Rule by "Executive Order"

[Mdraf]

I would be grateful if the lawyers on this forum could explain to me how the Administration is able to "rule" by executive order without being challenged.  In addition to the Dream Act, Obamacare exemptions etc today I am reading this:

BOULDER, Colo. | EPA chief Gina McCarthy said Wednesday that the Obama administration is finished waiting for Congress to act on climate change and plans to bypass the legislative branch in developing a federal response.....

How can they do this? Let's say a company affected by these new EPA rules refuses to comply. What happens next? Doesn't the EPA have to go to court and the court rule on the lack of authority? Or does the EPA just send in their storm troopers to shut down the non-complying business?

[Pointedstick]

From https://en.wikipedia.org/wiki/Nondelega ... ted_States

In Federal Government of the United States, the nondelegation doctrine is the principle that the Congress of the United States, being vested with "all legislative powers" by Article One, Section 1 of the United States Constitution, cannot delegate that power to anyone else. However, the Supreme Court ruled in In J.W. Hampton, Jr., & Co. v. United States (1928) that Congressional delegation of legislative authority is an implied power of Congress that is constitutional so long as Congress provides an "intelligible principle" to guide the executive branch: "'In determining what Congress may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government co-ordination.' So long as Congress 'shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.'"

For example, the Food and Drug Administration (FDA) is an agency in the Executive branch created by Congress with the power to regulate food and drugs in the United States. Congress has given the FDA a broad mandate to ensure the safety of the public and prevent false advertising, but it is up to the agency to assess risks and announce prohibitions on harmful additives, and to determine the process by which actions will be brought based on the same. Similarly, the Internal Revenue Service has been given the responsibility of collecting taxes that are assessed under the Internal Revenue Code. Although Congress has determined the amount of the tax to be assessed, it has delegated to the IRS the authority to determine how such taxes are to be collected. Administrative agencies like these are sometimes referred to as the Fourth Branch of government.

In other words, there's nothing new here. As long as regulatory agencies organized under the executive branch exist, this kind of thing will continue to happen.

[RuralEngineer]

I'm tired of being bled to death by a thousand cuts. I'm glad the administration has stepped up its program of "rule by fiat" whenever it can't bully, bribe, or charm. Maybe if they keep it up more people will wake up and see who our real enemies are.

[MediumTex]

Part of the problem is that, starting in the 1930s, the legislation coming out of Congress has become VASTLY more complex.

What this legislative complexity means is that it's basically assumed that the federal agencies implementing and interpreting acts of Congress are also going to be given broad powers to develop regulations and issue guidance, and those regulations and the interpretations thereof by the agencies that wrote them are given a lot of deference by courts.

In other words, the only entity that could really stop this executive branch legislative authority would be Congress itself, but the only way to do that would be to make acts of Congress vastly more complex than they already are, and given the constraints of two year congressional sessions and all the business Congress tries to cover, this just isn't realistic.  A typical period to develop final regulations by a federal agency can easily be several years.  Congress could simply never step into that space.

I don't know if that helps, but that's what I see.

In the same way that in general terms "crisis is a friend of the state", I think that legal complexity is a friend of the executive branch.

[Pointedstick]

It's probably a blessing in disguise that Congress doesn't write these regulations themselves. Can you imagine how much more irrational and politicized they would be if every single line of every single text were subject to the political process? At least when the regulations are developed behind the closed doors of bureaucracy, they're relatively safe from national politics before they're finalized.

IMHO the problem isn't really the individual regulations so much as the guidance given to the agencies that leads them to need to write regulations. If congress or the president tells the EPA to make trees more resistant to fire, they've got to come up with a bunch of new regulations somehow. So you wind up with mostly rational regulations to address completely irrational aims.

[MediumTex]

If congress or the president tells the EPA to make trees more resistant to fire, they've got to come up with a bunch of new regulations somehow. So you wind up with mostly rational regulations to address completely irrational aims.

So what you're saying is that you're against fire-resistant trees?

That sounds pretty un-American to me.

[Mdraf]

Back to my question. If a private entity refuses to comply citing the fact that the law passed by Congress does not apply, does the federal branch sue in court or proceed with penalties and other forms of enforcement?

It looks like Congress is willingly ceding its own power to the other two branches.

[Pointedstick]

Back to my question. If a private entity refuses to comply citing the fact that the law passed by Congress does not apply, does the federal branch sue in court or proceed with penalties and other forms of enforcement?

Penalties. You're the one who needs to sue them.

It looks like Congress is willingly ceding its own power to the other two branches.

Exactly. But like MT pointed out, the rise of the regulatory agencies began in the 1930s. So this isn't really new. I don't like it one bit either, but it's not as though this is some kind of Obama power grab. It's just the president issuing guidance to an executive-branch agency created by an act of Congress in the same manner as all presidents have done for the last 80 years. They all do it, and they will continue to until executive-branch regulatory bodies are disbanded, moved under Congress's control, or something similarly dramatic.

[Mdraf]

But where does he get the authority for a new cell phone tax he says he will impose ? By just calling it a "fee" instead of a tax?

[Libertarian666]

There is one rule when dealing with government:
They do whatever they want, and you take it because you have no choice.
It's simple, anyway.

[Pointedstick]

There is one rule when dealing with government:
They do whatever they want, and you take it because you have no choice.
It's simple, anyway.

Yep. He gets the authority from the fact that he commands the most powerful violence-infliction posse in human history.

In all seriousness, he'll probably tell the FCC to impose the new tax, and they already have the power to tax cell phone contracts (just look at all the existing FCC taxes on your bill).

[Benko]

1. It sounds like this discussion has been mostly about regulations.  Obamacare is not a regulation (I dont think).  How does this discussion apply to Obama saying parts of Obama care will not be implemented till whenever?

2.  Does this mean (as some have suggeted) Obama can really implement amnesty for illegal aliens on his own?

3. I'm gathering that no one hear thinks Obama has done this more than predecessors.

4. Obviously any republican president doing similar things would have NY times, CNN/ABC/NBC/CBS/NPR white house correspondents very vocally against them.

[Libertarian666]

1. It sounds like this discussion has been mostly about regulations.  Obamacare is not a regulation (I dont think).  How does this discussion apply to Obama saying parts of Obama care will not be implemented till whenever?

2.  Does this mean (as some have suggeted) Obama can really implement amnesty for illegal aliens on his own?

3. I'm gathering that no one hear thinks Obama has done this more than predecessors.

4. Obviously any republican president doing similar things would have NY times, CNN/ABC/NBC/CBS/NPR white house correspondents very vocally against them.

If by "predecessors" you mean W, then I agree he hasn't done much more. Compared to most other presidents, he has done a lot more in this area.

[Pointedstick]

1. It sounds like this discussion has been mostly about regulations.  Obamacare is not a regulation (I dont think).  How does this discussion apply to Obama saying parts of Obama care will not be implemented till whenever?

Like most laws in the USA, Obamacare is a law that spawns regulations in the executive branch agencies that implement it. The executive gets to direct executive branch agencies in how they implement regulations or what their focus should be. He does this by replacing and/or applying political pressure to the head of the agency, who he gets to appoint.

2.  Does this mean (as some have suggeted) Obama can really implement amnesty for illegal aliens on his own?

Sure, why not? The ICE is an executive branch agency under the DHS umbrella. He could just tell 'em not to stop checking anyone's citizenship status.

3. I'm gathering that no one hear thinks Obama has done this more than predecessors.

Whether he does it more or less isn't that relevant to me. What matters most is that the power always exists; it's simply a matter of time before someone uses it. If we get a president who uses it less, that's a nice bonus, but I like to keep my expectations realistic by  always expecting every politician to take full advantage of their position.

4. Obviously any republican president doing similar things would have NY times, CNN/ABC/NBC/CBS/NPR white house correspondents very vocally against them.

Partially... I think it's true that there's a liberal bias but the major bias is a statist one. The media will tend to rubber-stamp anything politicians say so as to not jeopardize their cushy position of access that makes journalism as easy as attending press conferences and reporting the lies. I mean, witness how little real journalism they did when GWB wanted a pointless war in Iraq.  Even the liberal papers endlessly reported "mushroom cloud" and  "credible threat."

[Mdraf]

At least if we had an official monarchy we could all swoon over the Royal Family's every move.  Hmmmm maybe we already do

[Pointedstick]

Imagine if we had a monarchy where the king is elected every 4 years, and generally has absolute power--within a few flaccid, ill-enforced limits--but does not directly own the country he rules; he is simply the temporary custodian of it. So he does not profit by increasing the capital value of the country; only by extracting capital from it for his own use or those of his friends can he profit from his position.

It doesn't take a genius to see that this incentive structure will tend to attract two types of people: greedy criminal types who want to extract wealth from society to enrich themselves and their friends, and utopian idealists unconcerned with wealth who instead wish to mold society according to their ideas. It will actively repel those with a long-term outlook because everything in the system is designed to defeat efforts at long-term planning and grant no tangible reward for improving a country's capital stock or GDP.

[MediumTex]

Imagine if we had a monarchy where the king is elected every 4 years, and generally has absolute power--within a few flaccid, ill-enforced limits--but does not directly own the country he rules; he is simply the temporary custodian of it. So he does not profit by increasing the capital value of the country; only by extracting capital from it for his own use or those of his friends can he profit from his position.

It doesn't take a genius to see that this incentive structure will tend to attract two types of people: greedy criminal types who want to extract wealth from society to enrich themselves and their friends, and utopian idealists unconcerned with wealth who instead wish to mold society according to their ideas. It will actively repel those with a long-term outlook because everything in the system is designed to defeat efforts at long-term planning and grant no tangible reward for improving a country's capital stock or GDP.

This is just one more "MediumTexy" kind of thing that people often seem not to understand when I talk about it in real life, but I think that it is bizarre and sort of darkly humorous that that these greedy sociopathic criminals lie and scheme their way into positions of power and then turn around and erect these huge and expensive monuments to themselves and the greedy sociopathic criminals who came before them.

Where are the monuments to the corporate leaders and entrepreneurs who actually created the wealth that the politicians steal and squander?  These monuments mostly never get built.  Why?  Because profitable businesses don't invest their hard-earned money in stupid and pointless activities like putting up giant statues inside temples to celebrate their prior CEOs.  The monument to a successful CEO is in the success of the company itself.

Think about how ridiculous it would be if Apple announced that it was going to buy a one acre plot of land in Cupertino and build a Parthenon-type structure with a 40 foot statue of Steve Jobs inside with pearls of wisdom spoken by Steve Jobs during his life engraved on the walls inside the temple.  Think about what Apple shareholders would think of that.  How stupid would that be?  If it's stupid to do that for Steve Jobs (who actually contributed to our society in many positive ways), how much more stupid is it to erect a similar structure to a warmongering, power-grabbing, incompetent country bumpkin barbershop storyteller like Abraham Lincoln?

This point often strikes people as puzzling, which I guess is sort of a testament to the success of our education system in indoctrinating the citizenry with certain basic ideas about the role of government in society.

[Libertarian666]

Imagine if we had a monarchy where the king is elected every 4 years, and generally has absolute power--within a few flaccid, ill-enforced limits--but does not directly own the country he rules; he is simply the temporary custodian of it. So he does not profit by increasing the capital value of the country; only by extracting capital from it for his own use or those of his friends can he profit from his position.

It doesn't take a genius to see that this incentive structure will tend to attract two types of people: greedy criminal types who want to extract wealth from society to enrich themselves and their friends, and utopian idealists unconcerned with wealth who instead wish to mold society according to their ideas. It will actively repel those with a long-term outlook because everything in the system is designed to defeat efforts at long-term planning and grant no tangible reward for improving a country's capital stock or GDP.

It's a good thing we don't have a system like that! Why, that would be terrible!
...
Never mind. 

[Reub]

I just hope that when this President's term is over that he leaves quietly.

[Mdraf]

I just hope that when this President's term is over that he leaves quietly.

Do you think the Hillary presidency will be any different?

[MediumTex]

I just hope that when this President's term is over that he leaves quietly.

Do you think the Hillary presidency will be any different?

It will be exactly the same, except less amateurish.

[Mdraf]

I just hope that when this President's term is over that he leaves quietly.

Do you think the Hillary presidency will be any different?

It will be exactly the same, except less amateurish.

Huma Abedin - Chief Of Staff
Bill Clinton - Sec of State
Lanny Davis - Homeland Security
Wesley Clark - Dep Of Defense
Villaraigosa - HHS
Treasury - ??

[Pointedstick]

Do you think the Hillary presidency will be any different?

It will be exactly the same, except less amateurish.

I wonder if a hypothetical Hillarycare would have been less of a trainwreck than Obamacare.

[Mdraf]

Do you think the Hillary presidency will be any different?

It will be exactly the same, except less amateurish.

I wonder if a hypothetical Hillarycare would have been less of a trainwreck than Obamacare.

It was single payer. The insurance industry mounted a campaign and destroyed it. So this time around Obama approached and cut deals with both the insurance companies and drug manufacturers, the two gorillas which could have wrecked it.

[Pointedstick]

It was single payer. The insurance industry mounted a campaign and destroyed it. So this time around Obama approached and cut deals with both the insurance companies and drug manufacturers, the two gorillas which could have wrecked it.

You don't think she would have figured out a way around this too? I mean, she'a a lot better of a politician than Obama is.