Rule of Law vs. Regulatory Power

[boedicca]

Mark Steyn hit the obvious nail on the head:

The hyper-regulatory state is unrepublican. It strikes at one of the most basic pillars of free society: equality before the law. When you replace "law" with "regulation," equality before it is one of the first casualties. In such a world, there is no law, only a hierarchy of privilege more suited to a sultan's court than a self-governing republic. If you don't want to be subject to "tooth-level surveillance," you better know who to call in Washington. Teamsters Local 522 did, and the United Federation of Teachers, and the Chicago Plastering Institute. And as a result they've all been "granted" ObamaCare "waivers." Rule, Obama! Obama, waive the rules! If only for his cronies. Americans are being transferred remorselessly from the rule of law to rule by an unaccountable bureaucracy of micro-regulatory preferences, subsidies, entitlements and incentives that determine which of the multiple categories of Unequal-Before-The-Law Second-Class (or Third-Class, or Fourth-Class) Citizenship you happen to fall into.

And yet Americans put up with it. According to the Small Business Administration, the cost to the economy of government regulation is about $1.75 trillion per annum. You and your fellow citizens pay for that – and it's about twice as much as you pay in income tax. Or, to put it another way, the regulatory state sucks up about a quarter-trillion dollars more than the entire GDP of India. As fast as India's growing its economy, we're growing our regulations faster. Oh, well, you shrug, it would be unreasonable to expect the bloated, somnolent hyperpower to match those wiry little fellows back at the call center in Bangalore. Okay. It's also about a quarter-trillion dollars more than the GDP of Canada. Every year we're dumping the equivalent of a G7 economy into ever more ludicrous and wasteful regulation.

Mark Steyn: Cowed by udderly insane regulations - Orange County Register


When we say "It's the Spending Stupid", the real issue is "It's the Regulatory Excess, stupid". There is no way to cut spending without dismantling the Regulatory Bureaucracy.

At bottom, the biggest threat to our Liberty is the army of faceless bureaucrats who dole out favors and punishments in a political and cronyist manner.

 

[cpduprovider]

There is only one way to make the government follow the Constitution - FORCE.

Americans' Demand for Redress of Grievances

Before It's News

 

[dblack]

Couldn't agree more, but I also think it's important to encompass the morass of social manipulation we implement via the tax code in the discussion. Tax 'incentives' and the like have become an essential 'tool' for power-hungry statists. And the really frustrating thing is that so many people, people who might otherwise be sensitive to overreaching government, fall for it when it's packaged as a 'perk' or a 'bonus'.

We have to get it through our heads that tax incentives are functionally no different than mandates. The debate over the individual mandate has provided us all a valuable service by highlighting this equivalence. It might sound like a harmless little 'bonus' to give tax credits to people for doing something the state thinks we should do, but there is exactly no difference (beyond the psychological ploy) between a tax incentive for someone who does as they're told, and a penalty for the rest of us who don't.

In my opinion, the widespread habit (at all levels of government) of using taxation as an 'implied power' to dictate behavior is the single greatest threat to equal protection. I'd like to see constitutional amendment that bans the practice outright. Taxes are for financing legitimate government services - not pushing people around.

 

[Greenbeard]

The hyper-regulatory state is unrepublican. It strikes at one of the most basic pillars of free society: equality before the law. When you replace "law" with "regulation," equality before it is one of the first casualties.

Regulations do not "replace" laws, regulatory authority stems from laws. The legislative body makes a broad policy directive in a piece of legislation and specifically delegates, in that piece of legislation, authority to subject matter experts in the executive branch to operationalize them through the rulemaking process (which, incidentally, is also defined in statute).

 

[The Rabbi]

The hyper-regulatory state is unrepublican. It strikes at one of the most basic pillars of free society: equality before the law. When you replace "law" with "regulation," equality before it is one of the first casualties.

Regulations do not "replace" laws, regulatory authority stems from laws. The legislative body makes a broad policy directive in a piece of legislation and specifically delegates, in that piece of legislation, authority to subject matter experts in the executive branch to operationalize them through the rulemaking process (which, incidentally, is also defined in statute).

Only in theory.
IN actual practice the regulators can implement pretty much what they want and say they are following the law. The EPA is a good example of this, regulating carbon dioxide even though that was not the will of Congress and is contrary to judicial finding.

 

[boedicca]

If laws were sacrosanct, there wouldn't be any Regulatory Waivers from Obamacare.

Just sayin'.

 

[Greenbeard]

IN actual practice the regulators can implement pretty much what they want and say they are following the law. The EPA is a good example of this, regulating carbon dioxide even though that was not the will of Congress and is contrary to judicial finding.

Contrary to judicial finding? A Supreme Court ruling is the reason the EPA is compelled to regulate carbon dioxide as a greenhouse gas under the Clean Air Act.

If laws were sacrosanct, there wouldn't be any Regulatory Waivers from Obamacare.

That's one of the points of delegating to the executive branch--it has the resources and expertise to incorporate flexibility in the legislature's edicts to minimize unintended consequence where directed. So in your example, the Congress wanted to prohibit health plans from imposing annual benefit limits (or rather, they wanted to gradually phase out annual benefit limits between now and 2014). But obviously that has the potential to be disruptive, particularly since a small minority of plans are designed in particular to have extremely low annual benefit limits, so the Congress directed the executive branch to (in the interim period between now and 2014) include mechanisms in the implementation of the annual limit provision to ensure "that access to needed services is made available with a minimal impact on premiums."

The job of the executive branch is to reconcile these kinds of competing demands from Congress to produce something workable.

 

[Wiseacre]

The following is from Boedy's link in the OCR, talkin' about Cass Sunstein.

Oh, no, wait. Actually, Covert Operative Sunstein passes his day doing more or less what the sign on the door says: He collects information about regulatory affairs. More specifically, he is charged by the president with "an unprecedented government-wide review of regulations" in order to "improve or remove those that are out-of-date, unnecessary, excessively burdensome or in conflict with other rules."

How many has he got "removed" so far? Well, last week he took to the pages of The Wall Street Journal to crow that dairy farmers will henceforth be exempted from the burdens of a 1970s EPA-era directive classifying milk as an "oil" and subjecting it, as Professor Sunstein typed with a straight face, "to costly rules designed to prevent oil spills." But Ol' MacDonald and his crack team of Red Adair-trained milkmaids can henceforth relax because now, writes Prof Sunstein, Washington is "giving new meaning to the phrase, 'Don't cry over spilled milk.'"


Me:
That 1.7 trillion number that Steyn quoted? We're still adding loads of new regulations into the National Registry, so the costs of compliance ain't going down, it's going up. And you wonder why the economy isn't getting better. Well, there's one answer.

 

[thereisnospoon]

The hyper-regulatory state is unrepublican. It strikes at one of the most basic pillars of free society: equality before the law. When you replace "law" with "regulation," equality before it is one of the first casualties.

Regulations do not "replace" laws, regulatory authority stems from laws. The legislative body makes a broad policy directive in a piece of legislation and specifically delegates, in that piece of legislation, authority to subject matter experts in the executive branch to operationalize them through the rulemaking process (which, incidentally, is also defined in statute).

Perhaps 20 years ago one could get away with such doublespeak or speaking without saying anything. No more.
I must say your post there was a grand effort to do just that. You presented your post in a manner of expressing substance, yet were careful to not post anything meaningful.
This is the same as the tripe we get from elected officials who when challenged with a pointed question either glare at the questioner with utter contempt or offer a response which evades the question in it's entirety.

 

[boedicca]

All Greenbeard is doing is providing more evidence that our government is out of control. The more power it consolidates unto itself, the more we must seek permission to go about our personal lives.

 

[boedicca]

The hyper-regulatory state is unrepublican. It strikes at one of the most basic pillars of free society: equality before the law. When you replace "law" with "regulation," equality before it is one of the first casualties.

Regulations do not "replace" laws, regulatory authority stems from laws. The legislative body makes a broad policy directive in a piece of legislation and specifically delegates, in that piece of legislation, authority to subject matter experts in the executive branch to operationalize them through the rulemaking process (which, incidentally, is also defined in statute).

Perhaps 20 years ago one could get away with such doublespeak or speaking without saying anything. No more.
I must say your post there was a grand effort to do just that. Look like you posted something of substance yet were careful to not post anything meaningful.
This is the same as the tripe we get from elected officials who when challenged with a pointed question either glare at the questioner with utter contempt or offer a response which evades the question in it's entirety.

In other words, Government has gotten to the point where it is Too Big To Succeed.

Adding more complexity just makes it worse.

 

[Greenbeard]

Perhaps 20 years ago one could get away with such doublespeak or speaking without saying anything. No more.
I must say your post there was a grand effort to do just that. Look like you posted something of substance yet were careful to not post anything meaningful.

Let me try and put it more simply.

Our laws--the things passed by our elected representatives--are full of phrases like "the Secretary shall..." that effectively say "we want Policy X and we direct the bureaucrats in the executive branch to make it so." Thus, regulations are not an encroachment on legislative power, they are expressly called for in legislation passed by our elected representatives to fill in the gaps in legislation left by our legislators' lack of imagination and expertise.

 

[boedicca]

And shame on Congress for lazily passing such vague laws that give unlimited power to unelected bureaucrats.

 

[Greenbeard]

In other words, Government has gotten to the point where it is Too Big To Succeed.

If that's the way you view it, the world reached that point by the early 19th century when the modern bureaucratic state was born. You may find modern society unpleasant, but there's absolutely no prospect of returning to that bucolic 17th century society, barring a major catastrophe that erases most of the features of the industrial and post-industrial society.

 

[dblack]

And shame on Congress for lazily passing such vague laws that give unlimited power to unelected bureaucrats.

And shame on the Supreme Court for not calling them on it.

 

[thereisnospoon]

IN actual practice the regulators can implement pretty much what they want and say they are following the law. The EPA is a good example of this, regulating carbon dioxide even though that was not the will of Congress and is contrary to judicial finding.

Contrary to judicial finding? A Supreme Court ruling is the reason the EPA is compelled to regulate carbon dioxide as a greenhouse gas under the Clean Air Act.

If laws were sacrosanct, there wouldn't be any Regulatory Waivers from Obamacare.

That's one of the points of delegating to the executive branch--it has the resources and expertise to incorporate flexibility in the legislature's edicts to minimize unintended consequence where directed. So in your example, the Congress wanted to prohibit health plans from imposing annual benefit limits (or rather, they wanted to gradually phase out annual benefit limits between now and 2014). But obviously that has the potential to be disruptive, particularly since a small minority of plans are designed in particular to have extremely low annual benefit limits, so the Congress directed the executive branch to (in the interim period between now and 2014) include mechanisms in the implementation of the annual limit provision to ensure "that access to needed services is made available with a minimal impact on premiums."

The job of the executive branch is to reconcile these kinds of competing demands from Congress to produce something workable.

Here lies the problem. While the EPA now has a bludgeon to wave at any one or any business it chooses. Their newfound weaponry is not based on science or anything beyond theory, it based on a legal opinion of the 9 Wise men in Washington. As a matter of fact it was only 5 of them.
So now we have the EPA, an unelected body made up of politically appointed non accountable to the people bureaucrats who at the stroke of a pen can create rules which can and quite often do, dig even deeper into the pockets of consumers.
The EPA now has political power as well. If the EPA board members want to say, do one of the members a favor by leaning on a particular business that some senator or representative says is making life difficult for a business in HIS state or district, the EPA now has absolute authority to bring pressure to bear. While the EPA has the power to enforce regulations and create new ones itself, the EPA is highly UN regulated. In other words, there's no one watching the watchers.
Absolute power corrupts absolutely.

 

[C_Clayton_Jones]

As Greenbeard has correctly noted:

Regulatory activity is authorized in the context of the rule of law – they are not co-equal entities. The courts have been reviewing regulatory legislation for constitutional compliance since the late 1930s through today with the Healthcare Reform Act the most recent example. If Steyn, you, or anyone else believes a given regulatory activity is in violation of the Constitution, file a complaint in Federal court.

As to Steyn’s bleating about the cost of regulation, it’s irrelevant to the discussion of the constitutionality of regulation per the rule of law. This is a matter for Congress to address in its role of fiscal oversight. Contact your representatives accordingly.

 

[boedicca]

In other words, Government has gotten to the point where it is Too Big To Succeed.

If that's the way you view it, the world reached that point by the early 19th century when the modern bureaucratic state was born. You may find modern society unpleasant, but there's absolutely no prospect of returning to that bucolic 17th century society, barring a major catastrophe that erases most of the features of the industrial and post-industrial society.

False dilemma, bub. The only alternatives are not the 17th Century and 20th Century Progressive Statism.

It's not surprising that you employ that disingenuous Obama-style deflection.

 

[Intense]

IN actual practice the regulators can implement pretty much what they want and say they are following the law. The EPA is a good example of this, regulating carbon dioxide even though that was not the will of Congress and is contrary to judicial finding.

Contrary to judicial finding? A Supreme Court ruling is the reason the EPA is compelled to regulate carbon dioxide as a greenhouse gas under the Clean Air Act.

If laws were sacrosanct, there wouldn't be any Regulatory Waivers from Obamacare.

That's one of the points of delegating to the executive branch--it has the resources and expertise to incorporate flexibility in the legislature's edicts to minimize unintended consequence where directed. So in your example, the Congress wanted to prohibit health plans from imposing annual benefit limits (or rather, they wanted to gradually phase out annual benefit limits between now and 2014). But obviously that has the potential to be disruptive, particularly since a small minority of plans are designed in particular to have extremely low annual benefit limits, so the Congress directed the executive branch to (in the interim period between now and 2014) include mechanisms in the implementation of the annual limit provision to ensure "that access to needed services is made available with a minimal impact on premiums."

The job of the executive branch is to reconcile these kinds of competing demands from Congress to produce something workable.

Wow, when I abandon reality, I get that, but it's only temporary, until my senses kick back in.
CO2 the great evil. Maybe you should just hold your breath? By your reasoning Air must be evil. Water must be Evil. Dirt and Rock must be evil too. Fuck, let's just pass a law regulating them also. How about Light, Darkness, Heat, Cold, Why not tax that too? Government is your God, right??? Government is your tool to steal Liberty from your Neighbor, right??? If you are going to extort, why stop half way???
CO@ is a Refrigerant, you know that, right??? It is also nontoxic. Why is that ignored??? I hear that High Tide and Low Tide contribute to Global Warming, so do the phases of the Moon. Maybe you can work on a Court Injunction for a Cease and Desist Order. Burn it at your Alter.

When does your B plan kick in, you know, the Mass Graves for All who question the Plan, or don't show enough enthusiasm???

The EPA isn't compelled to do anything or enforce anything, it does not feel like doing. Further, it protects it's cohorts, and obstructs what it wills. It is about Control, on It's own terms, which are arbitrary.

 

[dblack]

As Greenbeard has correctly noted:

Regulatory activity is authorized in the context of the rule of law – they are not co-equal entities. The courts have been reviewing regulatory legislation for constitutional compliance since the late 1930s through today with the Healthcare Reform Act the most recent example. If Steyn, you, or anyone else believes a given regulatory activity is in violation of the Constitution, file a complaint in Federal court.

The Court has already sold us down the river. That's what we're complaining about. The only way out of this, in my view, is to re-write the portions of the Constitution that have been nullified to accommodate the regulatory bloat. Call them "no, we really mean it" amendments.