EPA drafts regulations, enforces the regulations and, when there’s an objection, an EPA administrative law judge decides the case. It’s exactly what James Madison warned about in Federalist 47: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
Recently a federal court pushed back a bit. In August, the D.C. Circuit Court of Appeals set aside EPA’s “Cross State Air Pollution Rule,” holding that EPA doesn’t have the statutory authority to implement that rule. The decision sent Washington Post columnist Steven Pearlstein into a tizzy.
Pearlstein railed against “the business community’s penchant for whining about ‘regulatory uncertainty’ while spending tens of millions more to mount legal challenges to every new regulation,” he wrote, citing a “jihad” against the regulatory state. “Nowhere has this strategy been pursued with more fervor, or more success, than the U.S. Court of Appeals for the District of Columbia Circuit, where a new breed of activist judges are waging a determined and largely successful war on federal regulatory agencies.”
Um, “jihad”? This is far from a holy war. It’s merely a struggle between competing branches of government. And that’s exactly how our constitutional system was designed to operate.
“The great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives to resist encroachments of the others,” as James Madison wrote in Federalist 51. “The constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other.” And here’s a court doing exactly that: checking EPA.
Somebody needs to.
“During the three years of the Obama Administration, a total of 106 new major regulations have been imposed at a cost of more than $46 billion annually, and nearly $11 billion in one-time implementation costs,” wrote James L. Gattuso and Diane Katz in the latest version of Red Tape Rising. “The most expensive regulation of 2011 was imposed by the Environmental Protection Agency, which issued a total of five major regulations at a cost of more than $4 billion annually.”
All that red tape is a big reason the economy remains stuck in neutral. But Pearlstein doesn’t see it that way. “A government that can’t accomplish anything is a government that nobody will like, nobody will pay for and nobody will want to work for. For tea party conservatives, what could be better than that?” he wonders.
Let me suggest: A constitutional government. One that lives within its means. One that allows job creators to thrive. Those would be positive steps we can take, if the regulators will get out of the way.