How a bureaucratic dictate becomes a law

Phil Kerpen President, American Commitment
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High school civics students and aficionados of “Schoolhouse Rock!” can be forgiven if they are bewildered by what took place in the U.S. Senate last week. It was Barack “We Can’t Wait” Obama’s new process of turning a bill into a law — not by duly passing it in both houses of Congress, but by issuing bureaucratic dictates and counting on Senate Democrats to block any effort to stop them.

The particulars this time were especially egregious. The Senate, before the 2010 landslide when it still had a 60-vote Democratic majority, rejected the ridiculously named Employee Free Choice Act (EFCA) — both its first version that eliminated private ballot union elections entirely, and its revised version that retained private ballots but allowed union organizers to catch businesses off-guard with surprise “ambush elections.”

Obama, intent on rewriting the labor laws with or without Congress, nominated a radical union lawyer, Craig Becker, to the National Labor Relations Board (NLRB). Becker had written extensively on how the NLRB could rewrite the labor laws to favor union bosses, making it entirely foreseeable that he would use a seat on the NLRB to sidestep Congress and push forward with the provisions of the failed EFCA bill. The Senate therefore rejected his nomination on a bipartisan vote.

Sidestepping Congress, Obama recess-appointed Becker and he led a string of extreme anti-business actions last year that went well beyond the NLRB’s legitimate authority. One such action, a rule requiring businesses to put up posters touting the benefits of unionization, was struck down in court. Another, set to take effect next week, will implement the “ambush elections” feature of EFCA even though that legislation is not the law.

Last week the Senate had a chance to stop this NLRB power grab, but it came up well short. Not a single Senate Democrat had a problem with bureaucrats writing laws, a duty entrusted exclusively to Congress under Article I, Section 1 of the U.S. Constitution.

This is the third time this Congress that Senate Democrats voted to allow the Obama administration to empower unelected bureaucrats to act as super-legislators.

Last April, Republican Leader Mitch McConnell (Ky.) forced a vote to stop the Environmental Protection Agency (EPA) from implementing the energy tax agenda that Congress rejected in President Obama’s cap-and-trade bill. The bill failed on a 50-50 vote, with just four Democrats standing up to Obama.

In November, the Senate considered a resolution, offered by Senator Kay Bailey Hutchison (R-Texas), to overturn an order by which the Federal Communications Commission gave itself the power to regulate broadband Internet service. It failed on a straight party-line vote; every Democrat refused to overturn an order that will almost certainly be found illegal in court.

The Senate will have an opportunity to do better next month when Senator Jim Inhofe (R-Okla.) forces a vote on a resolution to overturn the EPA’s Utility Maximum Achievable Control Technology (UMACT) rule. The leading edge of the Obama EPA’s War on Coal, this rule is designed to force coal plants to adopt expensive retrofits or be retired early, driving up electricity prices as much as 20 percent and destroying hundreds of thousands of jobs.

If Senate Democrats again vote to allow the EPA’s bureaucratic rewrite of our laws, it will be even more clear that they are complicit in a constitutional inversion that makes Congress all but irrelevant and allows unelected, unaccountable bureaucrats to, in effect, write the country’s laws.

The UMACT vote may be the last chance before the election for the Senate to stop an Obama regulatory power grab. Economically, it is the highest-stakes vote yet. The senators who rubber-stamp Obama’s bureaucratic dictate will do so at their own political peril.

Mr. Kerpen is the president of American Commitment and the author of Democracy Denied: How Obama is Bypassing Congress to Radically Transform America – and How to Stop Him.