Commentary Magazine


What Congress?

I’ve written in recent months about the antidemocratic trend of the government “legislating” not through the Congress but through unelected, unaccountable bureaucrats. To be sure, federal agencies often have the appropriate delegated authority to set regulations, but it has become far too common for the executive branch to empower bureaucrats specifically to get around the fact that their objectives would be or have been rejected through the democratic process.

Because liberals are far more enamored of the regulatory state than conservatives are, and because we currently have divided government, the temptation to do this has been especially great for President Obama. As I argued in July, this was key to understanding why Democratic Senate Majority Leader Harry Reid was threatening to “go nuclear” and change Senate rules on the fly to eliminate the filibuster for certain executive branch nominees–not over judicial nominees or legislation. Today, the Hill provides us with a story that confirms this:

President Obama has assembled a new cadre of lieutenants to enact policy shifts through regulation during his second term.

Many of the agency heads and top-ranking officials will be tasked with implementing scores of federal rules that will help shape Obama’s legacy. 

“In general, in a political environment in which passing new legislation is very difficult, most of the policy action is likely to come through actions taken within the executive branch,” said Philip Wallach, a fellow at the Brookings Institution. “Much of that is going to be regulation.”

The “centerpiece” of this regulatory onslaught, the Hill tells us, will be new carbon emissions rules designed to address global warming. This was so unpopular and politically untenable that Obama couldn’t get cap-and-trade legislation passed early in his first term when Democrats controlled both houses of Congress. After former Environmental Protection Agency director Lisa Jackson left her post for a job with Apple, I wrote about her history of authoritarian regulation, which no doubt put her on the administration’s radar years ago. I quoted Joseph Rago’s characterization of her as “an especially abusive and willful regulator, even for the Obama administration, and her epic rule-making bender continues to drag on economic growth.”

So it’s no surprise that the EPA figures so strongly into Obama’s plans to replace Congress with his unaccountable apparatchiks at the agency. More interesting, and more controversial, is another agency the Hill claims will be involved in this:

In the span of three days in mid-July, the Senate confirmed Labor Secretary Thomas Perez, Consumer Financial Protection Bureau (CFPB) Director Richard Cordray and Environmental Protection Agency (EPA) Administrator Gina McCarthy.
All three oversee agencies with significant rulemaking authority, and are seen as likely to regulate with gusto….

Observers expect the two-year-old CFPB to remain on the offensive as officials tackle new regulations for prepaid cards, debt services and payday loans.
“I don’t think its going to be like this forever but I think in the near term, while Cordray is in office, I can’t imagine that he’s going to take his foot off the accelerator,” said Alan Kaplinsky, a partner at the law firm of Ballard Spahr.

Now why would Cordray work so feverishly to cement his vision of the regulatory state? Because, as the Hill reminds us, Cordray was appointed “in controversial fashion.” Republicans were opposed to confirming Cordray, so Obama declared the Senate to be in “recess” when it unquestionably was not and then made a recess appointment. As Adam White explained, and as his headline blared, this was “An Unconstitutional Appointment to an Unconstitutional Office.” Yes, per the Hill, it was a “controversial” appointment, but it was also a delusional exercise of nonexistent power by a supposed constitutional law expert.

Cordray’s appointment was made on the same day as other magical “recess” appointments that the courts have rightly ruled unconstitutional, and on which the Supreme Court will eventually rule. That casts doubt on whether Cordray’s appointment will escape judicial oversight. In the meantime, he is going full speed ahead so that if his appointment is invalidated his unconstitutional power grab will be difficult to untangle.

And although President Obama’s obsession with control would suggest that these regulations are getting his careful consideration, the Hill story indicates otherwise. When the president was approached by a Republican senator recently about various regulations, he was told to talk instead to Denis McDonough, the chief of staff, who “has emerged as a major player in regulatory decisions.”

Should the American people be worried that McDonough has only been chief of staff since January, and is thus not terribly experienced in this regard? Not at all–the Hill tells us that before coming to the White House, McDonough worked at the liberal Center for American Progress as a global warming advocate. Were the senator’s concerns even addressed by McDonough? Apparently the senator followed up but “there has been no response from the White House.” That, I suppose, is to be expected; in this regulatory strategy, the existence of Congress is irrelevant. It follows that the concerns of a member of Congress would be treated as such.

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