. Steve Scalise (R-LA) said that the American people have been insulted by this administration for its willingness to write laws without Congress.

“Our country rejects the concept of dictatorship,” said Scalise.

Some of Obama’s doings tackled by this motion would be reversed if the resolution advances, including the president’s end to part of the welfare work requirements, enactment of the DREAM Act and the delay of the employer mandate.

Kentucky Republicans file brief at Supreme Court, seek to end Obama’s war on coal

Republican members of Kentucky’s congressional delegation have filed an amicus brief in a pending case at the Supreme Court which could have big implications on the Commonwealth’s coal industry and, by extension, its economy.

The case, Utility Air Regulatory Group v. Environmental Protection Agency, deals with regulations enacted by the Obama Administration in 2010 that would impose stricter limits on emissions from “stationary sources,” such as coal-fired plants. The EPA claims this authority through a 2007 Supreme Court decision, Massachusetts v. Environmental Protection Agency, which allowed the agency to regulate vehicle emissions.

The problem is that the EPA essentially re-wrote provisions of the Clean Air Act to raise the emissions threshold to 75,000 tons per year from 100 tons, which, as the Wall Street Journal recently noted, “would require some six million buildings to get environmental permits, including such grand polluters as churches and farms.”

“Recognizing that such a rule would create ‘absurd results’ like shuttering the entire economy, the EPA rewrote Congress’s numbers and adjusted the threshold to 75,000 tons from 100 tons,” the Journal explained. “EPA’s clear political purpose was to escape a large political backlash to its new rules by unilaterally limiting their reach.”

Kentucky Republicans argue that the EPA has overstepped its bounds by trying to re-write the law, thus usurping power from the legislative branch, and promulgate new rules that would hurt the coal industry.

Executive fiat is not the way to get rid of Obamacare

King Obama

For the last several months, Republicans have been heavily criticizing President Barack Obama’s use of executive orders and regulatory fiat to subvert the legislative process through executive and regulatory fiat.

President Obama has taken expansion of presidential power substantially further than is his predecessors, including President George W. Bush, and has frequently blurred constitutional lines between the legislative and executive branches. There are many examples of this, from unilateral delays of Obamacare provisions to new environmental rules created by the EPA to military engagements without the consent of Congress.

But is this new “uber executive” also the path to takedown Obamacare? Philip Klein thinks so. In a column last week at the Washington Examiner, Klein explained last week that President Obama has showed a future Republican president the way to dismantle Obamacare.

“The changes instituted by the Obama administration in response to implementation snags have ranged from perfectly legal areas of administrative discretion stemming from the vast regulatory powers granted to the HHS secretary under Obamacare, to more creative interpretations of that discretion, to Obama simply choosing to ignore parts of the law that became inconvenient,” wrote Klein.

“Obama has turned his signature legislative accomplishment into a constantly evolving wikilaw, with editing privileges restricted to himself and a few administration officials,” he jabbed. “He’s largely been able to get away with it due to the difficulties posed by gaining standing in court for legal challenges.”

LA Senate: New ad slams Landrieu over filibuster change, judicial nominees

Judicial Crisis Network:

The elimination of the filibuster for most federal court nominees has made its way into the Louisiana Senate race via a new ad released yesterday by the Judicial Crisis Network which slams Sen. Mary Landrieu (D-LA) for backing President Obama’s court appointments.

“Mary Landrieu voted for every one of Obama’s liberal activist judges. Every single one. Even the liberal justices who rubber-stamped Obamacare and voted against your Second Amendment right of armed self-defense,” says the narrator in the ad, listing names of court nominees for whom she has voted to confirm.

“Landrieu even helped change the rules to pack a key court with new liberal judges who will review Obamacare, the EPA, the IRS, and agencies is using to push his unconstitutional, job-killing agenda,” the ad continues. Tell Mary Landrieu to go to work for Louisiana, not Obama.”

Landrieu was one of 52 Democrats who voted for the filibuster rule change so that the Senate would confirm three of President Obama’s nominees to the D.C. Circuit Court of Appeals, the second most influential court in the country.

The court’s influence is due to the fact that it has broad authority to review executive-level rules and regulations. This would include regulations written by the EPA, IRS, and the Department of Health and Human Services.

Coalition urges Senate to pass REINS Act

A broad coalition of conservative and free market groups are urging members of the Senate to support a measure — the “Regulations from the Executive in Need of Scrutiny Act,” better known as the REINS Act — that would require congressional approval of executive-level agency rules that will have a costly economic impact.

“This bill restores legislative control and accountability to the federal regulatory process by providing for meaningful congressional oversight over new regulations agencies impose on the American people,” wrote the coalition of organizations to individual members of the Senate.

“It requires both houses of Congress to approve any proposed ‘major rule’ — that is, any rule likely to affect the economy by $100 million or more — before such a rule goes into effect,” the letter continues. “The REINS Act already passed the U.S. House of Representatives by a sizeable margin. It is now time for the Senate to follow suit.”

Policymakers and bureaucrats tend not to be concerned about the implications of rules created by executive-level agencies, like the EPA, for example. But these regulations create a costly compliance burden for consumers and business, which are already facing tremendous strains on their finances as the economy has limped along after the recession, with next to no accountability and only marginal oversight.

In March, the Competitive Enterprise Institute released its annual regulatory snapshot, Ten Thousand Commandments, which found that compliance cost with these rules and regulation cost $1.8 trillion in 2012, roughly $14,678 per American family. Those compliance costs, the coalition letter notes, “was more than half of all federal outlays ($3.4 trillion)” for that year.

New study details EPA’s regulatory incompetence


During a speech last month at Georgetown University, President Barack Obama outlined new anti-consumer environmental regulations that he planned to implement by executive order through the Environmental Protection Agency (EPA).

This executive-level agency, a creation of then-President Richard Nixon, has long been a thorn in the side of energy consumers, property owners, and businesses by enacting regulations often with little to no congressional oversight or pursing legal action to please the anti-capitalist, radical environmental Left. And while he is relying the agency to implement his new agenda, President Obama apparently isn’t aware of just how incompetent the EPA is.

A new study authored by William Yeatman of the Competitive Enterprise Institute shows that the EPA is six years behind its regulatory responsibilities to implement three major parts of the Clean Air Act.

“Since 1993, 98 percent of EPA regulations (196 out of 200) pursuant to these programs were promulgated late, by an average of 5.68 years (or 2,072 days) after their respective statutorily defined deadlines,” wrote Yeatman in the study. “Currently, 65 percent of the EPA’s statutorily defined responsibilities (212 of 322 possible) are past due by an average of 5.88 years (or 2,147 days).”

Yeatman notes that this matter for three different reason. First, it shows a tremendous measure of incompetence from an regulatory agency with an enormous amount of power — and there has been little in the way of accountability from Congress.


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