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USA: Imperial Presidency

Matthew Spalding, Ph.D.
June 22, 2012 at 9:06 am

The United States was born when rebellious colonists declared their independence from an imperial ruler who had vastly overstepped his bounds. “The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States,” they wrote in their Declaration of Independence.

Today’s presidency lacks the regal air of George III. But imperialism is back, in a big way.

Last week, the Obama Administration’s Department of Homeland Security issued a memorandum instructing U.S. immigration officials to use their “prosecutorial discretion” to create a policy scheme contrary to existing law, designed to implement legislation that Congress hasn’t passed.

The President himself has admitted he doesn’t have the authority to do this. “The idea of doing things on my own is very tempting, I promise you, not just on immigration reform. But that’s not how our system works,” he told Hispanic activists last year. “That’s not how our democracy functions.”

Indeed.

We can now see before us a persistent pattern of disregard for the powers of the legislative branch in favor of administrative decision-making without—and often in spite of—congressional action.  This violates the spirit—and potentially the letter—of the Constitution’s separation of the legislative and executive powers of Congress and the President.

Examples abound:

  • Even though the Democrat-controlled Senate rejected the President’s cap-and-trade plan, his Environmental Protection Agency classified carbon dioxide, the compound that sustains vegetative life, as a pollutant so that it could regulate it under the Clean Air Act.
  • After the Employee Free Choice Act—designed to bolster labor unions’ dwindling membership rolls—was defeated by Congress, the National Labor Relations Board announced a rule that would implement “snap elections” for union representation, limiting employers’ abilities to make their case to workers and virtually guaranteeing a higher rate of unionization at the expense of workplace democracy.
  • After an Internet regulation proposal failed to make it through Congress, the Federal Communications Commission announced that it would regulate the Web anyway, even despite a federal court’s ruling that it had no authority to do so.
  • Although Congress consistently has barred the Department of Education from getting involved in curriculum matters, the Administration has offered waivers for the No Child Left Behind law in exchange for states adopting national education standards, all without congressional authorization.

Likewise, the Administration has often simply refused to enforce laws duly enacted by Congress:

  • Since it objects to existing federal immigration laws, the Administration has decided to apply those laws selectively and actively prevent the state (like Arizona) from enforcing those laws themselves.
  • Rather than push Congress to repeal federal laws against marijuana use, the Department of Justice (DOJ) simply decided it would no longer enforce those laws.
  • DOJ also has announced that it would stop enforcing the Defense of Marriage Act or defending it from legal challenge rather than seeking legislative recourse.

On Tuesday, the President invoked executive privilege to avoid handing over some 1,300 documents in an ongoing Congressional investigation.  The Supreme Court has held that executive privilege cannot be invoked to shield wrongdoing.  Is that what’s happening in this case? “Congress needs to get to the bottom of that question to prevent an illegal invocation of executive privilege and further abuses of power. That will require an index of the withheld documents and an explanation of why each of them is covered by executive privilege—and more,” Heritage legal scholar Todd Gaziano writes.

Earlier this year the President crossed the threshold of constitutionality when he gave “recess appointments” to four officials who were subject to Senate confirmation, even though the Senate wasn’t in recess. Gaziano wrote at the time that such appointments “would render the Senate’s advice and consent role to normal appointments almost meaningless. It is a grave constitutional wrong.”

There is no telling where such disregard may go next, but the trend is clear, and it leads further and further away from the constitutional rule of law.

The President has unique and powerful responsibilities in our constitutional system as chief executive officer, head of state, and commander in chief. Those powers do not include the authority to make laws or to decide which laws to enforce and which to ignore. The President – like judges or Members of Congress – takes an oath to uphold the Constitution in carrying out the responsibilities of his office.

Indeed, the President takes a unique oath, pledging he “shall faithfully execute the Office of President of the United States” and “preserve, protect and defend the Constitution of the United States.” We don’t need a new Declaration of Independence, but we do need a President who will defend and vigorously exert his or her legitimate powers, recognizing that those powers are not arbitrary or unlimited.

Dr. Matthew Spalding is the Vice President for American Studies and Director of the B. Kenneth Simon Center for Principles and Politics at The Heritage Foundation. He is also the author of We Still Hold These Truths.

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Beneath Growth, a Sea of Poison

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Mike Brownfield
January 6, 2012 at 10:40 am

Today’s jobs report from the Department of Labor was encouraging news for the U.S. economy. It shows that 200,000 jobs were created and the unemployment rate ticked down from 8.7 percent to 8.5 percent. Jobs were created in every sector of the economy save one — government! This report is consistent with other economic indicators and shows that the economy is finally coming out of its malaise. But like any reports, they must be put into context. The creation of 200,000 new jobs is solid growth and above the 130,000 to 150,000 new jobs that must be created to keep up with population growth.  However, this doesn’t mean happy times  are here again.

There are not enough Americans working or looking for work. In fact participation in the labor force is at its lowest point in 30 years as many potential workers are not yet even attempting to find jobs. Moreover, at this stage in a recovery, new jobs should be surging instead of averaging less than 140,000 for the last three months. So all is not well and President Obama should not check the “mission accomplished” box. In fact, Obama’s painful economic policies will only serve to further hamstring America’s economic engine, thereby preventing a truly strong, vibrant economy that the country is capable of having.

The President single-handedly unleashed another poison pill on Wednesday with the White House’s announcement that he will exact another illegal, unconstitutional end-run around Congress with the appointment of three new members to the National Labor Relations Board (NLRB) without Senate approval, all of whom are union officials. Here’s why that matters.

The NLRB is a five-member board that is responsible for investigating unfair labor practices, creating labor-related rules, and conducting elections for labor union representation. Last year the NLRB enacted measures shortening union elections to as little as 14 days, limiting employees’ ability to hear from both sides before they vote, allowing unions to cherry-pick which workers in a company can vote on unionizing, and preventing workers from insisting on a secret ballot in union drives, as Heritage’s James Sherk explains. These measures will make it much easier for unions to organize workers — but at the expense of workers’ rights. If workers want to join a union they have that right — management gets the union it deserves — but the government should not limit their rights in order to press workers into unionizing.

Prior to the President’s appointments, the NLRB had only three sitting members, with the one member’s term ending at the end of 2012. Were the NLRB to go down to two members, it wouldn’t have a quorum to conduct its business, meaning that the President’s Big Labor agenda couldn’t be enacted. Now, though, the President has appointed three new members who will undoubtedly carry out his agenda without any checks or balances.

And that agenda is to bolster America’s unions — a key constituency and political force standing behind the President. Unfortunately, their goal is not primarily to protect workers. The trouble is that the Big Labor agenda is fundamentally at odds with the pro-growth agenda that America is so thirsty for. Sherk explains:

Unions make businesses less competitive and discourage investment. This reduces job growth. Studies show that jobs fall by 5-10 percent at newly organized firms. Going forward, employment grows by three to four percentage points more slowly at unionized businesses than at otherwise identical non-union companies.

In short, America is witnessing President Obama put his Big Labor allies before workers, all in the guise of taking action on behalf of the American people. America’s job creators are sitting on the sidelines, as well, watching as this President takes actions that serve only to inject more poisonous uncertainty into the economy.

Apart from the economic ramifications of the President’s actions, the American people should also remember that his NLRB appointments are a blatantly unconstitutional, tyrannical abuse of power. The U.S. Constitution requires that the President receive the advice and consent of the Senate when making appointments — a requirement that President Obama entirely set aside in order to advance his agenda.

Today, the President may say he is finding success in fighting for the American worker, but in truth he is fighting for his political allies. Beneath the surface of his populist rhetoric, his policies are poisoning strong economic growth. And for the President, the Constitution is collateral damage.

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Former Union Chief Andy Stern Praises Crony Communism

Andy Stern

Andy Stern

Posted 12/02/2011 07:05 PM ET

IBD Editorials

Economic Systems: The former head of the Service Employees International Union says capitalism is on the ash heap of history and sees China as our role model. We have seen his future, however, and it doesn’t work.

President Obama once reportedly told aides, according to the New York Times, that things would be easier if he were president of China. Presumably he meant there would be no pesky things like a Congress, free elections and a free press to deal with.

Former SEIU chief Andy Stern, who may still hold the record for visits to the White House under this administration, would agree with that assessment. Stern, in an op-ed in the Wall Street Journal, writes of China’s “superior economic model,” a command-and-control economy unimpeded by such anachronisms as democracy and a truly free market. Stern writes that the “conservative-preferred free-market fundamentalist shareholder-only model” of capitalism “is being thrown onto the trash heap of history in the 21st century.”

We should, he says, “rethink” our economic model rather than “double down on an empirically failing free-market extremism.” He speaks glowingly of China’s 12th five-year plan and “Deng Xiaoping‘s government-led growth-oriented reforms (that) have created the planet’s second-largest economy” soon to replace us as No. 1.

Stern is wrong on at least two counts. The first is that what we have been practicing of late can hardly be called unfettered capitalism. We labor under the burden of ever-restrictive regulation and the highest corporate tax burden in the world. The administration has embraced industrial policy to dictate where factories can be built and what energy can be developed. It, not the free market, picks the winners and losers.

If we were practicing capitalism, Boeing would be allowed to make its Dreamliner passenger jet in South Carolina without the commissars at the National Labor Relations Board interfering. We’d be building the Keystone XL pipeline to bring Canadian tar sands oil to American markets. We’d be drilling offshore and in ANWR.

If we were practicing capitalism, there would be no such thing as too big to fail. There would be no bailouts, no nationalization of health care or buying of car companies. There would be no Solyndras or government “investments” in failed alternative energy. We wouldn’t shoot ourselves in the foot building high-speed trains.

The second is that China is hardly the worker’s paradise Stern portrays. Its progress has been built on the corpses of millions sacrificed for this or that great leap forward. China has perhaps the worst distribution of wealth on the planet.

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The Congress-optional president

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Illustration: Congressional run around by Alexander Hunter for The Washington Times

By Phil Kerpen
The Washington Times

On Oct. 11, after Senate Majority Leader Harry Reid had taken extraordinary measures to stall an embarrassing vote as long as possible, the Senate decisively rejected President Obama’s “jobs” plan. The same day, in Pittsburgh, Mr. Obama explained to his union allies that he would move forward regardless. “We’re not gonna wait for Congress,” Mr. Obama explained. “We can act administratively without additional congressional authorization and just get it done.” Now we know that part of what he meant was yet another mortgage bailout – one that will cost bond investors billions – via subsidized refinancing.

This remarkable disregard for the rule of law and proper constitutional procedures fit a familiar pattern in this administration: What it cannot achieve legislatively it will attempt to do by regulatory fiat. Congress must actively assert its legislative prerogative or be relegated to the sidelines.

One year ago, the American people decisively rejected Mr. Obama’s big-government agenda in a landslide election. Surely, most voters thought that election would at least halt, if not reverse, the country’s profound lurch toward a larger, more intrusive and more expensive federal government.

Unfortunately, Mr. Obama has chosen to moderate his rhetoric only somewhat and his actual policies not at all. And Congress, institutionally weakened by decades of delegating legislative power, capped by two massive new grants of regulatory power to the executive branch in Mr. Obama’s health care and financial regulation bills, has thus far proven unwilling – at least on the Senate side – to stand up to him.

Consider that the day after last year’s election, Mr. Obama explained to the press corps that his signature cap-and-trade energy rationing legislation – which cost dozens of House Democrats their seats in Congress and was decisively rejected by the American people – was “one way of skinning the cat; it was not the only way. It was a means, not an end.” He clearly instructed his Environmental Protection Agency to go ahead and act as if the cap-and-trade law had been passed, even writing its emissions abatement schedule into the EPA budget.

The month after the 2010 election, the Federal Communications Commission, chaired by Mr. Obama’s close friend and fundraiser Julius Genachowski, voted on a 3-2 party-line vote to impose net-neutrality regulations, the first economic regulation of the Internet in nearly a decade. It did this even though legislation for net neutrality had failed to gain any significant support in Congress and despite the fact that the decisive Comcastv. FCC court ruling had already made clear that the FCC lacked jurisdiction. What’s more, all 95 congressional candidates in last year’s election who pledged to support net neutrality lost. Zero for 95.

The union agenda, as expected, shifted to the National Labor Relations Board, the National Mediation Board and the Department of Labor. Via rulemakings by unelected and unaccountable federal bureaucrats, these agencies are now implementing nearly every aspect of the card-check legislation rejected by the last Congress. The NLRB is especially egregious, relying on a recess-appointed former union lawyer, Craig Becker, and an unconfirmed acting general counsel, Lafe Solomon. Mr. Solomon not only issued the now-infamous unfair labor practice complaint against Boeing for building a nonunion factory in South Carolina but is also suing four states for adopting state-level secret ballot protections.

Our Congress-optional president has been surprisingly open about his approach. Last month, at a gala for the Congressional Hispanic Caucus Institute, he said, “Until Nancy Pelosi is speaker again, I’d like to work my way around Congress.”

The sad irony in all this is that Mr. Obama campaigned against President George W. Bush’s executive excesses, promising a return to a constitutionally limited executive branch. Once elected, however, Mr. Obama discovered that presidential power is only a problem when someone you don’t like is the president.

Even that symbol of Bush-era executive power – the signing statement – has reached a new level of abuse under Mr. Obama. In April, Mr. Obama and House Republican leadership concluded tense negotiations on a funding bill to avert a government shutdown. Part of the deal the president specifically agreed to was language blocking funding for four of the president’s policy advisers – czars, colloquially. Mr. Obama agreed to the language but after the bill’s passage, he used a signing statement to explain that he would simply disregard it.

Now our Congress-optional president is moving forward on his latest bailout-and-stimulus scheme without congressional authorization. Enough is enough. Congress must assert its responsibility under Article I, Section 1 of the U.S. Constitution. It is Congress, not the president, that is vested by the people with legislative power. The Senate must do what the House has repeatedly done and stand up to this administration – or voters must elect a Senate that will.

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Louisiana Remains on the Receiving End of Washington D.C.’s Worst Regulations

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By Kevin Mooney on August 12, 2011 8:21 am

Oil drilling moratorium, union favoritism, ObamaCare mandates undercut business

Louisiana is beset with some of the most economically damaging regulations that flow out of Washington D.C, according to industry representatives and public policy analysts. Moreover, some small business owners view local level licensing practices within their own municipalities as being overly costly and redundant.

Anti-Energy Policies Remain in Effect

For starters, there is the moratorium on deepwater oil and gas drilling that the Obama Administration imposed in May 2010 in response to the British Petroleum oil well explosion. Although the moratorium was official lifted in October of last year, a “de-facto” moratorium remains in place, officials with the Louisiana Oil and Gas Association (LOGA), have argued.

The “political uncertainty” surrounding the Gulf region has discouraged companies from making investments that could help spur economic growth, Don Briggs, the LOGA president, has observed.  As was previously reported, ten oil rigs have left the Gulf of Mexico since the moratorium went into effect and eight others that were heading into the region have been detoured away.

“When you have companies that would be spending hundreds of millions of dollars, or some cases, billions of dollars, they need certainty,” Briggs explained. “We don’t have that now and I don’t expect that we will anytime soon. We will be in a deteriorating position until this changes.”

Sen. David Vitter (R-La.) has announced that he will block the nomination of Rebecca Wodder to serve as Assistant Secretary for Fish and Wildlife Parks for the Department of Interior unless expiring Gulf drilling leases are extended for another year.

“Since the moratorium, oil and gas exploration in the Gulf of Mexico has been dramatically curtailed,” Vitter said. “In 2011 alone, more than 300 offshore drilling leases in the Gulf of Mexico are due to expire. If these leases are allowed to expire, they will revert to the federal government, killing jobs and cutting off potential revenue from exploration and production. The U.S. economy will greatly benefit by allowing the offshore energy industry to get to work and stay working.”

Earlier this year, Vitter also blocked the nomination of Dan Ashe to the Interior Department, but lifted it after new deepwater exploratory permits were issued. In addition, Vitter has successfully opposed an almost $20,000 pay raise for Interior Secretary Ken Salazar.

While Vitter’s actions have been effective, states like Louisiana that rely on cheap, affordable energy for their livelihood will most likely remain back on their heels for some time, Bonner Cohen, a senior fellow with the National Center for Public Policy Research (NCPPR), said.

“What you are seeing in Louisiana is only a small piece of larger mosaic being put together by the Obama Administration to make affordable energy as inaccessible as possible,” he observed. “From the administration’s war on coal to the serious consideration it is giving to imposing a nationwide regulation of hydraulic fracturing, to its shut down of deepwater drilling in the Gulf of Mexico, to its `endangerment finding” from the EPA [Environmental Protection Agency], the administration is practicing its own form of selected industrial sabotage.”

Although the Obama Administration failed to pass the Waxman-Markey “cap and trade” bill, it continues to pursue the same regulatory goals through the EPA and other federal agencies, Marlo Lewis, a senior fellow with the Competitive Enterprise Institute (CEI), has warned. As an alternative to pricing the carbon dioxide emissions from coal as part of a cap and trade program, the idea now is to simply prevent “conventional coal” from entering into competition with other energy sources, Lewis points out in “Green Watch,” a publication of the Capital Research Center (CRC.)

“Obama’s target is virtually identical to the mix of electricity fuels that would develop under Waxman-Markey,” Lewis explains. “Under Obama’s proposal, 80% of U.S. electricity would come from nuclear, natural gas, CCS, and renewable energy by 2035. Under Waxman-Markey, an estimated 81% would come from the same sources by 2030, according to the U.S. Energy Information Administration (EIA).”

The EPA also issued an “Endangerment Rule” back in Dec. 2009 that could have far reaching consequences for Louisiana businesses and average citizens. The rule claims that the “elevated concentration” of GHG (Greenhouse) emissions in the atmosphere “endangers public health and welfare.” This could create an enormous opening for additional regulatory mischief by misapplying and misusing the Clean Air Act (CAA), which makes no mention of “greenhouse gas” or the “greenhouse effect,” Lewis notes.
“If the Obama Administration is really were to impose the EPA’s Endangerment Rule on the nation, than the Clean Air Act could be transformed into a law that requires the United States to de-industrialize itself,” Lewis laments.

But the EPA insists it has the authority to implement new regulatory rules under the CAA under the U.S. Supreme Court’s Massachusetts v. EPA ruling in 2007.  The court concluded that carbon dioxide (CO2) was an air pollutant as the term is defined within the parameters of the CAA.

Team Obama Advances Big Labor Agenda

The EPA has a long track record of anti-business activity that is well documented and not likely to change anytime soon Mike Mitternight, the president of the Factory Service Agency, an air conditioning service and installation company based in Jefferson Parish, observed. But he is equally concerned with the “pro-union” leanings of the National Labor Relations Board (NLRB).

“We always need to be concerned about the EPA,” he said. “Businesses have historically done battle with the EPA. But right now I’m looking over my shoulder at what the NLRB is doing. The pro-unionization rulings are something we need to keep our eye on.”

Mitternight is particularly concerned about a proposal to curtain the amount of time set aside for unionization elections involving private companies. If the rule change goes into effect, the NLRB would set elections from a current median time of 37 days to as little as 10 days from the filing of an election petition. They would also set pre-election hearings for 7 days after a petition is filed; the rules would also require the employer to respond to a pre-hearing questionnaire raising any legal issues or waive its right to do so. And finally, the new rules would defer a decision on the issues raised at the hearing till after the election, putting an employer at risk if the decision is challenged.

“From the point of view of small business, this is very problematic,” Mitternight said. “It means a union could break our employees out into small groups and attempt to unionize in a piecemeal fashion.”
Mitternight also expressed concern over the “repetitive nature” of the licensing policies in Louisiana municipalities that translate into multiple fees and taxes. The total sales tax is 9 percent in Orleans Parish and 8.75 percent in Jefferson.  Therefore, if he makes a purchase in Jefferson Parish and pays the 8.75% and then subsequently installs equipment in New Orleans Parish, he must then pay the 1/4 percent difference as a use tax for installation in Orleans.

Mitternight holds an occupational license in Jefferson Parish but must also maintain an occupational license in Orleans Parish, which is used to collect the additional ¼ percent  tax. In addition, he holds a statewide Mechanical Contractors license, but is also required to have both a mechanical and a gas fitters license in Jefferson, Orleans, Kenner, Plaquemines, St. Tammany, Slidell, Mandeville, St. Bernard, and any other similar municipality or Parish where he operates.

“I have to fill out the tax report form on a monthly basis and indicate where I made an installation in New Orleans and pay them the extra tax,” he said. “It can be an expensive proposition to be an air conditioning manufacturer because you have this multi-layered licensing and I see it as an over-regulation.”

ObamaCare Could Force New Bureaucracies, Higher Costs

Unless the U.S. Supreme Court intervenes and rules in favor of the lawsuits that challenge the constitutionally of President Obama’s new health care law, Louisiana and other states will be forced to accommodate new layers of bureaucracy and higher costs, a report from the American Legislative Exchange Council shows.

“ObamaCare’s Medicaid mandates will bring significant fiscal damage to already strained state budgets, especially when taking into consideration the amount states currently spend on Medicaid” the report warns. Louisiana’s own Department of Health and Hospitals has produced a study that shows implementation of  ObamaCare will cost the state in excess of $7 billion over a 10 year period.

Rep. John Fleming (R-La.), who is also a medical doctor, points out that the “governmentalization” of health care has been in motion since the 1960s. The Patient Protection and Affordable Care Act (PPCA), the official title of ObamaCare, accelerates a harmful trend that must be reversed, he said.

“These policies are separating the patient from the private sector by inserting government with all its bureaucracy, additional costs and regulations,” he observed. “ObamaCare just makes this worse.”

Rep. Fleming has offered up two proposals, which would help to expand choice, lower costs and expand the influence of the private sector. Policymakers should “open up state lines” so that insurance companies must compete with one another and consumers can choose the best plan for their needs, he said. Fleming also supports the expansion of Health Savings Accounts (HSAs).  They come with higher deductibles, but this also creates an incentive to save and to make “wise purchases,” he said.

Fleming added:

“This is about putting consumers back in charge. Often times, we see them saving over and above what their deductible is in their Health Savings Accounts. ”

Louisiana is a plaintiff in the multi-state lawsuit that has been filed against ObamaCare.

Kevin Mooney is an investigative reporter with the Pelican Institute for Public Policy. He can be reached at kmooney@pelicaninstitute.org and you can follow him on Twitter.

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