So the President issued another Executive Order this week, supposedly taking aim (yes, dammit, I DID use that word on purpose!) at “stupid, redundant, and outdated” regulations. The business community hailed this endeavor with laudatory praise. However, as is the case with so much that the President says, what he does paints a slightly different picture. The order, which supposedly echos what Billy Jeff did back in 1993 has some “interesting language” in it. Some highlights are in bold below:
(b) This order is supplemental to and reaffirms the principles, structures, and definitions governing contemporary regulatory review that were established in Executive Order 12866 of September 30, 1993. As stated in that Executive Order and to the extent permitted by law, each agency must, among other things: (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.
(c) In applying these principles, each agency is directed to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. Where appropriate and permitted by law, each agency may consider (and discuss qualitatively) values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.
The problem is that once you start injecting goals such as “distributive impacts”,”fairness” and “equity” to people who are accountable to no one, you have removed any concept of regulations, which have the force of law, being applied uniformly. You can officially waive any notion of equal treatment under the law when those charged with administering it have been given carte blanche to practice and apply disparate treatment to similarly positioned individuals if it meets a subjective criteria regarding those categories. Not to mention the fact that “equity” is not in the purview of administrators; it is the purview of the judiciary, something that the Constitution is VERY clear about.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States; — between a State and Citizens of another State [Modified by Amendment XI]; — between Citizens of different States; — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
Article III, Section 2, United States Constitution.
This is authority that agencies were NEVER meant to have, and it was authority that was NEVER his to give. It seems that once again, this “Constitutional Scholar” once again shows what he doesn’t know, or maybe what he hopes that we don’t know. Either way, it certainly seems to be an attempt to bypass legitimate Constitutional authority, like maybe a House of Representatives which is no longer in the bag for his agenda.
The coincidences become too much to ignore.