Using Regulation Against The Will Of The People

Written into the Declaration of Independence is a simple imperative, “Governments are instituted among men, deriving their just powers from the consent of the governed.” Our nation was built on this concept, but the Obama administration is using its power to write regulation to circumvent the will of the people and advance its own agenda.

Three recent examples of this over reach are shocking and all Americans should demand an end to the practice and a reversal of what has already been done. Citizens need to think, whether they agree with the reasons for the circumvention or not, about what is at stake. Using regulation to specifically subjugate the will of the people to the agenda of any president is nothing less than tyranny.

The New York Times and Fox News, an unlikely combination, recently reported that the Obama Administration is taking advantage of a rule in the final version of the Patient Protection and Affordable Care Act of 2010 (“Obamacare”) that authorizes Medicare coverage of yearly physical examinations. The new rule says Medicare will cover voluntary advance care planning to discuss end-of-life treatment as part of an annual visit. The mandate for end-of-life planning, commonly referred to as death panels, was specifically legislated out of Obamacare because of the uproar by the majority of Americans. Most recent polls show 60% or more of the electorate wants Obamacare repealed, but this particular mandate was rejected by the people before the law was passed.

Using this embedded rule, one of the hundreds of Obamacare surprises that will be revealed over time, the Obama administration is able to achieve its policy goal through the regulation-writing process. In this case, doctors will be encouraged to provide information on how to prepare an advance directive, stating how aggressively patients wish to be treated if they are so sick that they cannot make health care decisions for themselves. Regardless of the merits, this is not what the people want. If this seemingly harmless step is allowed to be taken, what else can be written into regulations that will further circumvent the will of the people?

Early this month, the Federal Communications Commission (“FCC”) voted to regulate the Internet for the first time. This scheme, known as Net Neutrality that forbids Internet service providers from impeding access to legal web content, may seem minor but it raises larger free speech issues and the threat of more intrusive regulation. Even Congress has been sensitive to the First Amendment implications of any legislation regulating the Internet and has been careful in taking any action to date.

The people want debate by their elected representatives on this issue, not the imposition of new regulation at the whim of a president who believes he knows better than the citizenry. This move, along party lines by the appointed commissioners of the FCC and publically welcomed by Mr. Obama, is nothing more than a power grab in defiance of the will of the people.

Perhaps the most dangerous use of regulatory power hanging over the American people is the judicially extended powers of the Environmental Protection Agency (“EPA”) to regulate specific greenhouse gases, including carbon dioxide, as pollutants under the forty year old Clean Air Act. The Clean Air Act was originally written to regulate air pollutants, not something that is ever present in the air – and certainly not something that is part of life itself!

The Supreme Court made the ruling in April of 2007 in the case The State of Massachusetts v. the Environmental Protection Agency but little has been done since. However, with the support of the Obama administration, the EPA is now ready to regulate carbon dioxide. The Clean Air Act, as it is now written, requires that any source that emits more than 250 tons of carbon dioxide per year be required to capture those emissions. That threshold is so low that not only would it impose higher costs on power plants and refineries, but also farms, rural schools and hospitals.

If the EPA is allowed to follow through on using the Clean Air Act to regulate carbon dioxide, Washington D.C. bureaucrats will have more control over the lives of citizens and their businesses than the citizens themselves.

These three examples clearly prove how the Obama administration is poised to use the regulation-writing process to advance its own agenda regardless of what the American people want. The administration is also acting in open defiance to our form of representative government. Regardless of where anyone stands on these three particular issues, it is the dictatorial action implied by this process that should be rejected. The 112^th Congress can use its power to review any regulation to strike down this power grab. The American people need to demand that this new Congress act swiftly to send the president notice that our liberty will not be taken from us by the stroke of a pen.

Robert Allen Bonelli is the author of “Liberty Rising,” an accomplished business executive, public speaker and involved citizen.