Friday, January 7, 2011

Obama's plan to deal with new Congress: Bypass it

Federal agencies legislate policies that Congress can't pass

What is he thinking?
In a disturbing trend that should alarm Georgians of both parties, the Obama Administration is increasingly enacting policies through regulatory agencies that Democrats in Congress either cannot or will not pass.  This legality of this tactic is questionable, but without a doubt it circumvents the will of the people and their elected representatives in Congress.  When the people of Georgia, as well as a majority of voters in other states across the country, voted to end the Democratic majority in the House and reduce it in the Senate, it was a clear rejection of the policies that President Obama is enacting anyway.

One of the first indications that President Obama intended to circumvent the will of the people and Congress was the FCC’s recent implementation of net neutrality rules.  The decision by a party line vote among members of the FCC’s ruling board was at odds with a federal court decision only eight months earlier which said that Congress had not given the FCC authority to regulate the internet.

Similarly, just before Christmas, the EPA announced that it would begin regulating carbon emissions from power plants and oil refineries under the Clean Air Act.  Two days later, a federal court denied a request by Texas for an injunction allowing it to delay issuing greenhouse gas (GHG) permits until a permanent ruling on the regulations is reached. 

Obama’s EPA had long threatened to issue regulations on carbon dioxide and issued an endangerment finding for CO2 in April 2009.  Congress never acted on the matter, largely because of public opposition to cap-and-trade and voter anger in the wake of the health care reform law’s passage.  The revelation that climate scientists worked to intimidate skeptics into silence and covered up data that did not fit their conclusions also contributed to opposition.

Now, the EPA is doing by decree what Congress declined to do by legislation.  Central to the opposition to cap-and-trade were the realizations that it would be expensive, ultimately meaningless, and that it would handicap US industry.  The biggest flaw in the plan (and there are many) is that other countries, such as China, are not placing limits on their own CO2 emissions.  With EPA regulation, we are likely to see rising energy costs, slower economic growth, and little or no difference in the global climate.  Since CO2 is now a dangerous gas, we can expect further government encroachment into areas that were previously unregulated.  In addition to factories and refineries, numerous other sources (schools, restaurants, hospitals, cars) emit enough CO2 for the EPA to regulate.

It was also recently revealed that new regulations had secretly been issued that authorized end-of-life counseling for Medicare patients.  Democrats had tried to include this provision in President Obama’s health care reform law, but it was ultimately withdrawn amid talk of “death panels” and rationing.  Conservatives, and the American people in general, were concerned that government involvement in end-of-life planning could be used to try to convince the sick and elderly to refuse treatment in order to lower costs for Medicare. 

Rep. Earl Blumenauer
Such concerns are not unfounded.  Already the FDA has disapproved use of the breast-cancer drug Avastin.  Many critics believe that the disapproval was due to the cost of the drug, but the FDA maintains that it was due to side effects.  Additionally, there was a furor in 2009 when the government changed guidelines reducing the recommended frequency of mammograms for similar reasons.  Dr. Donald Berwick, Obama’s recess appointee to the head of the Centers for Medicare and Medicaid Services, is on record supporting health care rationing to control costs.

In this case, the government backed off and agreed to withdraw the rule after opposition mounted not only to the rule itself, but the manner in which it was enacted.  The original Notice of Proposed Rulemaking (NPRM) published in July 2010 did not include the rule, while the final regulation published in November did.  This circumvented not only Congress, but the normal period in which people have the ability to review and comment new administrative laws.

An email sent out by the office of Rep. Earl Blumenauer (D-Oregon) makes it seem that the rules were added in a planned bait-and-switch.  The Wall St. Journal reported that Blumenauer, who had tried to insert the end-of-life counseling provision into the original health care law, bragged of the “victory,” but asked them to maintain secrecy.  He went on to say, “Thus far, it seems that no press or blogs have discovered it, but we will be keeping a close watch.”

Secretary Kathleen Sebelius
Also on the subject of health insurance, Health and Human Services Secretary Kathleen Sebelius recently issued a rule arbitrarily setting 10% as the limit for reasonable increases on health insurance rates.  A prime reason that many health insurance rates are increasing is President Obama’s health care reform law and its mandates for insurers.  One thing not included in the new health care law, however, was authority for the federal government to regulate health insurance rates.  Sebelius’ new regulation is yet another example of Obama appointees exceeding the authority given their agencies by Congress.

Another Obama initiative that may bypass Congress is Card Check.  The misnamed Employee Free Choice Act would remove employee’s right to a secret ballot election for union representation and instead certify a union if a majority of employees sends in union cards.  Since the National Labor Relations Board is predominantly Democrat in a Democratic administration, the same tactic could easily be used to make this significant –and unpopular – change in labor law.  Democratic member of the National Labor Relations Board, Mike Pearce, has already hinted that new regulations will be more union-friendly.

President Obama’s use of executive power to make sweeping changes to law and bypass Congress may be unprecedented in US history.  Certainly if President Bush had used similar tactics to pass legislation such as the PATRIOT Act, he would have been roundly – and rightly – criticized.  While such executive legislating is questionable under the Constitution, it certainly impedes on Congress’ power to make new laws and threatens the separation of powers and the checks and balances between the executive and legislative branches.  It is a tactic that would be more expected of Venezuela’s Hugo Chavez or Russia’s Vladimir Putin than an American President.

The new Congress should act swiftly to rein in President Obama’s regulatory agencies.  It should be easy to obtain a bipartisan agreement since congressional Democrats would also have an interest in preserving Congress’ constitutional authority to make laws.  This would likely involve passing laws that clearly state that these agencies are overstepping their bounds and limiting their authority.  If this trend continues, a resolution censuring President Obama and his regulatory heads might be appropriate. Georgians and voters everywhere should ask their representatives in Congress to take action.

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