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?

Redskins and the Rule of law

Redskins primary logo 1972-1981, 1983-present

Redskins primary logo 1972-1981, 1983-present (Photo credit: Wikipedia)

Let’s talk about this Washington Redskins thing a bit shall we. in many ways, it’s a shiny squirrel but, there is some meaning buried in there as well, that we should think about. The thing is that the Redskins name, and the associated image is a trademark (abbreviated this way ™). in essence that means that if you want to sell a coffee mug with the logo or the name, you have to pay some amount of money to the team, and if they find your use inappropriate they can refuse to let you. In the same way the name nebraskaenergyobserver is mine as is my Gravatar. So is in a way the design and layout of the blog and so forth. The same is true for you, and that is why we all are careful about fair use.

They provide a reasonable assurance when you see them that you are seeing my work, not Harvey Lunchbucket from Podunk’s. Trademarks exist and are enforceable with or without the blessing of the US Patent and Trademark Office. In other words, the Redskins still own their name and their rights are enforceable in court. Volokh put it this way yesterday:

My tentative view is that the general exclusion of marks that disparage persons, institutions, beliefs, or national symbols should be seen as unconstitutional. Trademark registration, I think, is a government benefit program open to a wide array of speakers with little quality judgment. Like other such programs (such as broadly available funding programs, tax exemptions, or access to government property), it should be seen as a form of “limited public forum,” in which the government may impose content-based limits but not viewpoint-based ones. An exclusion of marks that disparage groups while allowing marks that praise those groups strikes me as viewpoint discrimination.

And that is the problem here, really. It’s only slightly more difficult for the Redskins to prove their case. And that’s the nub of the matter. it is their property. to decide the name, to decide, who can use it (or not) and how much they should pay for the privilege. It belongs to them, not to me and not to you, and not to anyone else, it’s theirs to use as they wish.

And so in many ways this is a meaningless act of disrespect, for the Redskins, yes, but also for all property. Our blog designs, our homes, our stock holdings, our retirement, all of it. And that goes to the very basis of our society.

Free society is built on property rights. Infringement of their property rights was one of the cause that led to the signing 799 years ago this week of Magna Charta, as well as the Declaration of Independence that hangs next to it in the National Archives. Without that right to private property there is no private sector, which has always been the driving force of our economy. It makes money (as do the Redskins), unlike the government which redistributes wealth (which is not the same as money) which it has taken from one citizen for the benefit of another. See the difference there? Government creates nothing.

In other words, property rights is one of the basics of The Rule of Law, and that is what has set the (mainly) English speaking world off from everybody else, through revolution and civil war, flood, famine, and plenty, our property has always been our property, subject to certain objective rules. And while this case is trivial, it is also a symbol, as have been other cases of our government’s disrespect for the rule of law. That has made many of us comment that we now have a lawless regime (the common term is a banana republic) because in some measure we have become in John Adams words, reversed:

A government of men, not of law

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