Tag Archives: regulation

The Administrative State and the United States

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The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.  Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.

James Madison wrote those words in Federalist No 47.  And yet we have exactly this threat clear and present in the Regulatory State that’s been a-building since FDR’s time in power.  Chief Justice William Howard Taft, in his eulogy to Chief Justice Edward White, said without a trace of irony,

[T]he inevitable progress in exigencies of government and the utter inability of Congress to give the time and attention indispensable to the exercise of powers in detail forced the modification of the rule [held from our birth for the succeeding 140 years that no legislative powers can be delegated].  Similar necessity caused Congress to create other bodies with analogous relations to the existing legislative, executive, and judicial machinery of the Federal Government, and these in due course came under the examination of this court.  Here was a new field of administrative law which needed a knowledge of government and an experienced understanding of our institutions safely to define and declare.

We have, indeed, that whole branch of our judiciary—Administrative Law Judges—created specifically to specialize in interpreting and applying (their interpretation of) the regulations created by our Executive Branch’s Cabinets and Independent Agencies.  The foundation of the belief that they are necessary is illustrated by the explosion of the Federal Register, the government’s primary listing of these regulations, from 2,600 pages in 1936, as FDR was just getting started with his New Deal, to over 80,000 pages by 2010, and with an additional 6,300 regulations (not pages of regulations) finalized by the end of 2012.

The current, wholly out of control state of lawmaking masquerading as rulemaking is illustrated by the byzantine (and at times wholly hidden) rules and rules-in-the-making that enact the Patient Protection and Affordable Care Act and by the Dodd–Frank Wall Street Reform and Consumer Protection Act, of which the Consumer Financial Protection Bureau is described by Todd Zywicki this way:

A centerpiece of the Dodd-Frank financial reform legislation was the creation of a new Federal Consumer Financial Protection Bureau (“CFPB”) within the Federal Reserve.  Few bureaucratic agencies in American history, if any, have combined the vast power and lack of public accountability of the CFPB.  It is an independent agency inside another independent agency, presided over by a single director who is insulated from presidential removal.  Additionally, the Board is outside of the congressional appropriations process.  Finally, its actions are unreviewable by the Federal Reserve….

Proponents of the CFPB argue that extreme independence is justified to insulate it from political pressures.

The plethora of laws that a Progressive government thinks is necessary to guide and direct men’s lives and businesses drives the imperative to generate regulations in order to give flesh and “clarity” to those laws.  But these regulations, these rules, are enacted [sic] by men in sections of government whose placement wholly isolates them from effective oversight by government’s employers—us.  This unaccountability and lack of control over functional lawmaking in which these men engage is an even greater threat to the very freedoms which we hire this government to protect and to facilitate than are that plethora of laws itself.

Keep in mind that lawmaking is properly and wholly a political matter; it must be subject to what those CFPB proponents fear: “political pressures.”  Making law is the task of We the People through our elected representatives in the Congress.  Regulations and rules are a subset of law, and so these must be dealt with by us and our representatives, not by the Executive Branch, whose sole function in this context is to enforce the law, not make new ones or modify or “clarify” existing ones.

Neither can the judiciary have any role in lawmaking; its sole function in this context has exactly two parts: first to decide whether the law before a judge is legitimate, that is, Constitutional (and if not to strike it down), and second if it is legitimate, to apply it as it is written, and not as that judge thinks it ought to have been written or as that judge creatively “interprets” it in order to “update” it for his (understanding of the) times.

Even could the argument be made that regulations are a separate class of lawmaking, wholly different from the statutory lawmaking that We make through our representatives, We have identified lawmaking, in the Constitution which We ratified, as the sole province of us and our Congress.

To solve this, aside from withdrawing the vast majority of regulations currently on the books (an entirely necessary endeavor) we must, which Taft failed to understand, rescind that excess of laws, and we must sharply curtail, if not withdraw entirely, Congress’ delegation of rule-making authority to the Executive Branch.

Full Stop.

Security of Personal Information is an Administrative Burden on Government

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That’s what the Obama administration claims, and they’re actually serious.

The House of Representatives last Friday passed and sent to the Senate the Health Exchange Security and Transparency Act, HR 3811, by 291-122, with 67 (!) Democrats voting in the affirmative, also.

The one-sentence bill says that no later than two business days after any security breach on an ObamaCare site is discovered, “the Secretary of Health and Human Services shall provide notice of such breach to each individual.”

In response to that one sentence bill (who says we need 2,000 pages to write a bill?), the Obama administration, through its OMB, issued a one-page statement decrying the bill, saying, in part,

The Administration opposes House passage of HR3811 because it would create unrealistic and costly paperwork requirements that do not improve the safety or security of personally-identifiable information in the Health Insurance Marketplaces.

After all, the administration said, the Web site is fine, and Americans’ information is secure.  We said so.  So why should we have to tell anyone their information has been stolen or leaked?  They don’t need to know, and telling them would work a hardship on us.

Never mind that this “hardship” is answered by private enterprise as a matter of unfortunate routine.  Is the administration terrified that Obamacare security breaches might surpass the recent Target breach?  Or are they just worried about the political hardship news of such a breach might work on them in the ballot box?

Oh, and half the OMB statement was wholly irrelevant to the issue at hand, being devoted to Obama’s campaign speech of how wonderful Obamacare is.

The statement can be seen here.

A New Phase

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…in the Obama administration’s war on education.

The DoJ and the Department of Education have sent out another of their Dear Colleague letters, this time concerning the disparate impact of punishing minority students in our public schools.  Investor’s Business Daily summarized the letter,

Attorney General Eric Holder and Education Secretary Arne Duncan Wednesday issued “recommendations” urging schools to find ways to avoid suspending or expelling students who act out.  …

The two Cabinet members argued that suspensions deny minority students time in the classroom….

And suspensions of “majority” students don’t have the same effect?  No, that’s not Eric Holder’s and Arne Duncan’s argument.  They argued in their 32 pg letter that “minority” students get the treatment disproportionately—disparately.  Never mind that these students misbehave…disparately.

The danger of applying this pernicious and racist disparate impact meme is clearly identified by Commissioner Gail Heriot of the United States Commission on Civil Rights in her remarks on the Commission’s School Discipline and Disparate Impact report:

There are two sides to the “disparate impact” coin.  Secretary Duncan focuses only upon the fact that, as a group, African-American students are suspended and expelled more often than other students.  By failing to consider the other side of the coin—that African-American students may be disproportionately victimized by disorderly classrooms—his policy could easily end up doing more harm than good to the very group he is attempting to help.

Indeed.  This disparate impact policy on school discipline will have a disparate impact on minority students’ ability to get an education in a classroom full of disparate impact-protected misbehavers.  All while carefully ignoring the underlying causes of one group having a higher misbehavior rate than another group.

More, a footnote in Heriot’s remarks also hints at the fundamental lawlessness of the Obama administration [emphasis added]:

4 [page 98 of the report, the same page as the portion of Heriot’s remarks quoted above] I agree with Commissioner Gaziano that Title VI simply does not permit the Department of Education to proceed against schools on a disparate impact theory and that the Department’s regulation nonetheless adopting that theory, 34 CFR sec. 100.3, is therefore unauthorized by law.  It requires actual discrimination.  See Section 601 (Title VI) of the Civil Rights Act of 1964, 42 USC sec. 2000d (No person shall “on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance”).  See also Alexander v Sandoval, 532 US 275 (2001). I also agree with Commissioner Gaziano that the problem with disparate impact analysis is not simply that it goes beyond what Congress authorized in Title VI; it actually contradicts Title VI.  If one group receives more school discipline than another because (for whatever reason) its members violated more school rules than the other, race-conscious efforts to alter the “disparate impact” are usually themselves discriminatory.

Sadly, this phase, in addition to denying minority students access to their education, is also another example of the unconscious racism of the Left.

Obamacare and Health Spending

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John Goodman, over at NCPA, has an interesting point-out on Obamacare (and on a Paul Krugman New York Times column, but that’s neither here nor there).*  OK, a little bit of here: Goodman cited Krugman as claiming that

Since 2010, when the [the Affordable Care Act] was passed, real health spending per capita—that is, total spending adjusted for overall inflation and population growth—has risen less than a third as rapidly as its long-term average.  Real spending per Medicare recipient hasn’t risen at all; real spending per Medicaid beneficiary has actually fallen slightly.

Then Goodman presented this chart

and then Goodman noted

[T]he chart clearly shows[] nothing happened to the rate of increase in health care spending in 2010—the year ObamaCare was passed.

Yes, the growth rate of health care spending that year was well below the historical average.  But it was just as much below it in 2009, the year before the act was passed!  Health care spending growth in 2010 was exactly the same as it was in 2009.  It remained exactly the same in 2011.  And again in 2012.  Looking only at the numbers, we would have to conclude that nothing that happened in 2010 had any impact whatsoever on health care spending.

On that last point (no Obamacare impact whatsoever), though, I have to disagree with Goodman.  It looks pretty clear to me that Obamacare has utterly halted the downward trend in health care spending growth: that growth has stopped decreasing toward no growth.  If allowed to continue, the trend would have reached zero growth and gone to outright decreases around 2012.

Keep in mind, too, that the spending aspects of Obamacare have not yet kicked in.  Other than the increases in premiums and deductibles, I mean; those are getting started.

 

*Interestingly, Jason Furman, White House Council of Economic Advisers Chairman, had an op-ed in Monday’s Wall Street Journal that also burned through over 1,000 words showing all the ways he alleges Obamacare has slowed “health inflation.”  While also carefully ignoring that already in place declining trend in the years prior to 2010.

YGTBSM

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Here’s another installment in this series, this time (again) with ObamaMart.

Finally get enrolled in an Obamacare health welfare package via ObamaMart?  Don’t die this year.  Don’t take that raise.  Put that baby back where it came from.  You can’t update your package to account for these life changes—that functionality deliberately was put on the back burner in favor of fixing other…glitches…in the Web site.

The list of life changes that you can’t tell ObamaMart about include, in addition to the above,

  • marriage and divorce
  • death in the family
  • new job
  • moving to a different community

Remember, moving to a different community also changes the premiums you have to pay—that community rating thing.

Remember, also, you still have to repay the subsidy payments you received after the raise made you ineligible.  And you still owe the taxes on the raise.

Just be sure, after you’ve separately told your Plan provider about your life change, you go back and tell ObamaMart.  After they get around to fixing this.