If You Were Boss, Would the Greenhouse Gas Rules Be Approved?



  • Today (24 Feb 2014) the US Supreme Court will hear arguments for and against the Obama EPA rules that require every new business building to use the best available technology to limit or scrub greenhouse gases. Those rules vastly expanded the EPA jurisdiction without US Congressional action of any kind to make new laws. They demonstrate, among other things, how US administrative agencies make new law all the time, without any input from elected members of Congress, the Executive officials, or the judiciary. Now the judiciary is being asked to decide whether such an expansion of rule making power is Constitutional. If you were in charge, how would you rule? (My blog article on the subject today gives details and links for further reading, if you want that.) Attachments: [img]https://forum.vivaldi.net/uploads/attachments/3031/GreenhouseGas.jpg[/img],[img]https://forum.vivaldi.net/uploads/attachments/3031/GreenhouseGasRules_2014-02-24.jpeg[/img]



  • Being a Canadian living in the US, I've always been a bit mystified by US politics. My cursory understanding is that the legislative branch of the Congress makes the laws and not the executive branch (i.e. the White House). If you're asking whether I would approve such laws made outside the Congress, the answer is no, regardless of their importance. I'm suspicious that the balance of power is slowly being changed by this new administration.



  • JamesD, the legal phenomenon to which you're referring, i.e. legislation of new laws by an administrative agency instead of the elected Congress, has been ongoing since the 1950's in the US with this simple linguistic gimmick: Instead of calling the new rules made by the administrative agencies "laws" they are called "rules" or "administrative rules" or "regulations." The logic behind this gimmick is that the Executive branch that forms agencies to carry out the laws created in Congress must have some latitude to make up rules for carrying out the laws. So, the Internal Revenue Service, since 1913, has been making rules about how much tax to pay, how to report income, etc.

    I am disgusted with my US government and yet I am at a loss as to how to change the erosion of the three branches of US government (Congress to legislate laws, Executive to carry out or implement those laws, and Judiciary to interpret those laws in the context of other laws) into four (the fourth being the Administrative agencies that create, execute, and adjudicate their own rules under the federal statute enacted by Congress called the Administrative Procedures Act).

    There is much more to say on the topic, but out of fear that it might become a lecture on Constitutional Law and Administrative Law, I will desist.

    hamilton.jerry



  • Albeit, thanks for clarifying it for me.



  • @hamilton.jerry:

    There is much more to say on the topic, but out of fear that it might become a lecture on Constitutional Law and Administrative Law, I will desist.

    But I guess thats the point you have to clarify first in this discussion.

    How far can administrative law be interpreted without it actually means a breach of the law? The only legislative power must be the legislature, so the elected representatives of the people respectively the government, with clear laws and little discretionary leeway. To delegate this authority to any administrative authorities or agencies I think is unconstitutional. The risk of arbitrariness or influencing these offices by any interest groups (lobbies) without control of the legislature in my opinion is not calculable.
    In addition, the legal uncertainty and interpretation is opened the floodgates when each authority sets up their own rules.



  • @hamilton.jerry:


    There is much more to say on the topic, but out of fear that it might become a lecture on Constitutional Law and Administrative Law, I will desist.

    hamilton.jerry

    The one thing I find most disturbing about the lawmaking process in the US is that it is not only possible but also common to lump together a lot of unrelated things in a "bill" where politicians deal with one another to insert what I would call "political bribes". I am not aware of other countries which make laws this way, but that might of course be because most other countries are not followed so closely by international news media and analysts.

    In my opinion, well-written laws should be structured by topic and sub-topic, and changes should be made by replacement of sections or paragraphs rather than by adding extra text to override the previous parts.



  • While the American Constitution has been admired for brevity and clarity, I wouldn't say that applies to the laws I've seen. To me they are a toss-up with EU directives, they are readable, even given the tortured language, but you always have the nagging feeling there is something you have missed.

    Different countries have different umm… implementations, but it seems that the general approach most places is that you have laws, rules and regulations, court cases and precedents. This makes the agencies powerful, since they implement the laws in practice, but that power is also constrained by all three US branches. The regulations have to be based on laws made by the legislative, I assume that the executive can stop any unwanted changes in the regulations, and the courts can find the regulations unlawful or limit their applicability. In addition the legislature also controls the budget, the life blood of any agency, and the executive can chop off agency heads with exposed necks.

    All this should put the baronies under democratic control, though I don't know the particulars in the US well. I would be more concerned about e.g. presidential decrees to circumvent legislative control.



  • @jaxroam:

    I would be more concerned about e.g. presidential decrees to circumvent legislative control.

    And therein lies the crux of this thread started by Jerry. ;)



  • I love the way your mind works, Ice007, but the sad truth is that the US Congress has almost always been composed of wusses who refuse to take responsibility and a US Supreme Court that dumbly sits on its hands to watch the parade.



  • In my opinion, well-written laws should be structured by topic and sub-topic, and changes should be made by replacement of sections or paragraphs rather than by adding extra text to override the previous parts.

    Would that it were so!



  • I am not so sure about your assessment of American politicians being wusses. It took the cooperation of both parties to bring us to this point. Congress wont pass a law that would cost them votes, for instance abortion. But they will approve activist judges who in effect do what congress is supposed to do, create new laws. Congress also approved giving the executive branch the power to create rules and regulations without congressional approval. This way congress is off the hook of responsibility by saying the courts or the president did these things, not us. And then the voters keep sending the same worthless, dishonest crooks back to congress year after year.
    Secondly look at how everyone vilifies the Tea Party candidates for voting, as they promised the people who elected them, they would. Their own main line party is against them for not toeing the party line.
    Why do they not cut spending, change the tax system, or balance the budget as these are all things voters say they want? Again an easy answer because both parties want to keep the money flowing to the people that finance their campaigns. The sad thing is that the Ukraine may have just shown the world the only answer to the conundrum we are in.



  • @lkoehn:

    I am not so sure about your assessment of American politicians being wusses. It took the cooperation of both parties to bring us to this point. Congress wont pass a law that would cost them votes, for instance abortion. But they will approve activist judges who in effect do what congress is supposed to do, create new laws. Congress also approved giving the executive branch the power to create rules and regulations without congressional approval. This way congress is off the hook of responsibility by saying the courts or the president did these things, not us. And then the voters keep sending the same worthless, dishonest crooks back to congress year after year.
    Secondly look at how everyone vilifies the Tea Party candidates for voting, as they promised the people who elected them, they would. Their own main line party is against them for not toeing the party line.
    Why do they not cut spending, change the tax system, or balance the budget as these are all things voters say they want? Again an easy answer because both parties want to keep the money flowing to the people that finance their campaigns. The sad thing is that the Ukraine may have just shown the world the only answer to the conundrum we are in.

    Just wanted to say I agree completely "The American Republic will endure until the day Congress discovers that it can bribe the public with the public's money."
    Alexis de Tocqueville
    So it appears we passed that point back in the 1930s. Do we fix it or just forget it.
    Can a politician be prosecuted when he lies during a campaign in order to get elected.



  • A politician can be prosecuted for violating their oath of office. Of course if the powers that be used this tack then we would quickly run out of politicians and have to build new prisons.



  • I am talking about a lie during campaigning.
    They are selling a product, themselves, for profit, the get a salary and they lie about the product.
    If a company did that it would be fraud.



  • The punishment for a lie while campaigning should be the loss of votes and the election however it does not work that way. The majority of blacks still think that Obama is great just because he is black. They are more racists then whites. The groups that he panders to, greenies, unions, progressives will support him or any democrat irregardless of failing policies and wasted funds. The lame stream media only reports what they want and then slant everything to the left so there is good news about democrats from them whether it is true or invented. Honest government is impossible without an honest media. Politicians have found that they can lie with impunity just as long as the money keeps flowing.



  • i always find the american fixation with their president … funny, confusing, disturbing ...



  • @serious: OK, they vote him but he
    [ul]

    • lives in a palace
    • can make (temporary) decisions over the head of others
    • is the supreme commander of the military
    • is strictly isolated from his own people be half an army of bodyguards
      [/ul]
      but still the people cheer and wave with flags when he visits their cities …

    ... sounds like he is a king.



  • If you were older and brighter you would understand that being an American president puts you Commander in Cheif of the most powerfully military in the world as well as the leader of your party to set policy in the congress. That is more then enough reason to be concerned about the president and his politics.



  • I do believe he wants to be emperor.



  • @serious:

    i always find the american fixation with their president … funny, confusing, disturbing ...

    Curious, why is it funny, confusing, disturbing?


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