3. The Independent Payment Advisory Board (a.k.a. “The Death Panel”)
IPAB is the group of 15 presidential appointees who, beginning in 2014, are tasked with reducing Medicare spending. Any decisions IPAB makes automatically become law that can only be overridden by a three-fifths majority vote in the Senate. Unlike other federal agencies, IPAB is subject to no external review — no public notification in advance of proposed rules or opportunity for comment, no administrative guidelines and no judicial review. Medicare comprises about 13 percent of the federal budget, so that’s an awesome amount of power for Congress to delegate to unelected executive-branch bureaucrats. Indeed, it’s so basic a violation of traditional separation of powers that there’s no historical analog. The Goldwater Institute has filed a strong lawsuit challenging this (yet another) unprecedented aspect of Obamacare, which will continue wending its way through the lower courts regardless of how the Supreme Court rules on the individual mandate and Medicaid-coercion issues.
4. The Chrysler bailout
Building on the Bush administration’s illegal use of TARP funds to bail out the auto industry, the Obama administration bullied Chrysler’s secured creditors — who were entitled to “absolute priority” — into accepting 30 cents on the dollar, while junior creditors such as labor unions received much more. This subversion of creditor rights violates not just bankruptcy law but also the Constitution’s Takings and Due Process Clauses. This blatant crony capitalism — government-directed industrial policy to help political insiders — discourages investors and generally undermines confidence in American rule of law.
Intended to remedy weaknesses in the U.S. financial system — ensuring transparency and accountability — the Dodd-Frank financial “reform” empowered unlimited, unreviewable and often secret bureaucratic discretion. The administrative bodies the legislation created face no constraints on the exercise of arbitrary authority. For example, the Treasury Department now has broad and essentially unchecked power to seize banks and other financial entities that it determines are unsound but “too big to fail.” The new Consumer Financial Protection Bureau and Financial Stability Oversight Council, meanwhile, craft, execute and interpret their own law. Due process and separation of powers issues abound.
6. The deep-water drilling ban
Following the Deepwater Horizon oil spill, the Interior Department issued a blanket six-month moratorium on new oil and gas drilling in the Gulf of Mexico. A federal judge struck down that moratorium as arbitrary and capricious, but the government issued a new order to replace the one that was struck down. That order was subsequently withdrawn, but the judge was so shocked by the administration’s conduct that he found the government in civil contempt of court.
7. Political-speech disclosure for federal contractors
In April of this year, President Obama released a draft executive order (still pending) that would require businesses with federal contracts to disclose independent expenditures on federal elections (political speech independent of candidates and parties). This order is intended to undermine the Supreme Court’s Citizen United decision — allowing independent expenditures by corporations, unions and other associations — by discouraging federal contractors and their executives from engaging in political speech. Citizens United held that such expenditures do not enable the kind of quid pro quo corruption that campaign finance laws are allowed to regulate, so this draft executive order shows contempt for the First Amendment by chilling protected speech.