The Imperial Presidency

Implications for Economic Growth & Job Creation Ignoring Advise & Consent Creating “Laws” Outside of the Congressional Process Ignoring the Plain Letter of the Law & Failing to Faithfully Execute the Law Circumventing the Normal Regulatory Process Government By Waiver Creating New Programs Not Authorized by Congress Creating New Super Agencies Conclusion

Over the past several months opinion pieces appearing in such places as The Washington Post, National Review, and The Wall Street Journal have talked about the emergence of an “Imperial Presidency.” While some may wish to simply chalk this up to partisan criticism of the incumbent President, even The New York Times in a recent A1 article examined “an increasingly deliberate pattern by the administration to circumvent lawmakers…”

Less noticed, but perhaps even more important – especially to the over 20 million Americans currently out of work or underemployed – is the link between a breakdown in the rule of law and reduced economic growth and individual prosperity.

Property rights and rule of law are essential for the proper and efficient functioning of society and the economy. Unambiguous laws and procedures provide a framework by which free people agree on the scope and reach of their government's actions, whereas unclear laws or arbitrary enforcement undermine individual liberty and the notion of popular sovereignty. Clear, transparent, predictable rules that are applied without preference or prejudice allow individuals to invest, build businesses, and create jobs. When there is a breakdown in the rule of law, increased uncertainty leads to reduced investment and less growth.

Numerous economic studies have documented the relationship between a strong rule of law and economic growth. In 2008, The Economist published the following chart alongside a story entitled “Order in the Jungle.” The chart aptly illustrates the strong relationship between adherence to the rule of law and economic growth. As economist Hernando de Soto – a leader in the field of the impact of property rights and rule of law on economic growth succinctly stated: “So the origin of the rule of law— which will allow a modern nation to grow and so bring peace, stability, and prosperity to the world—is property rights. And the rule of law will actually generate prosperity.”

The EconomistIn the United States, the ultimate law is the Constitution, which specifically provides how laws are to be enacted and requires the President to take care that the laws that are enacted are faithfully executed. The laws of the United States establish the process whereby individuals can enforce their property rights and private contracts and provide the framework by which executive agencies are to conduct rulemakings and the other regulatory activities.

When “laws” are created without going through Congress; when laws are selectively executed; when an administration intervenes into the normal judicial process and diminishes an individual's property rights; and when the normal regulatory process is circumvented, the rule of law is eroded.

All of this increases uncertainty. Individuals, families, and businesses now not only face uncertainty with respect to the policy decisions made by government, but they face uncertainty as to how those decisions will even be made, Numerous economic studies and surveys indicate that uncertainty itself (which is certainly increased with the breakdown in the rule of law) also hinders economic growth.

While Administrations of both political parties have been known to test the bounds of the limits of their power, the breadth of the breakdown in the rule of law in recent years has reached new levels. In the Heritage Foundation and Wall Street Journal's annual Index of Economic Freedom, the United States scores lower today on the rule of law than it did in 2008. As the 2012 report notes, “Corruption is a growing concern as the cronyism and economic rent-seeking associated with the growth of government have undermined institutional integrity.” Individuals and businesses are increasingly forced to rely on the courts to enforce their most basic substantive and procedural rights.

Over the past year-and-half, the Committees of the House of Representatives have investigated and documented numerous break-downs in the rule of law. This report compiles over 40 separate examples that span the breadth of government, including instances where the Administration has attempted to:

Tell a private business in what state it can locate; Tell a religious institution which employees are “religious” under certain federal laws; Regulate the internet; Rewrite Federal education law; Created new “Super” regulatory agencies; and Significantly restrict America's energy resources.

One of the checks and balances imposed by the Founding Fathers was the requirement that senior Executive Branch officials be appointed only with the consent of the Senate. In the modern regulatory state the approval of officials by the Senate is one key way to ensure that regulators do not abuse their authority. In order to address situations where the Senate was in recess, thus preventing them from consenting, the Founders provided for a limited interim appointment process absent Senate confirmation. “Recess” Appointments

When the Senate did not approve four of his nominees to two regulatory agencies – the head of the new Consumer Financial Protection Bureau (CFPB) and three members of the National Labor Relations Board (NLRB) – President Obama took the unprecedented step of declaring that the Senate was in recess – even though it wasn't – and invoking his interim appointments power.

Seating the head of the CFPB and a quorum for the NLRB allowed both agencies to begin promulgating regulations that would have otherwise have been on hold until the President and the Senate came to agreement on filling the vacancies.

The President's unconstitutional acts are now the subject of pending litigation by those negatively impacted by the new rules and determinations published by these agencies. Creating “Laws” Outside of the Congressional Process

For decades, Congress under both parties authorized and permitted federal agencies to exercise immense control over the economy through the rulemaking process. For the regulated, there is virtually no difference between a legal requirement imposed by statute and a legal requirement imposed by regulation. But both parties have always agreed that agency action is limited to the authority granted to the agency by an Act of Congress, duly signed by the President. Under this simple limitation, at least some limits are imposed on the unelected officials who run the agencies. Under the Obama Administration, agencies have gone further than ever before in overturning decades of regulatory precedent, acting without statutory authorization, and otherwise abusing the rulemaking process to create de facto laws without going through Congress. Changing the Unionization Process

Majority Threshold: In 2009, the President's appointees to the National Mediation Board (NMB) changed union election rules that had been in place for 75 years under the Railway Labor Act so that union certification required only a majority of the employees who vote in the election (as opposed to the majority of all employees). This change made it easier to form a union. But, the NMB conveniently left in place the arduous process under the Railway Labor Act to decertify a union. Congress ultimately responded with provisions included in the FAA Modernization and Reform Act (P.L. 112-95) to address the President's changes by requiring: (1) Any new NMB rulemakings be subject to public hearings; (2) Elections to either unionize or vote out a union are conducted on an equal footing; and (3) GAO to conduct regular and substantive oversight of the NMB, which the Board has previously lacked.

Ambush Elections: In June 2011, the National Labor Relations Board (NLRB) proposed sweeping changes to the rules governing union elections. Under the proposal, union elections could take place in as little as 10 days, restricting an employer's right to communicate with his or her employees and undermining workers' ability to make an informed decision. This past May a federal judge overturned the NLRB regulation citing that the agency lacked the legal quorum necessary when it approved the measure.

Creating Micro-Unions: In August of 2011, the NLRB discarded decades of precedent in order to adopt a biased standard for determining which group or “unit” of employees can vote in a union election. Union leaders have long tried to organize smaller units of employees as an incremental step toward organizing an entire business. In an effort to preserve unity in the workplace and keep labor costs low, employers often seek to expand the unit to include a greater number of employees. Under the board's new standard, it will be virtually impossible for employers to challenge the group of employees handpicked by the union. The new standard empowers union leaders to manipulate workplaces for their own gain, with dramatic consequences in the real world. Affected employers will be constantly engaged in costly labor disputes. For example, a grocer could be negotiating one day with his cashiers and the next with those who stock the shelves.

In November of 2011, in response to these harmful Obama Administration regulations and edicts, the House passed the Workforce Democracy and Fairness Act. Telling Businesses Where They Are Allowed to Locate

Choosing where to set up shop and hire workers is a fundamental business decision. Bureaucrats at the National Labor Relations Board (NLRB) believe they should have a say in that decision. In April of 2011, the NLRB filed a complaint against The Boeing Company for building an assembly line in South Carolina despite the fact the NLRB could not demonstrate that Boeing was breaking any law. The NLRB tried to force Boeing to move the work to Washington State from the non-union facility in South Carolina. Ultimately the NLRB backed down and dropped their case against Boeing, only after their coercive efforts caused Boeing to modify its agreement with a Washington-based union.

In September of 2011, in response to the NLRB, the House passed the Protecting Jobs from Government Interference Act. continued....

This is finally starting to get interesting. As more media outlets begin summarizing the president’s disdain for the rule of law and the ways he has circumvented both the Constitution and rule of law, it begins to lay the foundation for more appropriate action.

The more people see and read these articles, the more they become aware of zero’s egreggious flaunting of our Constitution and our laws and the angrier people will become (good for the goose, good for the gander thinking).

This, ultimately, can lead to a tiny handful of potential outcomes - 1) the Congress will be pressured by the voters to take action against Obama (which could include impeachment), 2) the taxpayers may decide to take action on their own and revolt, 3) the Congress may decide to censure the president(possibly what our gutless Congresscritters would do) and 4) . . . . . . . . . . ??

So, if this trend continues and more media outlets discuss these issues, we may finally see something done to stop this administration in its tracks. Hopefully, we won’t regret getting what we are asking for.

>>>Pray for him.<<<

I was thinking the same thing. This report is well-written description of what is going on, but a report in and of itself is not sufficient to the moment.

Describing the president operating with extralegal actions should be grounds for impeachment. Describing a political party and its attendent organizations operating with extralegal actions should be groups for treason or civil war. A good allegory here would be a partner in an abusive relationship who describes a constant barrage of threats, emotional coercion, and the occasional slap across the face, yet what the victim does is write a teary letter to the relatives outlining what the brute does.

The allegory breaks down, of course, with enforcement. A victim of domestic violence can call the police or engage the courts. We have no higher authority but ourselves. And we’re apparently too scared, or cowed, to respond at all.

A civil war is brutal, and after having one the first time, nobody I know seriously wants one when we have nuclear weapons and drones. I like the Ayn Rand option, personally - the ideological general strike. They can take what I have but they can’t force me to be productive. (This is why slaves were universally seen as shiftless wherever there was slavery.) I’m hunkering down. I can’t fight a bureaucrat 4,000 miles away, but I can reduce my productivity to the point where there is nothing for that bureaucrat to take.

I wish I could be one of those guys with the arsenal willing to shoot my way out of the situation, but I’m not. My weapon of choice is sullen defiance. Hopefully it is infectious.

Having written all that, it would be nice if Mr. Cantor produced some sort of manifesto himself to confront the problem. He’s told us what the problem is and where it comes from. And now..... ? What’s needed is Sam Adams and Thomas Paine - a focus and a direction, not a reaction and a finely written report.

God help us.

Exactly. I noticed back in August 2011 how Cantor voted 'YES' to raising the debt ceiling by $2.5 trillion without getting any immediate spending cuts. We now see what all that got us. Here we sit 16 months later, with the Obama Administration lining up for yet another increase in the debt ceiling.

At this point, I don't give a damn what they give Obama as long as they do not raise the debt ceiling. It is the only card the GOP really has, and it is the only thing that Obama really wants, despite all his class envy rhetoric. Give him whatever tax increases he wants, but DO NOT RAISE THE DEBT CEILING.

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