Students learn in civics class—or at least they used to—that under the U.S. Constitution, Congress passes the laws, and the president and the rest of the executive branch have the duty to “take Care that the Laws be faithfully executed.”
It seems that many federal officials missed that lesson in school, however, since government agencies today are writing regulations that flout the law with increasing regularity.
Instead of executing laws “faithfully,” the new standard seems to be “to the extent it’s convenient.”
Take the Treasury Department’s recent rulemaking on federal funding to state and local governments related to COVID-19. You might have thought that the “public health emergency” related to COVID-19 was over, but regulators at Treasury came up with some imaginative changes to the English language to ensure that the federal gravy train keeps on rolling.
By redefining “obligated” funds to include certain money that state and local governments merely estimate they will spend, Treasury effectively is extending the deadline for governments to tap the $350 billion COVID-19 slush fund all the way to 2026. The cost of this change to taxpayers likely will be in the tens of billions of dollars.
Treasury’s rule is especially egregious because it bypassed laws intended to ensure that significant regulations allow a minimum of 30 days for public comment and congressional review before going into effect. But Treasury falsely declared those laws didn’t apply and made the rule effective on the next business day.
All this was done, of course, the week before Thanksgiving, when it was most likely to go unnoticed. (It didn’t.)
This is hardly the Treasury Department’s first offense.
In the past couple of years, it:
- Classified electric cars leased by consumers as “commercial clean vehicles” to allow them to circumvent income limitations and domestic content requirements.
- Negotiated the U.S., under Treasury Secretary Janet Yellen, into a new global minimum tax regime that is a uniquely bad deal for American companies, done without what the Constitution calls the “Advice and Consent of the Senate.”
- Concocted a new affordability test for health insurance coverage to expand eligibility for the Obamacare Premium Tax Credit, which appears nowhere in statute.
- Extended tax credits to foreign automakers by classifying countries as having “free trade agreements” with the U.S. based on extremely narrow trade deals covering only certain minerals.
- Twice pushed back by a year the start date of a new threshold for third-party payment apps to report transactions to the IRS, ignoring the effective date written in law.
- Plowed forward with a pilot program for government-run tax preparation services with no congressional authority.
The list could go on.
And of course, it’s not just the Treasury Department. Many federal agencies have stretched, twisted, or outright ignored the law instead of executing it faithfully.
The problem of executive overreach has been especially critical since Democrats lost control of the House of Representatives at the beginning of 2023.
A divided Congress stalled a left-wing legislative agenda, but federal agencies’ “creative interpretations” and selective enforcement of the law kept the agenda moving forward.
Or, more accurately, leftward.
As bad as it is when our elected representatives in Congress pass misguided laws, it’s much worse when unelected and unaccountable bureaucrats and agency heads ram through unlawful regulations. That is not how our democratic republic is supposed to operate.
In a government of the people, by the people, for the people, it’s imperative that every couple of years the people can toss out the politicians who are responsible for bad laws. But if the laws as executed are some Frankenstein version of legislation passed by Congress and rules and regulations concocted by political appointees and agency bureaucrats, then it’s much harder for the people to hold anyone accountable for laws they dislike.
When the executive branch oversteps and snatches power from the legislative branch, the often-ignored third branch of the federal government—the judicial branch—becomes even more important. In the brilliant system devised by the Founders, courts can and must step in when federal agencies go rogue.
Of course, some courts are more predisposed than others to stopping rogue federal agencies.
But the general public can help push back against rogue federal agencies that issue unlawful regulations by submitting public comments in matters that concern them as citizens or taxpayers.
And ultimately, the people can elect politicians who they trust to appoint judges and Cabinet officials who respect the Constitution and the rule of law.
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