Who wants to be a U. S. senator?

Phil Kerpen President, American Commitment
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The U.S. Constitution is crystal clear on where legislative power resides. In fact, it’s the very first thing after the preamble. Article I, Section 1 says: “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” But in the Age of Obama, it’s a different story. The legislative powers are being exercised by unelected, unaccountable bureaucrats. Now the Senate will be put to the test of whether each senator is OK with that state of affairs, or whether they actually want to take responsibility for writing the laws. That’s the fundamental question at stake as the Senate considers the McConnell Amendment to stop the EPA’s global warming power grab.

Let’s be clear on what is and is not at stake. This is not about the science of global warming, our disastrous overall energy policies, or how we feel about the country’s cherished environmental laws. It is about one thing and one thing only: Who decides? Who makes the laws? And therefore, does the Constitution still matter?

John Locke put it well in 1690 when he wrote:

The legislative cannot transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it cannot pass it over to others . . . The power of the legislative, being derived from the people by a positive voluntary grant and institution, can be no other than what that positive grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws, and place it in other hands.

Our founders clearly agreed when they wrote Article I, Section 1. Yet now we have a situation in which the EPA is intent on doing precisely what Congress and the American people already rejected when they shot down President Obama’s cap-and-trade energy tax bill. In Obama’s words, the day after the election: “Cap and trade was just one way of skinning the cat; it was not the only way.”

Indeed, the EPA is actively pursuing a bizarre legal theory that the 1970 Clean Air Act was designed as a global warming law, and that pursuant to it they can regulate just about everything that moves, as well as most industrial facilities. When it’s fully phased in, their plans include over 18,000 pages of appendices that would regulate every industry in the U.S., cause electricity prices to skyrocket, and greatly diminish our freedom and prosperity.

Unelected regulators are usurping the legislative power that the people, in the Constitution, granted to Congress. We must demand our senators step in and stop this regulatory tyranny.

The first test may come as soon as today on the McConnell Amendment. Is the EPA now the super-legislature of the United States? Or does the Senate still matter? Moreover, the constituents of any senator who votes to allow the EPA’s power grab to move forward should seriously reconsider whether it makes sense to re-elect a senator who chooses to delegate away his or her legislative powers.

Beyond today’s vote, we need fundamental reform. The most significant reform to check out-of-control regulators is the REINS Act, H.R. 10 in the House where it is sponsored by Rep. Geoff Davis and S. 299 in the Senate where it is sponsored by Rand Paul. Those two Kentuckians understand that Congress must take responsibility, and so their bill would require a vote of the legislative branch before major policy changes could take effect through regulation. Imagine that. Let’s make the legislators legislate.

Phil Kerpen is vice president for policy at Americans for Prosperity and the author of the forthcoming book Democracy Denied (BenBella, 2011) on Obama’s extreme regulatory agenda.