By Allen Buckley
While President Obama’s recent displeasure with the U.S. Supreme Court’s power to determine the constitutionality of the health care law is well documented, less documented are his agencies’ improper regulatory actions. Substantively, agencies have been making law. Together, these actions show a disdain for the legislative and judicial branches by the executive branch, thus threatening the balance (and separation) of powers provided by the U.S. Constitution. In short, the Obama administration has shown a constant objective of making the executive branch supreme during Mr. Obama’s tenure.
With gridlock in Congress, the Obama administration has taken regulatory powers to a level never before experienced and is, in substance, creating laws. It is doing so by having its agencies make rules for areas of life not covered by laws and, in some cases, by applying the English language to existing laws in a manner that is inconsistent with the English language. (The U.S. Supreme Court has ruled on several occasions that statutes must be read with all words and phrases in proper context while applying the ordinary English language to words.) Traditionally, agencies have issued “legislative” regulations that essentially make law only when Congress has specifically granted the power to do so.
Procedurally, proposed and later final regulations are being issued following a study conducted by an agency that ultimately proposes what the administration wants to do. In the study process, the agency issues public notice of wrongdoing that it intends to stop. The story of the “common good” nature of the project is often told to the media to relay to the public.
People are allowed to comment in the regulatory process. However, the agency acts as judge and jury with respect to the comments received, and regularly disregards or explains away to its own liking the comments with respect to which it disagrees. After a period of time, the regulations are issued, and people and businesses must comply with the regulations, fight them or not comply and hope they are not audited. Often, an agency avoids the regulatory process altogether and issues informal guidance that, although often lacking any legal authority, essentially becomes part of the law.
Case law generally recognizes that regulations that have continued without substantial change over a long period of time are deemed to have received congressional approval and have the effect of law. Legal action must be taken on a timely basis to stop the illegal agencies’ actions.
Challenges are rare due to fear of retribution, costs to fight and/or fear of negative publicity. According to a 2009 Michigan State law review article by Kristen E. Hickman, ” . . . while pronouncements that agencies label as nonlegislative by definition cannot be legally binding, they nevertheless may enjoy what is known as practical legal binding effect, because prudent regulated parties seeking to avoid confrontation with the government tend to comply with whatever guidance the agency cares to offer.”
A recent example is an absolute requirement that retirement plan administrators receive “breakdowns” of charges from service providers, including charges received from subcontractors. The law merely requires that administrators act prudently when purchasing services. In the tax area, a law that has required tax return preparers to include identification numbers on prepared returns has been coupled with a law permitting the IRS to regulate people who represent taxpayers in audits to grant the IRS a licensing power over the tax return preparation industry, including the charging of annual fees.
The Obama regulatory system is unconstitutional. Substantively, it subjects citizens to two sets of laws–those established by elected members of Congress and signed by the president and those established by agencies (indirectly under control of the president). People are supposed to be free to do as they wish unless a law (i.e. a real law that was enacted by Congress and signed into law by the president) provides otherwise. The balance of powers is destroyed.
The president has the veto power, which provides an ability to negotiate. Opposite party legislators can acquire the power to negotiate by capturing a majority of the House or Senate.
(Allen Buckley of The Law Office of Allen Buckley LLC practices in several areas of law. He was a 2008 candidate for the United States Senate.)
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