Thursday, December 30, 2010


In football when the team playing defense attempts to line up in an area beyond where they're supposed to, a penalty is called for "Encroachment" and the offending team is marched back five yards for the rules infraction. In examples that I have talked about in this blog and in a column for the Toledo Free Press, agencies of the federal government appear to be regularly committing the same type of rules violations, attempting to usurp the authority of the legislative and judicial branches of the government in an attempt to push forward a progressive political agenda. 

  • Medicare regulations that go into effect January 1st are pushing forward a proposal for end-of-life care (also known as Death Panels) that the legislature rejected while passing health care reform. 
  •  The Agriculture Department is taking charge of school bake sales and the food sold at them in the name of protecting our youth from unhealthy food without a mandate to do so. 
  •  The Department of Health & Human Services has told health care providers that they will not be able to raise rates more than 10% without the permission of that agency, in spite of being given no such pricing authority in this industry. 
  •  Having failed to gain authority through "Cap and Trade" legislation, the Environment Protection Agency has nevertheless decided on its own to regulate the emissions of CO2 (a substance that at other times and places is considered naturally occurring) for oil refineries and power plants. 
  • The Department of Homeland Security has decided that global climate change is now a national security threat and will form a panel to identify and assess the impact that it has on their mission whether they have the authority to or not. 
  •  The FCC has broken new ground on multiple fronts, ignoring a letter from members of the Senate as well as court rulings to assume control over parts of the Internet. 
 It would be criminally naive to believe that these Cabinet level agencies, with Secretaries appointed by the Executive Branch of government, made these moves without explicit or implicit permission if not approval of the president. In fact we were warned that this was a possibility when some parts of the aggressive legislative agenda of the the Obama Administration were rejected in Congress. 

No more egregious attempt by one branch of the government to nullify the separation of powers has occurred since "The Judiciary Reorganization Bill of 1937". In this legislative proposal by President Franklin Delano Roosevelt, an attempt was made to grant power to the executive branch to appoint additional Justices to the High Court (up to a maximum of six) for every sitting member above the age of 70-1/2. Though the bill ultimately failed due to adverse public reaction, it is universally considered as an attempt by FDR to pack the High Court in order to get one more sympathetic to his New Deal legislative agenda and subvert one that was ruling parts of it unconstitutional. 

Evidently the current Administration has learned something from the mistakes of prior progressive presidents. Understanding that its current agenda was not and will not be approved and that the approval of what is still a Conservative Supreme Court was unlikely and irrelevant, it turned instead to a bureaucratic and regulatory process that was not in place on the same scale during FDR's time. If the legislative and judicial branches could be not counted on to do the right thing as proposed by the President, one need simply find an expedient way to go around them. 

Regardless of altruistic motives involved, the relative good for the country that might or might not occur, or whether you approve of the agenda being implemented is immaterial at this point. The simple fact of the matter is that the federal government was created with a system of checks and balances to prevent just such an overreaching by one branch of government and protect citizens from any one branch becoming too powerful. Any attempt to subvert those protections by any person or group must be considered inherently wrong. 

We have yet to see how the Legislature will react to some of these recently passed regulations and whether it will attempt to bring these agencies to heel through its control of oversight and budget. We must likewise wait as legal challenges are mounted to some of the legislation that apparently gave these agencies their regulatory powers. 

There is little doubt in my mind however, that a clear violation of the rules has already been committed. If it were within my power as referee of this game; I would certainly throw the yellow flag and charge this President, these Cabinet Secretaries, and their agencies with the penalty of Encroachment.


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