The Heritage Foundation

The Morning Bell
THURSDAY, OCT 1, 2009
The Obama Czar State Is About To Kill The Economy
Last week, Sen. Susan Collins (R-ME) introduced an amendment to the Interior Department appropriations bill that would have withheld federal funds for some 18 “czars” appointed by the Obama administration and not confirmed by the Senate. “There is no careful Senate examination of their character and qualifications. And we are speaking here of some of the most senior positions within our government,” Collins told USA Today.

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Senate Democrats went on to kill Collins’ amendment using a procedural tactic which “deeply disappointed” Collins. It is a shame the Collins amendment was not allowed a vote. But Senate oversight is no solution to the proliferation of czars under the Obama administration. The problem is much more fundamental to our Constitutional system and far predates President Barack Obama.
Yesterday the Environmental Protection Agency proposed a new rule that would regulate greenhouse gas emissions from hundreds of power plants and large industrial facilities across the country. The EPA claims it has the authority to issue these regulations pursuant to the 1970 Clean Air Act which authorizes the EPA to regulate any source that emits more than 250 tons of a recognized “pollutant” each year. The problem is, the Clean Air Act was never intended to regulate carbon emissions so the 250 ton threshold would inflict job killing regulations on millions of small businesses nationwide. The Heritage Foundation’s Center for Data Analysis has estimated that if the EPA regulated carbon objectively under the law, the economy would suffer annual job losses exceeding 800,000 for several years and a cumulative GDP loss of $7 trillion by 2029
But EPA Administrator Lisa Jackson says she has a solution to this problem. “We know the corner coffee shop is no place to look for meaningful carbon reductions,” said Jackson. This rule would not cover “every cow and Dunkin’ Donuts.” So Jackson has written the new rule to apply to only sources that emit at least 250,000 tons of greenhouse gas a year. But is that legal? Former EPA official Jeff Holmstead tells the Associated Press: “Normally, it takes an act of Congress to change the words of a statute enacted by Congress, and many of us are very curious to see EPA’s legal justification for today’s proposal.”

And that is the true danger behind a Czar State: the undermining of our Constitution and the rule of law in favor of an unconstitutional rule of experts. Boston University Law School professor Gary Lawson explains:
Many administrative agencies have authority over matters that are far removed from any of the enumerations in the Constitution. Typically, those agencies have power to promulgate rules under statutory mandates that are literally meaningless, such as mandates to set clean air standards “requisite to protect the public health”; to award broadcast licenses “if public convenience, interest, or necessity will be served thereby”; or to purchase real estate mortgages “the purchase of which the Secretary determines promotes financial market stability.” The agencies also often adjudicate matters under their statutes with only limited court review.
That would be exactly the sort of thing that the Constitution of 1788 is specifically designed to forbid–about as clearly unconstitutional as a title of nobility or a 28-year-old President. And that, of course, precisely describes the typical modern administrative agency in America.
The most egregious violation of this principle was the Emergency Economic Stabilization Act which granted the Secretary of the Treasury unchecked power to do whatever he wanted without any meaningful checks. The result was a schizophrenic management of the Troubled Asset Relief Program which undermined the rule of law, destroyed market confidence, and led to the nationalization of America’s largest automobile manufacturer. Did anyone in Congress believe they were voting for the government takeover of General Motors last September? No. Did anyone in Congress believe they were voting to allow the EPA the authority to regulate carbon emissions from Dunkin Donuts in 1970? No. Such are the evils of the Czar State.

The Washington Post consistently calls for legislation to tackle global warming instead of using the Clean Air Act as the Obama administration is moving to do. But the legislation introduced by Sens. John Kerry (D-MA) and Barbara Boxer (D-CA) is no better at containing the EPA’s power than the Stabilization Act was at containing Treasury’s. According to the Post, Kerry-Boxer:
The measure also calls for the Commodity Futures Trading Commission to set regulations overseeing the carbon trading market, though it does not specify what those rules would look like.. …And the bill does not spell out how those rebates would be distributed, just as it leaves open the question of how the federal government would allocate carbon allowances to ease the transition to a low-carbon economy.
In other words, Kerry-Boxer turns the fate of our economy over to the “experts” in the Obama Czar State with no chance for Americans to limit their power. 800,000 jobs lost a year. Cumulative GDP loss of $7 trillion by 2029. The harm caused by the destruction of the separation of powers just got a lot less theoretical.