Whatever your personal opinion on these matters, progressives have argued for the need to place more and more power in the hands of government agencies, agencies which report to the executive branch and ultimately the President. Time and again, they told us Congress and the Courts couldn’t do it, but the President had to, except of course when that President is Donald Trump.
For decades, progressives have argued that federal agencies, imbued with massive, ever changing and ever increasing regulatory power are essential to the functioning of a modern democracy. In their view, Congress, the branch of government Constitutionally responsible for making laws, was too slow, too corrupt, too incompetent, or too whatever to be trusted to keep pace with rapidly changing times. Therefore, executive branch agencies, the entire proverbial alphabet soup of them, had no choice except to step in even when their actions clearly exceeded the original intention and legal mandate. For example, President Joe Biden tried to use the Occupational Health and Safety Administration, signed into law as part of the Occupational Health and Safety Act of 1970, to issue a first-ever nationwide vaccine mandate, even though both the agency and the law had traditionally been seen as acting only within a workplace setting, establishing safety standards for companies and workers. While no one who supported the mandate argued this hadn’t been the case for more than five decades, they insisted that the times had changed, the mandate was now essential to save lives, and OSHA was the most convenient place to discover this new power. In this case, the Supreme Court ultimately disagreed, ruling against the mandate, and stating obviously that OSHA “empowers the Secretary to set workplace safety standards, not broad public health measures.” “OSHA is tasked with ensuring occupational safety— that is, ‘safe and healthful working conditions.’ It does so by enforcing occupational safety and health standards promulgated by the Secretary. Such standards must be ‘reasonably necessary or appropriate to provide safe or healthful employment’” and “no provision of the Act addresses public health more generally, which falls outside of OSHA’s sphere of expertise.” Rather than declaring the Constitution was satisfied and will of Congress was paramount, progressives were outraged at the decision, making the argument that such niceties as the intention of a law or an agency didn’t matter. Anthony Michael Kreis, a law professor at Georgia State, described this adherence to the generally understood will of Congress, as an “indefensible formalism,” saying, “The Court is willing to let people die in the name of indefensible formalism. The president should take the Supreme Court to task for this abomination.” The New Republic’s Matt Ford was concerned that the Court had stymied the imagination of the executive branch, writing “More ominous is the basic mindset that girds the conservative justices’ thinking in both cases. In its view, the executive branch cannot use its existing powers imaginatively to address novel matters of public concern.” Kimberly Wehle, a professor of law at the University of Baltimore School of Law, writing for Politico, claimed the “biggest loser coming out of these decisions is not the president’s reputation as a problem solver but decades of constitutionally established power-sharing between the legislative and executive branches. And the winner, if that’s the right term, is the Supreme Court itself, which has executed an unprecedented power grab and masked it as an act of judicial restraint.” CNN’s Stephen Collinson accused the Court of being the “most politicized in modern memory,” the product of an “illegitimate application of power and indifference to the principles of democracy.”
A decade earlier, President Biden’s former boss, President Barack Obama also sought to extend the power of federal agencies by issuing broad new regulations on carbon dioxide and temporary inland waterways using the Clean Air Act of 1963 and the Clean Water Act of 1972 respectively. Using the Clean Air Act, which was originally conceived as an anti pollution measure and was signed into law long before anyone had ever heard of global warming or climate change in general, giving the federal government the authority to establish air quality standards and address the emissions of hazardous air pollutants, President Obama claimed he could also regulate a naturally occurring, non-polluting gas, carbon dioxide because it was a contributor to global warming. As he put in a press release in 2015, “The Clean Power Plan establishes the first-ever national standards to limit carbon pollution from power plants. We already set limits that protect public health by reducing soot and other toxic emissions, but until now, existing power plants, the largest source of carbon emissions in the United States, could release as much carbon pollution as they wanted…The Clean Power Plan significantly reduces carbon pollution from the electric power sector while advancing clean energy innovation, development, and deployment. It ensures the U.S. will stay on a path of long-term clean energy investments that will maintain the reliability of our electric grid, promote affordable and clean energy for all Americans, and continue United States leadership on climate action.” Similarly, the Waters of the United States Rule, also known as the Clean Water Rule, redefined what constituted a body of water under the original act, clarifying the “ambiguous” status of certain bodies, including tributaries which might be temporary as a result of simple rainfall, and made it easier for agencies to regulate “large areas of the landscape” according to Google. Incredibly, the Obama Administration asserted that it could extend this regulation to include ornamental backyard ponds, but had chosen not to. As they put it, “The Administration is strengthening protection of America’s waters and American communities. This includes action to modernize water resources guidelines, and update Federal guidance on where the Clean Water Act applies nationwide. The draft guidance from U.S. EPA and the U.S. Army Corps of Engineers will protect waters that many communities depend upon for drinking, swimming, and fishing, and provide clearer, more predictable guidelines for determining which water bodies are protected from pollution under the Clean Water Act.” In both of these cases, President Obama effectively rewrote the original law beyond what was intended and did little to hide this fact, infamously claiming all he needed as a “pen and a phone.” In addition to Democrat politicians, the mainstream media, for the most part, actively cheered on this abrogation of power by the executive branch variously describing the rules as “landmark,” “momentous,” “historic,” and the like despite that Congress hadn’t voted on any of it. As The Guardian reported at the time, noting it was a “departure for the EPA, which generally has focused on curbing emissions from specific smoke stacks,” “Obama had initially sought to deal with climate change through Congress. But after that effort collapsed, and with Republicans in Congress uniformly opposed to cutting carbon emissions – or even acknowledging climate change was occurring – Obama decided last year to use his executive authority to cut carbon pollution.” “It’s the most important action available to cut US emissions – and the Obama administration has seized the opportunity,” explained Andrew Steer, Chief Executive of the World Resources Institute. “These new standards send a powerful message around the world that it’s time to face the global threat of climate change.”
Last year, the scope of executive power and whether or not it should be limited by the original legislation came before the Supreme Court. A the time, the Associated Press, summarized the Court’s decision to curtail this power once and for all, noting “With a closely divided Congress, presidential administrations have increasingly turned to federal regulation to implement policy changes. Federal rules impact virtually every aspect of everyday life, from the food we eat and the cars we drive to the air we breathe and homes we live in. President Joe Biden’s administration, for example, has issued a host of new regulations on the environment and other priorities, including restrictions on emissions from power plants and vehicle tailpipes, and rules on student loan forgiveness, overtime pay and affordable housing. Those actions and others could be opened up to legal challenges if judges are allowed to discount or disregard the expertise of the executive-branch agencies that put them into place.” At issue was a 1984 decision, colloquially known as the Chevron decision, which had granted broad authority and deference to the agencies themselves. “The 40-year-old decision has been the basis for upholding thousands of regulations by dozens of federal agencies, but has long been a target of conservatives and business groups who argue that it grants too much power to the executive branch, or what some critics call the administrative state,” wrote Mathew Daley. “The Biden administration has defended the law, warning that overturning so-called Chevron deference would be destabilizing and could bring a ‘convulsive shock’ to the nation’s legal system.” Daniel Esty, Hillhouse Professor of Environmental Law and Policy at Yale University, predicted the world would be turned into chaos itself if these agencies were stripped of the power to make law without Congress. “By overturning the Chevron principle of reasonable (and limited!) deference to federal agencies in rulemaking, the Supreme Court has knocked out a core pillar of American administrative law and created a real risk of regulatory chaos across a range of policy domains, including environmental protection, health care, labor standards, land use, and corporate reporting. In eliminating a long-established policymaking framework and providing almost no guidance for courts to apply in determining whether agencies have acted reasonably in implementing the legislation adopted by the Congress and signed into law by the president, the court may well have unleashed an unprecedented level of uncertainty into the regulatory arena. The chaos that will result as lower courts pass judgment individually on regulations in areas that are often quite technical and in which the judges involved often lack any expertise will translate into risk and cost for all regulated parties and impose, in effect, an uncertainty tax on businesses large and small, which will spillover onto every American.”
Whatever your personal opinion on these matters, previous administration actions, and court decisions, Democrats and progressives have consistently argued for the need to place more and more power in the hands of government agencies, agencies which report to the executive branch and ultimately the President. Time and again, they told us Congress and the Courts couldn’t do it, but the President had to, except of course when that President is Donald Trump. Ironically, he has spent the much of the first three weeks of his new term using the very power progressives championed to reduce the size and scope of these agencies rather than expand it. By anything resembling a logical or coherent standard, he is entitled to do so according to their own actions and writings on the same topic. If any agency can be grown by the will of the executive alone, surely it can be shrunk in the same manner. If Congress moves too slowly to expand the reach of regulations, it moves too slow to reduce them. This is the same argument they have used, albeit applied for ends they detest. Putting it another way, what could be more “imaginative” than using these powers to curtail the government and reduce spending, which are certainly both “novel matters of public concern” to use Mr. Ford’s phrasing? Further, in light of the Supreme Court’s decision on Chevron, one can also argue the President now has an obligation to review the actions of various agencies that have spent the past four decades potentially illegally making law, and ensure they are returned to the boundaries of their original legislation. As such, he has set up the Department of Government Efficiency, DOGE, and identified the US Agency for International Development, USAID, as a target to be slashed, believing the agency funds left wing causes in what amounts to a corrupt money laundering scheme and its proper function of providing aid to the impoverished around the world can better be addressed by the State Department. Perhaps needless to say, Democrats have argued this is illegal and unconstitutional, claiming Congress created the agency and allocated the funds, therefore it must remain operating in perpetuity. “USAID was established by an act of Congress, and it can only be disbanded by an act of Congress,” explained Virginia Representative Don Beyer. “Elon Musk and his band of unelected acolytes at [the Department of Government Efficiency] have locked USAID employees from their offices, improperly accessed highly classified information, purged the agency of its nonpartisan leadership and thrown the agency into chaos through a concerted campaign of harassment and intimidation of its employees,” he continued. “If you want to change an agency, introduce a bill and pass a law. You cannot wave away an agency that you don’t like or that you disagree with by executive order or by literally storming into the building and taking over the servers,” Hawaii Senator Brian Schatz claimed during a recent rally. “Congress created this agency through the Foreign Assistance Act of 1961 and if you want to change it, you have to change that law,” explained Democrat Representative Gerry Connolly. “It is a matter of statute.” Setting aside that President’s of both parties have variously altered USAID’s mission and purpose since it was founded by John F. Kennedy as a bulwark against communist aggression, with President Biden most recently using it to fund abortions worldwide and interfere in the domestic politics of other countries, what Hungarian foreign minister Peter Szijjarto recently described as using USAID to “destabilize the situation in other countries” and to fund “programs which were totally alien and strange compared to the culture and the heritage of other countries,” the progressive argument would be a lot more persuasive if they haven’t been arguing the exact opposite as long as I’ve been alive. In fact, none other than President Obama himself set up a separate government agency, similar to DOGE, to go through the federal budget line by line. “From the day I took office, I’ve said we’re going to comb the federal budget, line by line, to eliminate as much wasteful spending as possible. That’s what the Campaign to Cut Waste is all about. We can’t wait for Congress to act – we can’t wait for them to get our fiscal house in order and make the investments necessary to keep America great. That’s why today, I’m signing an Executive Order that will build on our efforts to cut waste and promote more efficient spending across the government – we’re cutting what we don’t need so that we can invest in what we do need,” he explained in 2011 to precisely none of these concerns. If you live by the executive, you die by the executive to update the old adage, and what grows government can just as easily kill it, a lesson they are all learning now the hard way, imaginative indeed.
Confessions of a Conservative Atheist 