Will we vote for independence?
What about regulation without representation? Is that not just as injurious and insufferable as the taxation without representation many Americans view as one of the straws that broke the colonists’ backs in 1776, leading to the Declaration of Independence?
Gathered in Philadelphia during the hot summer that year, our ancestors’ representatives to the Continental Congress used the Declaration to list in detail their complaints against the British king and parliament. Among them was “imposing Taxes on us without our Consent.”
But the Founders, more farsighted than they often are given credit for, anticipated the modern, federally based regulatory state, too. Specifically, they complained in the Declaration that King George III and the British Parliament had suspended local legislatures here, then “declaring themselves invested with Power to legislate for us in all Cases whatsoever.”
Here’s the thing, though: The Founders’ hope — not unquestioned even then, it should be noted — was that an indigenous Congress would be more responsive to its constituents’ needs and desires.
What happened instead was a gradual ceding of enormous power to the executive branch, by the very Congress that was supposed to watch out for us. And in some ways, the executive branch is being forced by the courts to use that power, even if those in office decide doing so is overstepping their authority. It is as if King George III had reconsidered, decided some policy annoying to the colonists should be rescinded, but was told by the English courts that he couldn’t do that because his predecessor would have disagreed.
Here’s what happened, beginning more than 50 years ago: Many members of Congress decided they favored heavyhanded environmental regulations, but didn’t want to take the flak for passing specific laws establishing them. So, they enacted the Clean Air Act in 1963. In 1970, with then-President Richard Nixon’s blessing, they amended the measure to give the Environmental Protection Agency sweeping power. Later legislation extended the agency’s mandate to water and ground quality.
Most laws detail a specific purpose and include provisions enabling the bureaucrats to achieve it. Environmental quality laws are different: In essence, they permit the EPA to decide what air, water and ground quality is desired, then do whatever it takes to meet that in-house standard. Congress doesn’t have to lift a finger.
So when an EPA action is appealed to the courts, judges often rule, in effect, that the EPA is right because the EPA says it’s right.
That can result in strange twists, as occurred several days ago when a federal appeals court ruled on a decision by new EPA officials, backed by President Donald Trump, to suspend enforcement of Obama-era methane rules for two years.
Can’t do it, the court ruled.
So, because a group of bureaucrats at one point in time decided they had the authority to enforce the methane rules, EPA officials henceforth must do that.
Crazy? You bet. But blame Congress for giving the EPA that power, then refusing to take it away. The Declaration of Independence has a term for such abuse: “Attempts by (the British) Legislature to extend an unwarrantable Jurisdiction over us.”
In 1776, Americans had no way other than declaring independence to deal with that. Now, we can vote irresponsible lawmakers out. The question is, will we?
Mike Myer can be reached at firstname.lastname@example.org.