Executive Branch Administers, Congress Makes Policy

Washington Post columnist Charles Krauthamer cites the Department of Homeland Security’s draft memo proposing adminisrative measures to allow illegal aliens to remain in the country to explore the “Annals of Executive Overreach,” that is, the Obama Adminstration’s circumvention of Congress in writing law.

Krauthammer’s most powerful example is the EPA’s plans to misuse the Clean Air Act to control greenhouse gas emissions, achieving through regulation the policies — the laws — that Congress has explicitly rejected. He concludes:

Everyone wants energy in the executive (as Alexander Hamilton called it). But not lawlessness. In the modern welfare state, government has the power to regulate your life. That’s bad enough. But at least there is one restraint on this bloated power: the separation of powers. Such constraints on your life must first be approved by both houses of Congress.

That’s called the consent of the governed. The constitutional order is meant to subject you to the will of the people’s representatives, not to the whim of a chief executive or the imagination of a loophole-seeking bureaucrat.

The Washington Examiner editorialized Thursday, also pointing to the immigration memo as another example of the Obama Administration’s power grabs. From “Administrative alternatives = stealth amnesty“:

[The] leaked internal memo has struck a nerve in the body politic precisely because it is only the latest of a growing list of examples of the Obama White House seeking to circumvent the popular will.

For example, while hiding behind a misguided Supreme Court decision that gave it the power to declare carbon dioxide a “pollutant,” the Environmental Protection Agency has started what amounts to an end run around Congress with a major revision of the 1970 Clean Air Act. Millions of previously unregulated commercial facilities, including small office buildings, stores and commercial kitchens, will soon be ensnared in stifling regulations that Congress never authorized or approved.

Another recent example of this willingness to ignore Congress is the U.S. Treasury’s apparent consideration of the $1.6 billion tax break for trial lawyers — allowing deductions for expenses from contingency lawsuits — that Congress has declined to act on.

At Shopfloor, our immediate concern is the Imperial EPA’s scheme to impose an unprecedented regulatory regime on greenhouse gas emissions — never authorized by Congress — that would wreck U.S. competitiveness. But as Krauthammer and the Examiner argue, what’s at stake is the separation of powers, America’s constitutional order and respect for the will of the people.

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