Rule of Law vs. Regulatory Power

[Greenbeard]

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.

Massachusetts v. EPA is not my reasoning, it's a Supreme Court ruling that addresses the EPA's responsibilities for regulating greenhouse gases under the Clean Air Act.

The EPA isn't compelled to do anything or enforce anything, it does not feel like doing.

Again, you need to be telling this to the Supreme Court, not me.

Under the Act’s clear terms, EPA can avoid promulgating regulations only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do. [...] The statutory question is whether sufficient information exists for it to make an endangerment finding. Instead, EPA rejected the rulemaking petition based on impermissible considerations. Its action was therefore “arbitrary, capricious, or otherwise not in accordance with law,” §7607(d)(9). On remand, EPA must ground its reasons for action or inaction in the statute.​

 

[thereisnospoon]

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.

Yes let us not forget that just because something may not be illegal or if one or more people or a group has a right to do something by all means be damned the consequences, full speed ahead.
So because in a strict constitutional context the EPA has this absolute authority, in your opinion, that is all that concerns you. Never mind whether certain decisions the EPA may make are not necessarily the right thing to do.
I am going to take your post's meaning as "Yes, I understand the scope and while I do not necessarily agree with the EPA's power, my position here is that under the US Constitution, the EPA has this power." That I can accept.
However if your agenda in principle is tilted to the environmentalist at all costs, then I oppose your stance 100%

 

[Intense]

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.

Massachusetts v. EPA is not my reasoning, it's a Supreme Court ruling that addresses the EPA's responsibilities for regulating greenhouse gases under the Clean Air Act.

The EPA isn't compelled to do anything or enforce anything, it does not feel like doing.

Again, you need to be telling this to the Supreme Court, not me.

Under the Act’s clear terms, EPA can avoid promulgating regulations only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do. [...] The statutory question is whether sufficient information exists for it to make an endangerment finding. Instead, EPA rejected the rulemaking petition based on impermissible considerations. Its action was therefore “arbitrary, capricious, or otherwise not in accordance with law,” §7607(d)(9). On remand, EPA must ground its reasons for action or inaction in the statute.​

That's the point GB. The Supreme Court rarely represents the Will of the Governed. It is not above the Constitution. Or is It?

 

[Greenbeard]

That's the point GB. The Supreme Court rarely represents the Will of the Governed. It is not above the Constitution. Or is It?

I suppose the question then is, what's the point of making this point? The whole thing merely highlights what I've been saying: regulation does not exist independent of legislation passed by our duly elected representatives, regulatory authority is written directly into the legislation. Which means that regulatory agencies may be compelled to promulgate regulations in response to legislation, even when they don't particularly want to.

This example was brought up to suggest that the EPA has somehow gone rogue. The reality, of course, is that it's compelled to address greenhouse gases under the terms of the Clean Air Act, as interpreted by the judiciary.

 

[Quantum Windbag]

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).

I know you are a shill for health care, but do you have to prove you are an idiot at the same time?

When regulatory authority clarifies how a law will be enforced it is following the law. When the regulatory agency deliberately takes up an issue that the legislative authority refused to touch and that the judicial branch has specifically told it it does not have the authority to touch it is rule by fiat.

Defend the FCC taking up net neutrality after both of those things happened and tell me how it fits into your definition. I dare you.

 

[Quantum Windbag]

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.

The job of the Executive is to enforce the law, not make it.

 

[Quantum Windbag]

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.

Another idiot that thinks he understand the way things work. I issue the same challenge to you, explain why the FCC is trying to regulate net net neutrality when both Congress and the Supreme Court specifically told them they do not have the authority under the law to do so.

 

[Quantum Windbag]

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.

Massachusetts v. EPA is not my reasoning, it's a Supreme Court ruling that addresses the EPA's responsibilities for regulating greenhouse gases under the Clean Air Act.

The EPA isn't compelled to do anything or enforce anything, it does not feel like doing.

Again, you need to be telling this to the Supreme Court, not me.

Under the Act’s clear terms, EPA can avoid promulgating regulations only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do. [...] The statutory question is whether sufficient information exists for it to make an endangerment finding. Instead, EPA rejected the rulemaking petition based on impermissible considerations. Its action was therefore “arbitrary, capricious, or otherwise not in accordance with law,” §7607(d)(9). On remand, EPA must ground its reasons for action or inaction in the statute.​

The EPA ignored that ruling for years, please tell me how the court is suddenly compelling them. While doing so please also explain why the same adminstration has no problem ignoring rulings it does not like that are just as compelling, ie., not at all.

 

[mudwhistle]

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.

Which explains why 4 months into the Obama Presidency they saw fit to send the IRS out to audit my business.

Thank God the lady at the counter was Black.

Both of the IRS agents were Black and they seemed to hit it off.

They found a way to ask her what she thought of Obama.

She lied of course. They were happy, and did a cursory audit and never came back.

 

[Soggy in NOLA]

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.

Not to mention its folly to regulate a naturally occurring gas. These EcoNazis are fucking delusional and dangerous.

 

[Intense]

That's the point GB. The Supreme Court rarely represents the Will of the Governed. It is not above the Constitution. Or is It?

I suppose the question then is, what's the point of making this point? The whole thing merely highlights what I've been saying: regulation does not exist independent of legislation passed by our duly elected representatives, regulatory authority is written directly into the legislation. Which means that regulatory agencies may be compelled to promulgate regulations in response to legislation, even when they don't particularly want to.

This example was brought up to suggest that the EPA has somehow gone rogue. The reality, of course, is that it's compelled to address greenhouse gases under the terms of the Clean Air Act, as interpreted by the judiciary.

Or the cost of sorting out the smoke and mirror schemes is too prohibitive. To decree a thousand claims is allot easier than undoing a single one. You put allot of faith in others making up as they go, for you, I'll give you that. The cost, is Liberty, Justice, Equality, in relation to The Law. Is it really worth it???
Because Somebody in Authority makes a claim, it is supposed to be absolute??? No matter how many times it breaches the trust, contradicts even itself, really??? The Tax Code, for example??? Could it be more corrupted??? Local? State? Federal? Hidden Taxes? Surcharges? Fee's? Tired of jumping through hoops??? Are we Circus Monkeys?

No mechanism is of more importance that that which it was created to serve. You have altered the machines function and purpose to serve your own end. At war with what is just, claiming only those you put in charge, can even understand what Justice is. Bullshit. Give up the schemes. Tyranny is Tyranny under any banner. You may hide it, you may try to disguise it, and it will indeed confuse some, even many, But, it remains what it is just the same. You can't serve two Masters GB.

 

[The Rabbi]

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.

It went to the Supreme Court because the authority wasn't readily recognizable.

Bureaucrats are unelected and unaccountable. The OP is correct. Rein in these agencies once and for all.

 

[boedicca]

Bureaucrats are unelected and unaccountable. The OP is correct. Rein in these agencies once and for all.

And, bureaucrats grease the system for the benefit of Big Government Cronies, creating various classes of "citzens" with differing rights under the regulatory system (I refuse to call it a system of law).

 

[bripat9643]

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

Americans' Demand for Redress of Grievances

Before It's News

The states have to begin applying nullification to unconstitutional federal action.

 

[waltky]

S&P skeptical of bailout ban...

‘Too big to fail’ bank law seen as too weak to work
Thursday, July 21, 2011 - A year after the enactment of a sweeping Wall Street reform law, evidence is growing that it failed in its main mission of ending taxpayer bailouts of global banks considered “too big to fail.”

Despite an outright ban on bailouts written into the legislation, Wall Street investors and credit agencies remain skeptical that the government will not step in again to prevent any downfall of major banks such as Bank of America, Citigroup or JP Morgan. Those financial goliaths have only grown in size and power, making it more certain that they would bring down much of the financial system with them. The most concrete sign that the banks still enjoy an implicit guarantee from the government is that none of the top banks has been downgraded since the legislation was enacted, even though their high credit ratings for years have been based on the expectation that the government would prevent any catastrophic failure of the bank that would harm the bank’s creditors.

Standard & Poor’s Corp. last week pointedly disputed the often-stated claim on Capitol Hill that the legislation had put an end to “too big to fail” and the era of federal bailouts. S&P thinks “the government in a handful of situations may be forced to provide some sort of support to an institution,” especially if the failure of the bank threatens the economy and well-being of ordinary Americans, as occurred in the fall of 2008, said S&P managing director Rodrigo Quantanilla. S&P cited the long history of bank bailouts in times of economic stress as well as what it sees as ambiguities in the Wall Street reform law. The S&P may change its mind, depending on how regulations implementing the law turn out. Yet the agency is so skeptical of Congress’ resolve that it expects an amendment to the Wall Street reform law to remove any ambiguity and make it easier to bail out big banks.

“For us to change our views about whether the U.S. government remains supportive or not,” Congress would have to, among other things, require that bank creditors are forced to take losses if a bank makes mistakes that leads to its failure, Mr. Quantanilla said. Attempts to amend the law to include such language failed last year. Moody’s Investors Service also has defied the law’s authors by not downgrading any of the biggest banks, whose ratings depend on government support. It says, however, that it is reviewing whether regulations implementing the law would require a downgrade.

Rep. Barney Frank, Massachusetts Democrat, former chairman of the House Financial Services Committee and co-author of the law, blasted S&P for “clearly misreading” the law and said the agency’s assertion that the law is likely to be changed to permit bailouts shows that, in fact, the law accomplished what it set out to do. “Any fair reading of the mood of the American public and the appetite of Congress suggests that there is absolutely no support for more bank bailouts,” he said in a letter to S&P last week, adding that the credit agency should stop trying to predict what Congress will do and stick to its “core business” of assessing creditworthiness.

MORE

 

[daveman]

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.

Well, that was rather an eloquent defense of why Obama's special interest groups deserve waivers from Obamacare.

 

[daveman]

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.

If the government wanted you to have a personal life, they've have issued you one, prole.

 

[daveman]

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.

The job of the Executive is to enforce the law, not make it.

That was during the Bush Administration. That idea went away in January of '09.