Legislating Through Regulations

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BY FRANK SALVATO – I have often written about “the bright shiny thing,” an event that is sure to catch the mainstream media’s and public’s eye while, in fact, something much more important is taking place. It is a common practice amongst politicos from both sides of the aisle, but a practice heavily employed by the Progressive Left. Movies have even been made about it. Wag the Dog comes to mind as a perfect, albeit fictitious, example of the execution of a “bright, shiny thing” strategy.

The Obama Administration, having completely annihilated any claim to being a “transparent” government, uses the “bright, shiny thing” strategy with an artful, even if nefarious, prowess, doing so while maintaining plausible deniability. As a life-long student of Chicago politics, to watch this administration employ the “bright, shiny thing” strategy is to watch an exercise in political beauty, even if it is being employed to usurp the founding philosophies of our nation, while paying short-shrift to the United States Constitution.


The Obama Administration’s use of the “bright, shiny thing” strategy has been one of subtle consistency. Shortly after Mr. Obama’s election, then-Chief of Staff Rahm Emanuel, was quoted as saying,

“You never want a serious crisis to go to waste. And what I mean by that, it’s an opportunity to do things that you think you could not do before…”

By stepping into the spotlight and declaring what all politicos understand, but would never have the nerve to say, Mr. Emanuel – unwittingly or otherwise – confirmed the existence and favored use of the “bright, shiny thing” strategy by the political class and, especially, the Progressive Movement. This strategy has been used to win elections, to salvage political careers, to move agendas forward and to pass legislation in the midnight hour. Today, the Obama Administration uses this very strategy to attempt to establish legislation by regulation.

Legislation by regulation can be succinctly described as the Executive Branch executing cabinet level agency policy directives to subordinate Executive Branch agencies (i.e. the Justice Department mandating regulatory policy to the FBI, the Department of Homeland Security issuing directives to ICE, or the Treasury Department issuing dictates to the IRS) resulting in regulations that serve, effectively – and in the end, as legislation. The execution of such policy usurps the authority of the Legislative Branch in its exclusive constitutional authority to craft legislation. The use of this tactic transgresses the already damaged Separation of Powers.

A perfect example of the implementation of legislation by regulation comes in the Obama Administration’s move to control greenhouse gases (otherwise known as CO2, the stuff of which we all exhale) through EPA regulatory compliance.

Knowing full well that any attempt to move the junk science of climate change through Congress as Cap and Trade legislation would be met with devastating defeat, the Obama Administration and its Czars and Czarinas decided to implement a strategy to force the American private sector into compliance via EPA regulation. Armed with a Supreme Court ruling that allowed for the EPA to designate CO2 as a pollutant, the Obama Administration found itself inclined to do just that.

Recently, the EPA’s Lisa Jackson was caught advancing an outrageous level of propaganda in touting amendments to the Clean Air Act in what many see as an attempt to validate the practice of legislation by regulation. Successful in her propagandizing or not, the point remains, that legislating via regulation is unconstitutional as a matter of Separation of Powers.

Another example of legislating through regulation comes in border security enforcement.

The Obama Administration – as have past administrations, albeit to a much, much lesser degree – has, via policy, established regulations for the Department of Homeland Security (which trickle down to the Immigration and Customs Enforcement agency) that literally turn a blind eye to a great many illegal entrants to the nation over the Southern border of the United States. Colluding with DHS is the Justice Department, which has not only executed what can only be described as a lethargic approach to prosecuting those who enter the country illegally, but has taken to bringing forth lawsuits against State governments for daring to enforce federal immigration and border security laws, even as the federal government abdicates its responsibility to carry out those laws.

In both of these examples we witness the authority of the Legislative Branch of government being usurped by the Executive Branch: in the case of the EPA, by executing regulatory policy to advance an ideological agenda, and, in the case of DHS and the Justice Department, by ignoring legislation – signed into law – in order to facilitate a political agenda and an agenda of social engineering.

And, in yet example of legislating through regulation, we see the Health and Human Services Secretary, Kathleen Sebelius, issuing “waivers” to politically connected crony operatives, in the form of labor unions and special interest group organizations, exempting them, even if for a short period, from the behemoth and ill-conceived “Obamacare” health insurance legislation. By instituting regulatory exemptions that create a protected class, i.e. the labor unions and special interest group organizations, we see the marginalization of enacted legislation to advance a schema of social engineering and the Progressive Movement’s agenda.

In all the examples given, the Obama Administration has obliterated the Separation of Powers, usurping the US Constitution, to affect a Social Justice agenda; a social engineering agenda. In each of the examples given, either by over-stepping their authority or abdicating their responsibility to “administer” government, this administration has essentially abdicated its constitutional duty to execute government in a constitutional manner.

John Adams, in describing the very nature of the Republican form of government in Novanglus Essay No. 7, states:

“If Aristotle, Livy, and Harrington knew what a republic was…they [would] define a republic to be a government of laws, and not of men.”

If we are to be true to the unique philosophy that crafted the very essence of Americanism, if we are to be historically and constitutionally literate; honest in our approach to government, then we must accept as sacrosanct  this idea: that our government is a government of laws and not of men, their agendas or societal desires.

To that end, this administration – and, in fact, all presidential administrations that subscribe to tactic of legislation by regulation, especially in attempting to affect the artificial engineering of society – must be viewed as acting in a way that is antithetical to a sovereign and constitutionally Republican for of government. In fact, it would not be out of line to describe such acts as tyrannical in nature.

Justice Louis D. Brandeis is quoted as having said:

“Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evilminded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.”

America, beware the “bright, shiny thing.”