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Friday’s Washington Post reported that the Clinton administration is
using its last months before a possible Republican replacement arrives
to “feverishly” seek a “legacy,” particularly on environmental matters.
As Clinton faces the inevitable end of his long hold on power, there is
good reason to fear an intensification of his habitual unwillingness to
submit to the often cumbersome and tedious restraints that the
Constitution wisely puts on the powers of his office. The Republican
Congress, hoping that its long nightmare will end on Nov. 7, has
distracted itself by concentrating on a series of attempted propaganda
victories in an attempt to strengthen George W. Bush’s bid for the White
House. Meanwhile, there is reason to fear that the president will use
all the mechanisms of executive order and regulatory diktat to win
substantive victories for a liberal agenda that remains, as always,
contemptuous of the American principles of representative
accountability, constitutionality and the rule of law itself.

It is a dangerous moment. Clinton’s “whatever you can get away with”
approach to personal conduct has manifested itself in the
administration’s policies from the beginning. The Clinton-Gore
administration has been a brazen, shameless enterprise that holds legal
and constitutional checks on government power in about as much respect
as Clinton holds the biblical prohibitions against lying and adultery.
We are confronted by an executive branch thoroughly molded to reflect
the character of its chief and, now that it is beyond the reach of an
electorate which will increasingly focus upon the upcoming election,
energetically planning its final moves.

Unfortunately, the foundation for a last minute flurry of leftist
fiats has been well laid. The heart of the problem is the tendency,
well-established in the last half century or more of American politics,
for the Congress to permit the regulatory agencies of the executive
branch to usurp the primary function of the Congress itself — the
exercise of the legislative power. For a variety of reasons, the
Congress has been content to allow those governmental entities charged
simply with acting as instruments of the president in executing the laws
Congress passes to assume the utterly different role of making those
laws. In the next few months, we will likely see these regulatory
authorities, such as the Environmental Protection Agency, taking full
advantage of their de facto legislative power to act as the fitting
instrument of a president who is himself far from content merely to
fulfill his constitutional duty to faithfully execute the laws.

To get some sense of the vaulting ambition that has grown-up under
Clinton’s executive skirts in the past few years, let’s consider some
examples of regulatory commands that executive branch agencies have
attempted to establish as the law of the land. These examples, and much
useful reflection on the threat to our constitutional system that they
epitomize, were drawn from recent testimony before a subcommittee of the
Committee on Government Reform, the Subcommittee on National Economic
Growth, Natural Resources, and Regulatory Affairs.

Subcommittee Vice Chairman Paul Ryan testified that “The
Environmental Protection Agency (EPA) stubbornly asserts that it has
authority to regulate carbon dioxide (CO2) — even though Congress has
consistently rejected regulatory proposals to control greenhouse gas
emissions.” A series of detailed correspondence between the EPA and the
subcommittee made clear that the EPA is entirely uninterested in
discovering the will of the Congress or in recognizing how completely
the ambition to regulate CO2 extends beyond the EPA’s legal and
traditional mandate. A regulatory regime to control CO2 would be a
project roughly on the scale of regulations to control the use of oxygen
by American mammals and would have a corresponding effect on the
American business metabolism. This would be bad enough if the Congress
had authorized it. And yet, the EPA is evidently eager to initiate such
an effort without even the benefit of legislative authority and, indeed,
in defiance of the peoples’ representatives.

Another example is the Food and Drug Administration’s recent attempt
to assert regulatory authority over cigarettes on the spurious claim
that they were really “pharmaceutical products.” Vice Chairman Ryan
noted that this effort “flout[ed] both the plain meaning of the Food,
Drug, and Cosmetic Act and the FDA’s longstanding interpretation of that
Act.”

A third example so clearly illustrates the tendency of a lawless
executive branch to make its own law that it is worth quoting Ryan’s
remarks in full:

Perhaps the most shocking agency power grab in recent
months is the Department of Labor’s (DOL’s) proposed regulation to
expand unemployment insurance into a program of paid leave for parents
who voluntarily quit or take time-off from their jobs. This proposed
rule, popularly called Baby UI, could jeopardize the solvency of State
unemployment insurance trust funds. Worse, it is illegal. For 65
years, DOL has interpreted the Federal Unemployment Tax Act as
permitting unemployment compensation payments only to persons who are
involuntarily jobless — the truly needy. Furthermore, when Congress
enacted the Family and Medical Leave Act, it limited the program to
unpaid leave and exempted small businesses. Under DOL’s proposed rule,
unemployment insurance would be used for paid leave and small businesses
would not be exempt. Why do I call this shocking? The Subcommittee
reviewed DOL’s internal legal analysis and found that DOL was well aware
that the rulemaking lacked a valid grant of statutory authority and
probably could not survive a court challenge. Yet that did not stop DOL
from charging ahead.

You get the point. As the clock ticks inexorably toward the
conclusion of an administration wholly devoted to such power grabs, it
is no wonder that even the Washington Post has detected an increased
energy bubbling up from under federal rocks from the White House to
California. Last month, the Post noted, the EPA rushed new water
pollution regulations into print days before final Congressional passage
of a bill that explicitly prohibited the action. The Post reported that
“Sen. Tim Hutchinson, R-Ark., co-author of the rider, called the
maneuver “a tremendous thumb-in-the-eye to the United States Congress.”

What can be done to prevent or slow the wave of illegal or, at best,
unscrupulous actions by the exiting Clinton administration?
Unfortunately, in the short term, not much. The most important
response, for now, may be to just contemplate the root causes of the
situation in the hope that we can eventually reverse them. Clintonism
is the fruit not of a particular failing in our national politicians,
but of the moral abdication by the entire American people. It is true,
as one witness testified before the committee, that in its acquiescence
in the regulatory regime, Congress fails the people in its most
important job of all — assuming responsibility for the affairs of the
nation. And yet, the decades of Congressional avoidance of
responsibility — tacitly allowing executive branch bureaucrats to issue
the regulations by which most of us are actually governed — have been
but one aspect of our broader and deeper wish to put down the burden of
self-government.

So much of the evil of our time is the accumulated result of the
tendency of our fallen nature, particularly in times of lazy prosperity,
to let someone else make the difficult decisions, impose the heavy costs
and accept the awkward responsibilities of human life. As our material
prosperity has increased, our ambition to remain vigilantly responsible
for the excellence or mediocrity of our public life has diminished.
Wealth and peace have dimmed our spiritual vision and many of us can no
longer even remember, or have never known, the sweet taste of a life
lived in the pursuit of self-ordered liberty for its own sake. We look
back on our ancestors and can see only an apparently cranky and
irrational insistence to “do for themselves” rather than accept an
abundance from others. We fail to see the spirit of moral zeal that
made their local communities of freedom, and the nation which they
composed, a land of blessed liberty.

At length, of course, the representatives of such a people will
themselves lose the taste for self-government. The Constitution states
that “All legislative powers herein granted shall be vested in a
Congress.” The Founders intended the permanent possession of the
legislative power by a body of men truly representative of a responsible
and self-governing people. But now the people, and hence their
representatives, seem to have tired of the burden and, as always in
human history when the spirit of freedom fades, a class of clerks,
zealots and manipulators has grown like weeds in the neglected corners
of power; like weeds sprouting and growing frantically in the spring,
they will seize the next few months of opportunity to plant roots, grow
strong and leave seeds for the next season of opportunity.

Bill Clinton has been an evil growth — and he has planted widely and
thoroughly. But cursing the weeds won’t restore the field. For that we
will need to go to work, in season and out of season, to root-up the
many seedlings of tyranny that he has labored, and still labors, to
plant while we nod, napping in the shade of prosperity.

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