The King’s Prerogative

English: President Barack Obama's signature on...

English: President Barack Obama’s signature on the health insurance reform bill at the White House, March 23, 2010. The President signed the bill with 22 different pens. (Photo credit: Wikipedia)

We have talked several times about the rise of administrative law and it’s almost exact similarity with the King’s Prerogative. You can find those articles here, here, here, and one here at Jess’, nearly all of those articles also have links, if you’re interested.

Today we are going to speak of how the Obama administration and its Democratic sycophants are defending it. In the Affordable Care Act (ACA, Obamacare, and other less complimentary names), it states clearly and unequivocally, that to receive a subsidy one must purchase through an exchange established by a State.

In fact that was one of the major inducements included to try to force the states to establish exchanges. A majority of the states, being more attuned to the people than Washington is, refused. And the matter came to the DC court last week, which ruled that the words meant what the words said. That was what the Democrats had campaigned on back in the effort to pass the law, but now, they find it most inconvenient, since it means that many Americans will have to pay the full price of the overpriced, not very good insurance available on the exchanges.

So now, not understanding apparently, that we were listening (and that You-Tube exists) they are now saying that what they meant was an exchange established by a state or by the administrative bureaucracy of the federal government. Most of the administration, legislature and judicial officials owing loyalty to the Democratic party are supporting this nonsense, and some courts will no doubt rule accordingly. And so we are likely to end up at the Supreme Court again.

On Sunday Angelo M Codevilla wrote on the Library of Law and Liberty on this. Here is a bit of it.

[...]America has moved away from the rule of law in recent decades, as more and more of the decisions by which we must live are made by administrative agencies in consultation with their favorite constituencies and judges rather than by the people’s elected representatives. More and more, statutes passed by Congress are lengthy grants of power to administrative agencies, the content of which is determined by complex interactions between bureaucrats, special interests, and judges aligned with either. Hence House Minority Leader Nancy Pelosi’s famous statement—that the ACA’s meaning would be determined only after its passage—was true of it and most other modern legislation as well. This is the rule of men, not of law.

But the transition away from the rule of law has been masked by the (ever thinner) fiction that the administrators are merely filling in the interstices of laws. Were they to prevail, the administration’s arguments for casting aside the ACA’s explicit provision because it conflicts with its will and its clients’ convenience would mark the dropping of the mask. America’s transition from the rule of law to the rule of the sovereign, largely accomplished some time ago de facto,would now be fulfilled de jure. Openly, this President and his partisans would have trumped law by will. Thereafter, continuing to pretend that America lives by law would be a mockery.

The importance of this is difficult to exaggerate. The nation’s slide into something foreign to its past would accelerate.

Barack Obama is not the last President America will ever have. Sooner or later, someone will come into the presidency representing a majority of Americans who—rightly or wrongly—may be aggrieved by what they feel are measures that the previous administration and its partners have shoved down their throats. They may be eager to engage in retaliatory activity with lots of compound interest. The administrative machinery, the legal arguments, and the political precedents would be ready for them.[...]

You really need to read it all

This morning Robert Tracinski also wrote on The Federalist on this. He shows that this type of legislating is what we increasingly do. Here’s a bit of that:

[...]But the big question is: why do they think they can get away with this? Why do they think they can write something into the law, go around for a couple of years explaining that provision to audiences, and then pretend later that it wasn’t there at all and it’s patently ridiculous for anyone to think it ever was?

Partly this a measure of crass partisanship, and partly it’s a measure of desperation. Without the subsidies, what happens to ObamaCare? And without ObamaCare, what does their messiah have to show for his presidency?

But this also fits into a larger context. They think they can get away with rewriting the law on the fly because of the way we legislate now. For more than a century, it has become increasingly common for Congress to write laws that declare a broad, vague goal without clearly defining the specifics of its implementation—and then leave it to bureaucrats in federal agencies to fill in the blanks.[...]

Again, you should read his entire article

But the main takeaways here are that the legislative authority in our system is vested in the Congress, and only the Congress. One of the results of this mispractice is that Congress can evade their responsibility for what the legislation says, and simply blame HHS or EPA or whatever bureaucracy is concerned. That is not what the Founder’s intended. The bureaucracy (and the executive generally) were established to enforce the laws the Congress passed, essentially without comment, although it wouldn’t do any harm if the Legislative and Executive branches were to occasionally remember that they also have sworn to uphold the Constitution.

In truth this practice is not measurably different that The Statute of Proclamations (1539) that allowed Henry VIII to rule as a despot. This allowed the King to issue proclamations which had the force of an Act of Parliament.This essentially did away with the need for Parliament. And that is pretty much what we are seeing with Obama’s reliance on his “pen and a phone”. I should note that very soon after Henry’s death that Act of Proclamations was repealed, although all the way to 1689 English Monarchs kept trying personal rule under various guises.

This was one of the abuses that the Constitution was specifically written to prohibit. We’ve let it sneak back in, in the guise of administrative law.

Nothing new under the sun is there?

 

You cannot rewrite laws to achieve your political agenda

The EPA was directed to set standards for radi...

The EPA was directed to set standards for radioactive materials under Reorganization Plan No. 3 (Photo credit: Wikipedia)

We feature Marita Noon here fairly often, she is one of the best on energy affairs, and I have found her point to be correct almost always, and her conclusions are just as trustworthy. This comes via RedState. a site I like although do not always agree with (depends on the contributor, mostly). Here’s Marita.

 

Now that the dust has settled on the Supreme Court’s 2014 session, we can look at the decisions and conclude that the Administration received a serious smack down. Two big cases got most of the news coverage: Hobby Lobby and the National Labor Relations Board’s (NLRB) recess appointments. In both cases, the Administration lost. At the core of both, is the issue of the Administration’s overreach.

Within the cases the Supreme Court heard, one had to do with energy—and it, too, offered a rebuke.

You likely haven’t heard about Utility Air Regulatory Group (UARG) v. Environmental Protection Agency (EPA)—and may think you don’t care. But with the session over, UARG v. EPA makes clear the Court’s trend to trim overreach.

The UARG v. EPA decision came down on June 23. None of the major news networks covered it. Reviews of the 2014 cases, since the end of the session, haven’t mentioned it either. The decision was mixed—with both sides claiming victory. Looking closely, there is cause for optimism from all who question the president’s authority to rewrite laws.

A portion of the UARG v. EPA case was about the EPA’s “Tailoring Rule” in which it “tailored” a statutory provision in the Clean Air Act—designed to regulate traditional pollutants such as particulate matter—to make it work for CO2. In effect, the EPA wanted to rewrite the law to achieve its goals. The decision, written by Justice Antonin Scalia for the majority, stated:

“Were we to recognize the authority claimed by EPA in the Tailoring Rule, we would deal a severe blow to the Constitution’s separation of powers… The power of executing laws…does not include a power to revise clear statutory terms that turn out not to work in practice.”

Emphasis mine and via Marita Noon: You cannot rewrite laws to achieve your political agenda | RedState.

 

What she says here is correct. valid , and beyond a doubt completely true, in point of its effects, both allowed and disallowed.

 

But there is a wider point here as well. We have talked a good bit about how ‘administrative law’ is simply unlawful and unconstitutional. The main article is here, there are others here as well, and there are more coming.

 

This is important, folks. The use of so-called administrative law, which is really the old prerogative power of king’s which drove both the English and American Revolutions come back again, in slightly new camouflage. It is just as pernicious to the ‘Rule of Law’ now, as when it was used by the Stuarts or the Hanoverians. Or indeed by King John, leading to Magna Charta, itself.

 

It’s an unlawful practice that has grown because we have neglected the lessons of history, and the price of correction is getting higher constantly.

 

The View From the North

Barack Obama, President of the United States o...

Barack Obama, President of the United States of America, with Stephen Harper, Prime Minister of Canada. (Photo credit: Wikipedia)

It’s important, I think, to occasionally take a look at how we look from the outside, especially how our friends, especially the really good ones see us. And who would be better friends that the Canadians? What are they seeing, particularly since so many of us admire PM Harper so much. So let’s have a look. The first article is from Colin Robertson of The Globe and Mail it’s entitled

Why Canada wants to feel more love from the U.S.

Living beside the United States, remarked Pierre Trudeau, is like sleeping with an elephant: “No matter how friendly or temperate the beast, one is affected by every twitch and grunt.” The twitching is getting to the Harper government and it has responded with a series of pokes.

A trio of senior ministers – John Baird, Joe Oliver, Greg Rickford – travelled to New York this month to voice what Stephen Harper calls our “profound disappointment” over the delayed Keystone XL KXL pipeline. Said Mr. Oliver: “This isn’t right, this isn’t fair.”

In Winnipeg, Agriculture Minister Gary Ritz accused the United States of behaving like a “schoolyard bully” over country-of-origin labelling.

Last week in Washington, Ambassador Gary Doer and MP Rob Merrifield delivered an invitation from House of Commons Speaker Andrew Scheer to Republican House Speaker John Boehner to visit Canada for discussions on KXL and other issues.

If the Obama administration wants further evidence that Canada deserves some attention it should watch the recent exchange between former ambassador Frank McKenna and U.S. Ambassador Bruce Heyman. “It’s like a marriage. It might be really good for you but I’ve got some problems,” said Mr. McKenna of Canadian frustration over KXL and financing the Windsor-Detroit customs plaza.

Canada-U.S. relations operate on three levels: international, intermestic and people-to-people.

Ours is a complex relationship that goes beyond the traditional diplomatic conventions. Supported by the hidden wiring of connections between provinces and states, business and civil society, it is usually a model for neighbourly relations.

In international summitry, President Barack Obama and Prime Minister Harper are aligned on the big-ticket issues of peace and security, banking and finance, even if they differ on approaches to climate change.

The people-to-people relationship is solid. Americans like us more than we like them. We share much in common, at work and at play, although beating Team USA at hockey is now our main Olympic goal.

It’s on the transactional level of trade and commerce that we have problems, with KXL top of the list. For Canada, KXL is i>the problem with the partner. For the United States, KXL is a problem with a partner.

via CDFAI – New From Colin Robertson.

If I’m honest (and I always try to be) I think he’s pretty much right on all counts

Daryl Copeland give us a Canadian view of the world. While I don’t completely agree with everything he says here, his view is certainly at least as valid as mine, and I think we should at least consider what he says.

Blowback: Iraq and the law of unintended consequences

Under relentless pressure from the jihadist movement Islamic State of Iraq and Syria (ISIS), the political collapse and territorial disintegration of Iraq in recent weeks has been striking. If this process is not reversed, the emergence of a radical Islamist enclave is likely to cause serious security problems for decades, both in the Middle East and beyond.

That has been the focus of most reporting to date. The big-picture implications are even more profound.

To be sure, the roots of the current crisis are complex and tangled. They can be traced back at least to the unravelling of the Ottoman Empire following the First World War, and the subsequent division of the territorial spoils by Britain and France according to the terms of the Sykes-Picot Agreement.

That said, and notwithstanding Tony Blair’s apparent amnesia, much of the current disaster appears directly attributable to the ill-fated decision on the part of the United States and its coalition allies to intervene militarily in Iraq 2003-11. As it happened, much of the “shock and awe” was reserved for the invaders. That colossal strategic error cost some $1.7 trillion, resulted in the deaths of over 150,000 Iraqis and 4,800 coalition soldiers and, together with the Great Recession, spelled the end of unipolarity — American international dominance.

While those costs are extraordinary, the longer term damage may prove even greater. The ISIS gains in Syria and Iraq may be only the beginning, and could give rise to further developments inimical to peace, progress and prosperity, both in the region and further afield. The obvious hazards are related to Islamic extremism, sectarian strife, civil war and ethnic partition.

Of even greater concern, however, is the continued militarization of international policy.

via CDFAI – In the Media

I think one of the key points here is that the world is seeing that the unipolar power structure that has held since 1990 is unraveling. It is doing so because America is letting it, nothing has really changed, except for the will of our government. If that is what the American people want (which I doubt, very strongly) then so be it. If it isn’t we need to start thinking about what we are going to do after Obama. We haven’t been thinking long-term we have been fighting a reactive (not pro active) battle against the administration, and that is why we’re losing. What are we for. Americans are an optimistic forward-looking people, we’re not known for being against things but for better things. We should be doing politics the same way.

What are we for; and will we fight for it?

That Was the Week That Was

thobamaSo, it’s been quite a week, hasn’t it? And we haven’t even got to the ‘Government by Blog Post’ Friday document dump yet. So we’ll see what else can go wrong.

I don’t ever tell people how to vote but if I was a Mississippian, I would not vote for Cochran, this kind of despicable conduct has no business in America, let alone in a so-called principled party. And yes, that does mean that I have no use at all for the national republican party. I think it to be no more than the sort-of right facing part of the party of government, and not an iota different from the democratic party. Here’s a couple of stories about it:

Here’s The Worst Part of Thad Cochran’s Victory

MASSIVE VOTER FRAUD UNCOVERED IN MISSISSIPPI GOP RUNOFF ELECTION

Then there is the Mexican (used to be) border

AS THE SOUTHERN BORDER BURNS, THE DEMOCRATS FIDDLE

Then there is the piece of the world formerly known as Iraq. It hard to see how there could have been a worse foreign policy debacle, short, I suppose, of surrendering to the Soviet Union. It’s bad, it’s going to get worse, and I don’t have a clear idea of what, if anything we should do.

Why an Isis caliphate is no more than a pipe dream

That’s sort of reassuring, isn’t it? Then there is this:

The Mouse that roared

I frankly don’t know which of them is right, if either but. If I had to bet, I’d bet on an American Marine before I bet on any sort of reporter. If he’s right, we are in for a very long and bleak few years, and if I was a European, I would think very strongly about whether I wanted to place my entire defense in the hands of the American led (sort-of) NATO. Because by the time we get ourselves sorted out again, Europe is very likely to look like it did in late 1941, except the Turk is far more bloodthirsty than Hitler ever was. Of course, it probably doesn’t really matter since Europe is committing suicide by abortion anyway.

Then there is the Veteran’s Administration

VA Flags “Disgruntled” Vets

Obamacare anyone, or would you prefer the NHS?

And the Internal Revenue Service

Lies, Damned Lies, and the IRS

And that is pretty much the news from ‘Chicago on the Potomac’

The Age of Mafia Government

Pretty depressing round-up isn’t it? But you know this is still America, and we (most of us, anyway) are still Americans who remember a free country. So let us join with Bill Whittle to

He’s right you know, we built it, with sweat, and blood, and tears, and we can damned well rebuild it as well, and laugh at the losers while we do.

Since you hung around through all that crap they’re throwing at us, you deserve a treat. How about this.

And a hat tip to Big Fur Hat at I Own the World for reminding me that we need some cowbell in our life.

 

“World War I on the Home Front,” By Ralph Raico

1934_cartoonThis is considerably heavier (and longer) than what I usually do on Saturday. That’s not an apology, it’s also important. Most of it comes from Nomocracy in Politics, which is a wonderful source for us. Many of you have seen my utter disgust for Woodrow Wilson, and my belief that he ushered in many of the policies that slowed down or maybe stopped the miracle that was America. And I’ll bet you haven’t heard any of this in school, because even back when I was in school, the official line was that Wilson was a great president. He wasn’t. In fact, he may have been the worst of American presidents, even including Obama, if for no other reason than Obama is inconceivable without Wilson.

The break point to me is in three parts:

  1. The income tax, that penalizes Americans for success.
  2. The Federal Reserve, that allows the government to spend money that it didn’t have, without specifically borrowing it, and
  3. World War I. This was the worst of all because the government did all sorts of things that were (and are) illegal and or unconstitutional.

In this essay, Ralph Raico, summarizes very well the pernicious changes instituted by Wilson during the war. You’ll note that most of them continue in force. As you are reading this (and do follow the link) I want you to think about how much freer our society was before these things

The changes wrought in America during the First World War were so profound that one scholar has referred to “the Wilsonian Revolution in government.”[1] Like other revolutions, it was preceded by an intellectual transformation, as the philosophy of progressivism came to dominate political discourse.[2] Progressive notions — of the obsolescence of laissez-faire and of constitutionally limited government, the urgent need to “organize” society “scientifically,” and the superiority of the collective over the individual — were propagated by the most influential sector of the intelligentsia and began to make inroads in the nation’s political life.

As the war furnished Lenin with otherwise unavailable opportunities for realizing his program, so too, on a more modest level, it opened up prospects for American progressives that could never have existed in peacetime. The coterie of intellectuals around the New Republicdiscovered a heaven-sent chance to advance their agenda. John Dewey praised the “immense impetus to reorganization afforded by this war,” while Walter Lippmann wrote: “We can dare to hope for things which we never dared to hope for in the past.” The magazine itself rejoiced in the war’s possibilities for broadening “social control … subordinating the individual to the group and the group to society,” and advocated that the war be used “as a pretext to foist innovations upon the country.”[3]

Woodrow Wilson’s readiness to cast off traditional restraints on government power greatly facilitated the “foisting” of such “innovations.” The result was a shrinking of American freedoms unrivaled since at least the War Between the States.

It is customary to distinguish “economic liberties” from “civil liberties.” But since all rights are rooted in the right to property, starting with the basic right to self-ownership, this distinction is in the last analysis an artificial one.[4] It is maintained here, however, for purposes of exposition.

As regards the economy, Robert Higgs, in his seminal work,Crisis and Leviathan, demonstrated the unprecedented changes in this period, amounting to an American version of Imperial Germany’s Kriegssozialismus. Even before we entered the war, Congress passed the National Defense Act. It gave the president the authority, in time of war “or when war is imminent,” to place orders with private firms which would “take precedence over all other orders and contracts.” If the manufacturer refused to fill the order at a “reasonable price as determined by the Secretary of War,” the government was “authorized to take immediate possession of any such plant [and] … to manufacture therein … such product or material as may be required”; the private owner, meanwhile, would be “deemed guilty of a felony.”[5]

Once war was declared, state power grew at a dizzying pace. The Lever Act alone put Washington in charge of the production and distribution of all food and fuel in the United States.

By the time of the armistice, the government had taken over the ocean-shipping, railroad, telephone, and telegraph industries; commandeered hundreds of manufacturing plants; entered into massive enterprises on its own account in such varied departments as shipbuilding, wheat trading, and building construction; undertaken to lend huge sums to business directly or indirectly and to regulate the private issuance of securities; established official priorities for the use of transportation facilities, food, fuel, and many raw materials; fixed the prices of dozens of important commodities; intervened in hundreds of labor disputes; and conscripted millions of men for service in the armed forces.

via “World War I on the Home Front,” By Ralph Raico | Nomocracy In Politics.

There were, of course, precursors going back at least to Lincoln and becoming noticeable in Theodore Roosevelt’s, and Taft’s administrations but, they were just that: precursors. This is when Progressivism got its real hold on our country–much to our detriment.

Can we go back? I doubt it, at least not all at once, unless the whole thing falls apart, like the Soviet Union in 1989, and that’s a hard way to fix things.

Should we? Yes we should. We were the wonder of the world, some things were harder but on balance we did more for ourselves–and for the world–than we have since. This is where we came from and how we did it.

Maybe not all the way, all at once. It did take us a hundred years to get this screwed up, but we need to change the direction, or we will go off that cliff at some point. If that happens, everything we have stood for, individual liberty, free market success, free innovation and all the rest will be lost, including the free world, maybe for a long time, maybe forever.

But remember, on this journey, you are responsible for you and yours, no one else is.

Not One of Us?

At some point, we will have to decide the question. Here is Bill Whittle’s decision.

I’m pretty much in agreement. How do you see it?

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