One of America's leading authorities on technology and telecom policy, Motley is a writer, television and radio commentator, political and policy strategist, lecturer, debater, activist, and policy advisor to The Heartland Institute.
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The Barack Obama Administration has almost inarguably executed more unilateral sweeping power grabs than any previous presidency ever. Administration defenders lamely point to the number of Executive Orders issued: “GOP Slams ‘Imperial’ Obama After Fewest Executive Orders In 100 Years (CHART).” Which is technically true – but totally irrelevant.
A minor point: Not every single Executive Order grabs additional unilateral power (though many do). A MAJOR point: What matters most is total Grabs-by-Regulations – not specifically Executive Orders. New regs issued by the multitudinous Executive Branch departments, agencies, commissions and boards – that exceed the power granted them by Congressional legislation.
It is here that President Obama is making so much awful history. Every arm of his Leviathan is lawlessly sweeping up more and more of the private sector and subjecting it to radical government overlording. And as he runs out of time in office – these grabs have occurred with increasing frequency and force.
As but one example: “Obama EPA Issues Coal-Killing Rules To Cut Carbon Emissions 30 Percent.” Tally-wise – that’s just one power grab. But it is a HUGE power grab. President Obama’s Environmental Protection Agency (EPA) is mandating that we cut our energy output by nearly one-third.
I don’t recall our elected Congressional representatives debating the merits and demerits of such a sweeping reduction in national productivity. Then deciding that the benefits outweigh the costs – and passing the requisite legislation authorizing the EPA to impose these draconian restrictions.
Neither do any of you – because it never happened. Unelected Obama bureaucrats just decided to do it. Just one power grab – but with HUGE power grabbed.
This Executive Branch unilateralism forces everyone else to respond – to defend the rule of law. One of the few ways they can? “Twelve States Sue the EPA Over Proposed Power Plant Regulations.” Conservatives don’t particularly like lawsuits – but we don’t dislike all of them. When the Feds are this out of control – file away. These suits are the legal equivalent of trying to fend them off with a whip and a chair.
Far too often these bureaucrats are appointed with just this sort of unilateralism in mind. Chosen for their willingness to exceed the law – and/or remarkably un-self-aware of how far beyond their legal bounds they go.
To wit: Obama Federal Communications Commission (FCC) Chairman Tom Wheeler. Who in February joined with his two fellow unelected Democrat FCC bureaucrats to fundamentally transform how the government regulates every aspect of the entire Internet and its multi-billon dollar economy. Which is a HUGE new overreach.
In 1996, our duly elected Congressional representatives passed in bipartisan fashion the Telecommunications Act. Which was signed by the then-President – Democrat Bill Clinton. The Act barely references the Internet – and then only to basically tell government to leave it alone. As nigh always happens when government leaves something alone – the Internet became a free speech-free market Xanadu.
Flash forward to this past February. Chairman Wheeler and his two fellow unelected Democrat FCC bureaucrats saw how the 1996 Act restricted what they could do to the Web – and it vexed them. So they unilaterally decided that they would shove the Internet under the 1934 Telecommunications Act – and regulate it as a telephone, under telephone law.
Because I’m sure the 1934 legislators had in mind regulating the decades-away World Wide Web when writing their now-eighty-year-old phone law. In a two-term administration chock full of power grabs – this may well be the most absurd.
Of course this kind of government overreach is going to result in push back. To wit: Nearly a dozen separate litigants have filed lawsuits to try to rein in the Feds and their outrageous action. Because it’s just that HUGE. Oral arguments therefore started at the D.C. Circuit Court on Friday.
How un-self-aware is FCC Chairman Wheeler? This un-self-aware:
“We are going to be sued. That’s the history. Every time in this whole discussion any time the commission has moved to do something, one of the big dogs has gone to sue…. We don’t want to ignore history.”
Actually, nearly a dozen dogs – of all sizes – are suing you. Oh – and the FCC has tens if not hundreds of votes in any given year. Most of them aren’t sued – because most of them are the FCC acting within its legal bounds. When you insist on grossly exceeding your legal authority, Mr. Chairman – expect some legal reaction.
And here’s some history, Mr. Chairman, which you appear to be entirely ignoring.
The Internet became a free speech-free market Xanadu – without the government regulating in any significant way. Let alone in so obnoxious a fashion as you have just slammed down upon it. The Web is the greatest example of human endeavor and expansion in our species’ history. “If it ain’t broke – don’t fix it” – was never more aptly applied.
And here’s some more history: The FCC has twice already tried to similarly regulate the Internet. And far less egregiously than this. The Commission then at least tried to do so under the 1996 law – passed when there actually was an Internet.
And this Internet power grab is WAY huger than those two. It’s as if the Court twice said “You can’t have a piece of pie” – and the FCC said “Fine, we’re taking the whole bakery.”
That’s an awful lot of history you’re ignoring, Mr. Chairman.
Getting sued isn’t a fait d’accompli. It’s in fact quite avoidable – as demonstrated by dozens of reasonable FCC votes each and every year.
If you want to avoid the lawsuits – simply remain within the bounds of the law. Rather than pole-vaulting over them.