Environmental Protection Agency Seal

Written with Jane Robbins

We have brought a constitutional crisis upon ourselves that is bleeding our liberties dry.

The federal bureaucracy has amassed such immense power that Congress can no longer provide, as President Washington termed it, the necessary “reciprocal checks” against its exercise of power.  Federal spending has increased from $1.38 trillion in 1992 to $3.73 trillion in 2012.  The federal debt now exceeds the Gross Domestic Product—the economy’s total output.

As a result, Congress must spend increasingly more time on “maintenance” work –budgets and authorizing bills.  It has had to toss by the wayside its duty to provide a check against unbridled executive power.

All this gives Congress an aura of weakness and ineptitude, even where funding is not directly involved such as with unauthorized executive appointments.  The President fully appreciates this, boldly proclaiming,“[W]here Congress is not willing to act, we’re going to go ahead and do it ourselves.”  He treats Congress as nothing more than a feckless advisory board.

True to his word, the President has repeatedly usurped the role of the legislature in flagrant disregard of the Constitution.  He has ignored standing law by, for example, engineering national curriculum standards.  He has issued new regulations that are contrary to federal law, for example regulations that obliterate statutory student and family privacy protections.  Under his leadership, the Environmental Protection Agency has assumed for itself the power to dictate new fuel-economy standards for American automakers by simply declaring carbon dioxide a “pollutant.”  And the IRS has proposed a rule to “correct” a problematic portion of the Obamacare statute, bypassing Congress out of fear that it might overhaul the statute rather than just change the one provision. The legislation-by-bureaucrat goes on and on.

But the Administration has usurped power through even more audacious techniques, as detailed in a recent report from the House Committee on Oversight and Government Reform.  Through these devices, federal agencies have changed policy under the radar, without issuing proposed rules that trigger public comment and congressional scrutiny.  By the time anyone notices, the law has morphed into something wholly unfaithful to congressional intent.  The report concluded that “[t]he regulatory process is broken, being manipulated and exploited in an effort to reward allies of the Obama Administration such as environmental groups, trial lawyers, and unions.”  It is a state of lawlessness utterly at odds with the Constitution and with our unalienable right to govern ourselves.

 One way this is happening is through misuse of “guidance documents,” the lawful purpose of which is to clarify existing regulations.  Because they aren’t subject to the public notice and comment process, they aren’t technically binding.  But they are given weight by courts, which pressures those subject to them to treat them as a regulation.  One of the worst abusers here is, again, the EPA.  Through guidance documents, the agency has fundamentally rewritten regulations governing surface coal-mining operations, greatly reducing the number of companies capable of complying with the tougher standard.  Even EPA Administrator Lisa Jackson described the new guidance as a “sweeping regulatory action” – a definition that can never be properly applied to a guidance document. A federal district court struck down the EPA’s “guidance.”

 Another technique for the lawless change of statute is the misuse of the emergency rulemaking process.  Agencies issue “interim final rules” that take effect immediately upon publication, usually as a result of an emergency circumstance, but which may change later after public comment.  As the House report reveals, the Administration repeatedly assumes an emergency.  It has done so, for example, in imposing its Obamacare rules, especially those governing whether current health plans will be grandfathered or subjected to onerous new requirements.  “Interim final rules” have gone into effect, but it’s anyone’s guess whether, or how, they will change in the future.  So we end up with not only lawless rules, but also paralysis among providers that must comply with them.

An especially creative method for changing the law with minimal detection is something dubbed “sue and settle” agreements.  Under this scheme, a special interest group sues an agency to prevent enforcement of a rule it doesn’t like.  Instead of defending the rule in litigation, the agency settles the case by agreeing to issue a different rule.  The new rule, of course, is negotiated solely by the agency and the plaintiff special interest.  An example of this scheme is the decision of the EPA to settle a lawsuit by rewriting a lead-paint rule.

These are precisely the types of abuse of power that Congress should “check.”  Though over-burdened,  Congress must take systemic action to re-establish constitutional integrity. Failure to rein in the executive branch’s unconstitutional usurpation of power means, quite literally, the end of our existence as a self-governing people.  But can Congress stop a run-away stagecoach careening down a mountainside?

Emmett McGroarty, Esq., is Executive Director of the Preserve Innocence Initiative at the American Principles Project. Jane Robbins, Esq. is a Senior Fellow with the American Principles Project. 

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