WASHINGTON – President Obama’s use of executive actions to govern while bypassing Congress is well known, particularly after his move in November to grant amnesty to 5 million illegal immigrants.
What is perhaps not as well-known is the president’s increasingly frequent use of a second powerful tool to go around Congress – regulations.
And those regulations, often carrying the full force of law, are written by unelected bureaucrats working in departments overseen by the administration.
“The reason that matters is because as bright and hard-working and well-intentioned as our friends in the executive branch bureaucracies might be, they don’t work for you,” U.S. Sen. Mike Lee, R-Utah, told WND.
He added, “You can’t fire them every two years, as is the case with representatives, or every six years, as is the case with senators. But you can fire your representatives and senators. And so, the ultimate decision-making authority needs to rest with people who are elected.”
For example, just Thursday, the White House told reporters it would not wait for legislation to implement so-called “net neutrality” rules because it would have the Federal Communications Commission, or FCC, simply write new regulations.
The White House claims the regulations would ensure Internet service providers treat all web content fairly, but critics say it would give the federal government virtual control over the content of the Internet.
For instance, they say the government could effectively censor content it finds objectionable by simply slowing the delivery speed of such material.
Additionally, broadband companies say the burdensome regulations would drive up costs and drive down investment and innovation.
Republicans are trying to come up with their own, less-burdensome legislation, but it appears Obama can simply veto any such bill and get exactly what it wants, because a White House spokesman said the administration believes the FCC has the legal authority to make changes.
The Internet is hardly the only area the Obama administration has governed by regulation, as these recent headlines suggest:
- Nov. 24, 2014: White House quietly releases plans for 3,415 regulations ahead of Thanksgiving holiday
- Dec. 23, 2014: Obama administration crams over 1,200 new regulations just before the New Year
- Dec. 31, 2014: Report: 21,000 regulations so far under Obama, 2,374 set for 2015
Perhaps the most startling statistic was cited by Lee, who told WND for every one page of legislation signed into law there are 100 pages of regulations.
And those regulations are written by unelected bureaucrats with little, if any, input from the people’s elected representatives in Congress.
Additionally, Congress has virtually handed that unhindered rule-making power over to bureaucrats with little resistance.
Federal regulations attached to laws could be considered the very definition of red tape. To find which new rules have been proposed and what they would do, the average citizen would have to scroll through thousands of entries on an obscure government website.
Lee offered an even more graphic illustration, on display in the reception area of his D.C. office: A small stack of 800 pages comprising the bills passed in 2013, dwarfed by a cabinet full of the 80,000 pages of proposed regulations those bills generated.
The 80,000 pages of regulations, when stacked end to end, are about 10 feet tall. The 800 pages of laws are only a few inches tall.
Lee summed it up succinctly by pointing out, “For every one page of law we pass, they pass 100.”
The senator recently sat down with WND in his office to detail how Congress has handed its power to unelected bureaucrats.
He explained how that has happened by degrees and in “lots and lots” of increments.
“When you add up all the laws that give discretion to executive branch agencies, you have, for instance, many hundreds of instances of delegation of regulatory authority in Obamacare. And you likewise had many hundreds instances of delegation of authority in the Dodd-Frank act a few years ago.
“You add those two bills up with all others that have been passed in the last seven or eight decades since Congress has really started taking this approach, and you get a lot our law being made by executive branch bureaucrats.”
Even though those bureaucrats are supposed to be carrying out broad directives from Congress, they can, in practice, implement the administration’s agenda, sometimes in crucial and hotly-contested policy areas.
In fact, energy and environment laws generate more regulations than any other category, with 139 news rules published by the federal government just in the first half of December.
Still to come in 2015 are highly controversial new regulations from the Environmental Protection Agency, or EPA, on:
- Hydraulic fracturing, or fracking: Rules targeting methane emissions could stunt the U.S. energy boom, according to critics. They also say the rules are unnecessarily because methane is a valuable commodity producers are trying to capture, not release.
- Power plant emissions: A rule would seek to cut carbon emissions by 30 percent by 2030, which Republicans and industry groups say will wipe out the coal industry.
- Ozone standard: A proposal to lower the pollution threshold from 75 parts per billion to a level between 65 and 70 parts per billion under the Clean Air Act. Business groups claim it could turn into the EPA’s costliest rule, ever.
- “Waters of the United States”: A redefinition of what is a waterway under the Clean Waters Act. Sen. David Vitter, R-La., said it “may be one of the most significant private property grabs in U.S. history.” The senator said it could give the EPA authority over virtually any wet area in the country, while at the same time providing a new tool for environmental groups to sue private property owners.
“Now, the problem with this is, number one, we are supposed to be making the law,” said Lee.
He cited the first section of the first article of the Constitution, which reads, “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.”
“‘All legislative powers’ means all power to make law,” he explained. “The power to make law is the power to prescribe rules which carry the force of government, which will be enforced by government. That means we’re supposed to be making laws, not lawmakers. Too often we’re making lawmakers, and we’re making lawmakers out of people who are not accountable to the government.”
Empowering unelected lawmakers is not the only problem. Not having to answer to voters, bureaucrats can spend freely.
“Now that’s about two-thirds of what our income tax laws impose on our economy. And yet this is sort of a backdoor tax that people don’t see. A lot of people say, well, these costs are borne by big, wealthy corporations.”
He said, in a sense that is true, but really, the people who pay for those are hard-working Americans, poor and middle-class Americans who find that everything they purchase, goods and services, become more expensive as a result of that $2 trillion cost.
“They also find that they make less. They pay not only higher prices on goods and services but they also pay those costs in terms of diminished wages and unemployment and underemployment. So this is a big problem.”
The numbers back him up, according to an Office of Management and Budget, or OMB, report.
- Obama has issued 406 unusually costly regulations over his first six years in office.
- Obama has issued nearly 50 percent more of what the OMB calls “economically significant” regulations than did President George W. Bush.
- Obama has set a record pace for issuing regulations, filing 468,500 in the Federal Register.
Despite Obama’s prolific pace, the outsourcing of power by Congress to bureaucrats has been a growing problem pre-dating the current administration, one that has become an institutional rather than a partisan problem over the last few decades.
But Lee told WND, “There is a relatively simple fix to it, or at least start fixing the problem.”
“It involves passing a bill called the REINS Act. It stand for regulations in need of scrutiny. Rand Paul is the sponsor of it in the Senate. I’m an original co-sponsor with him. It’s passed the House of Representatives every year, the past three years in a row. But it has yet to receive a vote in the Senate. That needs to change.”
The way the senator described it, the act did sound fairly simple.
“It says that for each of these new regulations that come out, if it’s a major rule, as defined by the Office of Management and Budget, based on its significant impact on the American economy, the new regulation cannot take effect, it does not carry the force of law, without it first being passed into law by the House and by the Senate and signed into law by the president.”
Lee suggested that would fix the problem of having bureaucrats function as unelected lawmakers.
“[I]t reinvigorates the same legislative process created by the Constitution, where legislation is suppose to pass through the House and the Senate and be signed into law by the president. Then, and only then, does it become law.”
Now that Republicans control both chambers of Congress, there is a good chance the REINS Act will be sent to the president’s desk.
Whether he signs it, of course, is another matter.
Follow Garth Kant @DCgarth