Here’s the way it goes. Congress passes a law and then Delegates discretion and authority to the agencies. The agencies do what they are told by the Chief Executive.
What’s so surprising that the president issues executive orders on air rules and regs?
What’s surprising that the Congress is reluctant to stop his aggressive behavior?
What’s surprising that the courts allow agency discretion under the precedents that allow delegation and agency discretion?
In a common sense reading of the non delegation doctrine that predates the constitution of the United States and is critical to the Montesquieu concept of separation of powers, the Congress of the United States is the legislative body and cannot cede its legislative authority to some other branch. That’s covered in Art 1 Section 1 of the US Constitution.
So what happens, the courts decide to play fast and loose with the non delegation doctrine to make things easier for the executive to act, so in J.W. Hampton, Jr., & Co. v. United States (1928) the inventive and creative US Supreme Court stated that the Congress can delegate legislative authority so long as Congress provides an “intelligible principle” (is that clever or what?) 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 (another “flexible and creative concept, don’t you like the way judges have with words?).’
the Court went on to say, and the Supreme Court has allowed this junk law to stand since–So long as Congress ‘shall lay down by legislative act an intelligible principle (a concept that is pretty loose, don’t you think?) 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.
So would you say we’re screwed and we now have a dictatorship of the executive branch, which except for the president, is unelected.
Oh we have a problem. Danger Will, Danger, as Robbie would say.
On Discretion of Agencies the problem is that the rule that agencies have discretion on interpretation of ambiguous statutory language has been expanded to allow any agency interpretation of any statutory language in the administration of the law. As a result the courts will not interfere with overreach and rarely consider a case for arbitrary or capricious action under the Administrative Procedure Act.
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), was a case in which the United States Supreme Court set forth the legal test for determining whether to grant deference to a government agency’s interpretation of a statute which it administers. Chevron is the Court’s clearest articulation of the doctrine of “administrative deference,” to the point that the Court itself has used the phrase “Chevron deference” in more recent cases.
We have a virtual dictatorship because the alliance between the Democrat party and media has intimidated any potential opposition
and changed the narrative to cover the malfeasance and perfidy. The Imperial President is an autocrat, by informal surrender of the other branches.
Sheeple are obedient and afraid not to be. Politicians and Judges are ambitious and social creatures, rarely courageous.
http://www.americanthinker.com/blog/2014/02/obama_to_issue_executive_order_on_truck_fuel_standards.html
You have remarked very interesting details! P.s. Nice web site =)
Liberty: 1. freedom from arbitrary or despotic government or control.
CAFE standards are tyranny by definition, being absolutely arbitrary. BHO says 54 mpg by 2025. Why 54? Why not 53 or 55? As no reason can be given for why 54, it is arbitrary.
‘In his remarks, Obama plans to call on Congress to take steps to expand fuel choices for American drivers – efforts he will say help “bolster American energy security, cut carbon pollution, save money and support U.S. manufacturing innovation,” the White House said.’
My, what technical expertise Congress must have that they can create fuels that will “bolster American energy security, cut carbon pollution, save money and support U.S. manufacturing innovation.”
If Congress doesn’t, he’ll bypass them, and do it himself! “If you like your gas station, you can keep it.”
BWTM . . . .
Congress creates executive agencies, then, delegates power to the agencies that Congress doesn’t have.
Most of the alphabet agencies are engaged in activities that are not authorized by the Constitution. For example, Congress created OSHA. Occupational safety is none of the federal government’s business.
I guess there is no harm if, in the interest of promoting the general welfare, the feds want to study occupational safety, and make non-binding recommendations. But their creating standards, creating fines for non-compliance, and intruding on places of business, is not in the scope of the Constitution.
2.8 million employees in 2011. Perhaps 10X that in contractors. Mostly doing things they have no business doing.
Reblogged this on Lake Erie Conservative and commented:
.. EOs have no legal authority outside the Consitution and the laws passed by Congress …
The decay of separation of powers has been a problem for a long time. It comes from politicians being allowed to switch back and forth between the branches. Our president is a lifelong legislator. It’s no surprise he thinks like a legislator.
For some reason the idea that the president is the highest office in the land has been popular for a long time. I guess some people just want a king. My interpretation always held that Presidents, Congressmen, and Supreme Court Justices were equal, but too many congressman dream of being president someday. They think of the President as the ultimate power and the legislation they sponsor reflects that.
What’s possibly a bigger threat, though, is the judicial branch. They’ve practically become a shadow government. Who gets to decide if a law stands or falls? Who gets to decide who gets punished and who gets away with injustice? The judicial branch wields the greatest power in the USA and yet they are unelected and most citizens can’t even name one Supreme Court justice. It’s like they deliberately avoid attention. You only hear about them if the other two branches are fighting over an appointment.
Maybe a big Supreme Court case makes the news every few years, but in reality, any judgment made becomes law regardless of the level at which it is made. Through case law the judicial system generates more new law than the legislative branch. If a questionable judgment doesn’t make it to the Supreme Court the country doesn’t even know about it until they have to answer to it in court. I’ve heard a lot of complaint about the legislative branch trying to prevent the people from learning about a law prior to its passage, but almost no attention is given to the legislative branch’s practices where “landmark decisions” are often the opinion of one activist judge with no accountability.