Obama is on a regulatory roll: Can Congress stop him?

Ray Hartwell Contributor
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A new Congress is in town, the result of widespread opposition to the Obama Democrats’ aggressive expansion of federal power and their concomitant orgy of pork-barrel spending and job-killing regulatory measures. Recently, our president penned an opinion piece in the Wall Street Journal asserting that, all along, he’s really been for eliminating regulations that hamper business. Now, he tells us, his administration will attack unnecessary regulation so that the private sector can create jobs and rejuvenate the economy.

Well, knowing what he’s said, let’s revisit what he’s actually done. A few months back I wrote in The Washington Times that, far from being incompetent as some have suggested, President Obama and his administration have used their control of the executive and legislative branches of our government successfully to enact unprecedented extensions of federal power.

So, during the Democrat-controlled 111th Congress, we saw sweeping legislation — unread even by most of those who voted for it — enacted after closed-door, dead-of-night drafting sessions. Thousands of pages of new laws brought us federal takeovers of two out of three Detroit-based auto manufacturers, the nationalization of the student loan business, a takeover of health care, sweeping new regulatory controls over the financial sector, recklessly profligate spending under the misleading rubric of economic “stimulus,” and a great deal more. Even in a lame-duck session, the last Congress did all it could to railroad through economically irresponsible legislation opposed by most voters.

In all of this, the Democrats showed little regard for the Constitution and even less for the consent of the governed. Questions about constitutional authority were mocked. Inquiries about statutes embodying thousands of pages of special deals, struck in dead-of-night secrecy, met the arrogant response that we have to “pass the bill to find out what’s in it.”

The Democrats’ actions and attitude brought us our newly seated and very different Congress. The Republicans can now prevent the railroading of new legislation, and possibly withhold funds from much of what’s already been done.

Yet this administration is not content with the power seized thus far. The president and his radical recess appointees, czars, and other minions in the ministries have a much more ambitious goal. They now seek via agency rules and orders to advance an array of agenda items that even the (virtually shameless) last Congress was unwilling to pass.

The president’s recent statement that he will attack unnecessary regulation is a head fake. To appreciate the administration’s regulatory strategy, contrast the president’s recent remarks with these illustrative examples of what his worms in the woodwork have been doing recently:

— Following the Gulf oil spill, the administration shut down offshore drilling through orders twice found to be illegal by federal courts, and based upon reports falsified by the Department of the Interior. Even in the face of federal court orders, deliberate bureaucratic “defiance” has prevented resumption of drilling in the Gulf. On February 2nd, a federal judge found the administration in contempt of court for its lawless actions blocking offshore drilling — actions that have killed jobs, increased energy prices, reduced investment in domestic energy production, and fostered greater dependence on foreign oil.

— In January, the EPA began enforcing new rules regulating greenhouse gas emissions from power plants and oil refineries. This will make it more expensive to generate energy, and will discourage investment in domestic refining and power generation. (By the way, the first exemption from the restrictions imposed by these new rules was issued this month, to a project that may use turbines supplied by General Electric, whose chief executive is a high-profile supporter of the Obama administration.)

— Also in January, the EPA issued an order shutting down one of the largest surface coal mines in West Virginia, a move seen as foreshadowing additional restrictions on the heavily regulated coal industry.

— In late January, the Office of Surface Mining released a study predicting that it’s new, more stringent rules governing water quality in streams near coal mines will lower coal production in 22 states and could eliminate 7,000 coal mining jobs.

— According to regulatory analyses published by the EPA itself, new and pending rules from that agency alone could cost the economy $143 billion and up to 100,000 jobs — and that doesn’t count carbon dioxide and cooling tower rules it has under consideration.

— In December, following closed-door deliberations, and in the face of Congressional opposition and federal court decisions holding that it lacks authority, the Federal Communications Commission asserted jurisdiction over the Internet by enacting vague yet extensive “net neutrality” regulations. Many fear these new FCC rules will adversely affect investment and, ultimately, quality of service. They may also raise serious First Amendment issues if, as many predict, they are administered in such a way as to give the FCC indirect control over online speech.

— In January, the EPA finalized a rule that subjects spills of cow’s milk to federal regulation under a statute designed to prevent oil discharges in navigable waters or near shorelines, on the theory that milk contains animal fat, which is a non-petroleum oil.” So now farmer John, who milks his cow and spills a few drops of milk on the barn floor, can be regulated and harassed by EPA bureaucrats because a few molecules of milk might seep into a nearby stream.

— Not to be outdone, in October the Department of Education’s Office for Civil Rights issued extensive new rules on bullying. Now your local elementary school can expect federal involvement when bad boy Johnny pulls little Jenny’s pigtails on the playground and Jenny claims it was because she was a girl. Tell me again, please, why do we even have a federal Department of Education?

— Last week labor unions were granted collective bargaining rights for airport screeners who are federal employees. This is right in sync with TSA chief John Pistole’s decision to block airports across the country from hiring private-sector security screeners, who are thought to be more competent and less expensive than their federal employee counterparts. This decision plainly disregards the rights of airport proprietors, in violation of the Transportation Security Act of 2001.

These are just a few publicly reported examples from among the roughly 6,000 new federal regulations promulgated within the past year. There are many other equally egregious actions, from the NLRB’s attempts to deny workers the right to vote on unionization by secret ballot, to the Justice Department’s racially discriminatory law enforcement, and beyond.

Given this administration’s stealthy and non-transparent tactics, we can rest assured that these and similar examples are but the tip of a very large iceberg. Much remains under water. When it surfaces, we will see still more audacious assaults on individual liberty, more patronage for unions and other favored constituencies of the Democrats, and more decision-making authority taken away from states, localities, and the people, and handed to federal bureaucrats.

The Obama administration is advancing its agenda across the agencies and departments of our government, in defiance of court orders, in disregard of laws on the books, and with open contempt for our Constitution and any notion of limited government. The goal, it appears, is federal control over every aspect of our lives and our economy, the politicization of all laws and regulations.

Let’s be clear: when everything is subject to federal power, and everything is politicized, there will be few if any limits on when and how federal officials exercise their broad authority. And our president has told us in plain words exactly how his administration and its allies intend to use their new powers: “to punish our enemies and . . . reward our friends.”

Our country’s founders led a revolution over this sort of thing. They said to the meddlesome officials of their day, in effect, “we do not consent.” I hope the new Congress will do the same, and soon.

Ray Hartwell is a Navy veteran and a Washington lawyer.