When Rule Trumps Law

The endlessly quotable John Adams famously said of our young nation that it is, “a nation of laws, not of men”. This was a clear distinction from the European traditions of monarchy that had dominated Western culture for centuries. In that phrase was the inherent equality of a government that was elected by the people that passed laws for the people, which at the time included the elected officials. But we are seeing a growing disconnect with the Congress and the people they supposedly represent. It was only last year that the Congress passed a law making it illegal for Congressmen to take part in insider trading. So nine years after Martha Stewart was famously prosecuted, by the federal government, for insider trading Congress finally saw fit to ensure that it was also illegal for them to take the same action. And while some may see that as a reform step in the right direction, two items must be noted. The STOCK Act was only passed after a scathing 60 Minutes report detailed the obviously unpopular actions taken by members of Congress; and, after the initial public furor subsided, the Congress unanimously voted to repeal the acts most transparent provisions in early April of this year. That is one reason why you will not hear about this law in discussions of the Affordable Care Act’s exemption of Congress and aides, because both parties unanimously voted to repeal these provisions.


The Affordable Care Act figures into this over-arching argument but shall be discussed in more detail later on. For now I would like to examine a more troubling direction we have taken away from John Adams’ high ideal at our founding. It rests in the role of the Chief Executive. The Congress is specifically designated as the legislative body of our government; it is when these constitutionally mandated roles are ignored that situations are removed further from the people’s control. We have seen within this administration a worrying distaste for the legislative prerogative of congress and even the judicial authority of the courts. Of course, it is not the first time these limits have been tested, and it will not be the last, yet these examples have set disquieting precedents in the rise of power of the state and the diminishment of the peoples’ power. We can start by looking back at the response to the BP Oil Spill early in Obama’s first term. We saw an early look at his vision for executive authority when he instituted a ban on off shore drilling. A federal appeals court eventually stayed the order but was ignored for months while the administration attempted to come up with a reason that would satisfy the court. After months, they buckled and lifted the ban, but even into February of 2011 no new permits were given, the administration was able to extend the ban for nearly half a year utilizing the labyrinthine bureaucratic morass to foil valid attempts to restart business. Even now the number of permits given is woefully low and under historic averages. This is now the same government in charge of your health care.


While action by the Chief executive in opposition of the courts is not a new phenomenon the rise of the executive agency’s power is a new cause for alarm. We can look to the EPA and the FDA as two excellent examples of federal power running roughshod over the legislative right exclusive to the Congress and athwart the basic oversight of the American voter. After the failure of the Cap and Trade legislation to pass in a House and Senate with overwhelming Democrat majorities, the Obama administration seemed intent on introducing the legislation through administrative regulation. The power of the administrative agency is on the rise and can be seen in actions taken by the EPA to introduce aspects of this failed legislation. The EPA did not waste much time in passing regulations against coal companies causing a sharp spike in rates. It also held that carbon dioxide (CO2) endangered public health and claimed a right, which was upheld against challenge by a group of states, to regulate it. CO2, of course, is also expelled every time you exhale. But with the rise of the political elites handing down rulings I can at least agree that some carbon dioxide is more dangerous than others. Another interesting event in the lengthening list of agency actions is the recent look of the FDA in eliminating trans fats from our diets. In the same way as the EPA has done with carbon dioxide, it is first labeled an endangerment to public health and then the regulations can be handed down with absolute justification. It is a perfect picture of a state that has no belief in limited powers or authority and seeks to extend control into the minutia of everyday life with reckless abandon. One needn’t look too far to see the disastrous effects of blind bureaucratic regulation. The EPA is now walking back ethanol standards for 2014 because of the harsh effects it is having on the economy. Perhaps there should be a system that has duly elected officials debate these proposals in full view of the public finally passing, with a majority, a law that can be signed by a head of state in a public manner. If only we had such a system.


There are a few more examples of executive authority ignoring appropriately passed legislation. There is the election year decision of halting deportations of certain illegal immigrants. There is also the refusal to prosecute certain marijuana offenders regardless of existing law. And most controversially, refusing to defend DOMA. This flies in the face of the first part of his oath of office, which is to faithfully execute the Office of President of the United States. His job is not to select which laws to accept or ignore. This is the same idea behind the current “fix” for the Affordable Care Act. The proposal is essentially ignoring the law for the upcoming year which just happens to hold an election. After the election is over, then we can go back to living under the law as it was passed. This is not representative government under the law. Combine this with the increasing federal push against state actions, including the challenge against Arizona’s immigration law and Voter I.D. requirements in a number of states and you have a federal government haphazardly wielding the law to suit the interests of one man. This not only runs afoul of our own Constitution, but is antithetical to our history and culture.


There is no political expediency clause found in our Constitution and there is no pre-approved workaround for bypassing compromise. This is not the first President to meet opposition resistance to proposed legislation. It does seem to be the first to not care less about working with said Congress. We are finding ourselves in an age where the ends justify the means and those means are becoming disconcerting. This rabid expansion of power is not merely affecting American citizens but is having a global reach much to our detriment. Just ask German Chancellor, Angela Merkel, who has a bone to pick with the NSA for tracking her phone. This unilateral governing is undermining the authority of the Congress, the Judiciary, the People, and our international standing. It stands to benefit only one.


When asked, “Have we got a republic or a monarchy?” Benjamin Franklin responded, “A republic, if you can keep it”. We see the erosion of those republican traditions as the political elite continually gain authority to act outside or in spite of the law. This authority is gained by the acquiescence of the people. We must demand a change and act accordingly. The people may be down in our political discourse, but by no means can be considered out. If hope is dimming on the horizon, then all that is left is action. Take action then and reclaim what is rightfully yours. A nation of laws, unyielding and equally applicable. A representative government, acting in the best interests of constituents instead of political parties. The right to be “We the People” and not subjects to the whims of the Crown. America is no place to allow a wielder of arbitrary power. With hope and action, it never shall be.