Above Democracy, And The Rule Of Law
Peter Ferrara
Contributor
I am Director of Entitlement and Budget Policy for the Heartland Institute, General Counsel of Americans for Tax Reform, and Senior Fellow for the Carleson Center for Public Policy. I served in the White House Office of Policy Development under President Reagan, and as Associate Deputy Attorney General of the United States under President George H.W. Bush. I am a graduate of Harvard College and Harvard Law School, and the author most recently of America's Ticking Bankruptcy Bomb (New York: Harper Collins, 2011). I write about new, cutting edge ideas regarding public policy, particularly concerning economics.
The author is a Forbes contributor. The opinions expressed are those of the writer.
In 2010, the American people delivered a stinging rebuke to President Obama. The 63 seat Republican gain in the House was a New Deal size landslide, harking back to a time when America was choosing a fundamental change of course. In the Senate, Republicans came back from a minority unable to even mount a filibuster to within three seats of the Democrats, after some party infighting fumbled away a couple of quite possible wins.
For Democrats, that does not bode well for a 2012 election with 23 Democrat Senate seats at stake, and a filibuster proof Republican majority possible by winning only half of those. The people elected these Republicans in 2010 to stop the emergent Obama agenda, not to cooperate in its advancement.
But President Barack Obama refused to heed the people and change course. The election results only changed the means by which he has pursued the most left wing policies of any President in U.S. history. Recognizing that he could no longer advance his agenda through Congress, Obama pivoted to maximizing the vast regulatory powers of the Executive Branch.
For example, since cap and trade legislation obviously no longer had any prayer of getting through Congress (even the overwhelmingly Democrat Congress of 2009-2010 wouldn’t pass it), Obama said after the election, “Cap and trade was just one way of skinning the cat; it was not the only way. It was a means, not an end.” Sometimes this pivot has involved ignoring legal rulings, breaking agreements with Congress, and exceeding statutory authority.
Phil Kerpen understands Barack Obama and what he is up to better than almost anyone else in the country. Kerpen is vice president for policy at the grassroots free market organization Americans for Prosperity and author of the new book Democracy Denied: How Obama is Ignoring You and Bypassing Congress to Radically Transform America – and How to Stop Him (BenBella Books, October 2011).
As Kerpen writes, “In the face of an unprecedented wave of public discontent expressed at the ballot box and throughout his time in office, Obama has remained committed to an extreme left wing agenda.” But, “Unfortunately, for decades Congress has been delegating away its legislative power to bureaucratic agencies that Obama is now using to bypass Congress and the American people to pursue his agenda.” That includes moving “forward to impose huge ‘cap-and-trade’ style energy taxes via Environmental Protection Agency regulation, to use his friends at the Federal Communications Commission to regulate the Internet, and to pursue his failed union agenda at the National Labor Relations Board.”
Kerpen discusses in detail the FCC’s adoption of net neutrality regulations on December 21, 2010. The foundation for those regulations is that the companies that invest in and build the Internet infrastructure can’t be trusted to manage it, arbitrarily favoring some users over others. So the government needs to step in and manage it, eventually taking over control of the ‘Net.
Of course, the experience has been that under private management in the competitive market, the Internet has been the freest institution in the world. But wherever the government has stepped in to control the Web, that freedom has been restricted or squelched.
Obama’s FCC appointees adopted this regulation even though just 8 months earlier the D.C. Circuit Court of Appeals ruled unanimously in Comcast v. FCC that the FCC has no statutory authority for it. Kerpen also notes that in the 2010 Congressional campaigns, 95 candidates signed the pledge of the Progressive Change Campaign Committee to promote Net Neutrality and Internet regulation, and all 95 lost. Moreover, a bill introduced in Congress to provide FCC authority for such regulation garnered only 27 co-sponsors.
Yet Obama continues to implement such regulation heedless of the people, the courts and Congress.
Similar lawlessness occurred in the offshore drilling moratorium imposed by Obama’s Interior Dept. in response to the 2010 Gulf oil spill. Kerpen recounts that Obama appointed an expert task force to make recommendations concerning how the federal government should respond to the spill. The task force report featured a recommendation for a six month moratorium on all deepwater drilling activities. But as Kerpen explains, “the recommendation for a moratorium was not supported by the authors of the task force report.” Task force authors wrote in a letter to Louisiana Governor Bobby Jindal and Senators David Vitter and Mary Landrieu, saying:
[W]e are concerned that our names are connected with the moratorium as proposed in the executive summary of the report. There is an implication that we have somehow agreed to or “peer reviewed” the main recommendation of that report. This is not the case….[T]he scope of the moratorium on drilling which is in the executive summary differs in important ways from the recommendation in the draft which we reviewed. We believe the report does not justify the moratorium as written and that the moratorium as changed will not contribute measurably to increased safety and will have immediate and long term economic effects.
Kerpen reports in the book that the Executive Summary for the report was rewritten to endorse the moratorium by the staff of White House energy czar Carol Browner. President Obama then used his staff rewritten task force report to justify the offshore drilling moratorium “with full knowledge that it would put more than 23,000 Americans out of work at a time of record high unemployment.” This is yet another example of the Obama public relations style I have called “calculated deception,” more worthy of a third world authoritarian government than the world’s leading liberal democracy.
Kerpen continues, explaining, “On June 23, 2010, U.S. District Judge Martin Feldman issued a stinging 22 page decision, issuing an injunction to overturn the moratorium based on the political manipulation and the Interior Department’s utter failure to justify the breadth of the moratorium.” Judge Feldman wrote regarding the studies Interior cited for the moratorium:
How these studies support a finding that shear equipment does not work consistently at 500 feet is incomprehensible. If some drilling equipment parts are flawed, is it rational to say all are? Are all planes a danger because one was? All oil tankers like Exxon Valdez? All trains? All mines? That sort of thinking seems heavy-handed and rather over-bearing.
The Fifth Circuit Court of Appeals then rejected the Obama Administration’s request for a stay of Feldman’s ruling. Yet Obama’s Interior Secretary Ken Salazar “reimposed a very similar moratorium disregarding the rulings of the two courts,” Kerpen reports. Salazar imperiously pronounced, “We will only lift the moratorium when I as Secretary of Interior am comfortable that we have significantly reduced those risks.” Salazar and the Interior Department were held in contempt of court by Feldman, to no avail.
Kerpen provides another example of Obama Administration authoritarianism backed by double talk. When he was a candidate, Obama lambasted Bush’s practice of “signing statements,” objecting to parts of legislation he was signing as unconstitutional and so refusing to enforce them. Candidate Obama said:
This is part of the whole theory of George Bush that he can make laws as he is going along. I disagree with that. I taught the Constitution for 10 years. I believe in the Constitution and I will obey the Constitution of the United States. We are not going to use signing statements as a way of doing an end run around Congress.
But just weeks after taking office, Obama reversed himself on signing statements, saying they involved “a legitimate constitutional function, and one that promotes the value of transparency, to indicate when a bill that is presented for presidential signature includes provisions that are subject to well founded constitutional objections.”
Obama soon provided an egregious example of his new position. In the April, 2011 budget deal to avoid a government shutdown, he agreed to language blocking funding for several of his most controversial policy czars, Kerpen reports. But on April 15, 2011, Obama issued a signing statement on the compromise government funding bill reneging on the agreement, saying, “Section 2262 of the Act would prohibit the use of funds for several positions that involve providing advice directly to the President….Therefore, the executive branch will construe section 2262 not to abrogate these Presidential prerogatives.”
Who gives advice to the President may be a Presidential prerogative. But the President has no prerogative to agree to a deal with Congress on funding for those positions, and then to refuse to abide by the deal.
Kerpen’s book continues to discuss Obama Administration regulatory abuses and counterproductive misjudgments in full detail. Such overregulation and its costs is one of the reasons America has suffered no recovery after the last recession on the historical time scale for the American economy.
But Kerpen doesn’t just complain. He offers good, long overdue solutions, leading with the REINS Act (Regulations from the Executive in Need of Scrutiny). As Kerpen explains, that legislation proposed by Rep. Geoff Davis (R-KY) and Sen. Rand Paul (R-KY) “cuts to the heart of abuse of regulatory power by requiring any major regulatory action to receive the approval of the House and Senate as well as the signature of the president before it can take effect.”
That would restore the Constitution to control over regulation, which states in Article I, Section I, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.” Kerpen adds, “In Federalist 47, James Madison explained that the U.S. Constitution was written to avoid the danger of legislative and executive power being fused by prohibiting the executive from making laws…Yet we now have precisely the situation that Madison and the other framers wanted to avoid. We have regulators who are effectively writing and executing their own laws.”
The Republican controlled House is expected to pass the REINS Act within this year. Nobody knows what the Democrat controlled Senate will do, or even whether it will allow a vote on the measure.
Kerpen further advises that “We must repeatedly and unrelentingly…deliver these two messages to Congress: You can delegate authority, but you can never delegate responsibility. If you fail to stop out-of-control regulators, voters will hold you accountable.” That is a powerful message coming from one of the nation’s most effective grassroots organizations.
Kerpen has written the best book available on Obama Administration regulatory abuse and excess. It is a must-read for every informed voter.
