THE COLUMN: To Save America, Abolish the Regulatory Agencies

Lest you were still laboring under the illusion that we live in a representative democracy, aka a republic, let the scales now once and forever fall from your eyes. The Republic that Boomers of my generation grew up pledging allegiance to every day in the classrooms of 1950s America, hand on heart, is no more. In fact, it died during the Franklin D. Roosevelt administration, which first bollixed up the recovery from the Great Depression by extending it for a decade while FDR and his "progressive" advisers (some of highly uncertain loyalty) gradually introduced neo-fascist central-planning (they were great admirers of Mussolini). Then they caught a lucky break at Pearl Harbor and suddenly the brakes were off. Washington, D.C. never looked back, booming from a backwater burg to the capital city of the planet Earth in the span of a few decades.

We liked Ike.

Dwight Eisenhower, the victorious Allied senior commander in the European theater, most famously warned the nation at the end of his tenure in January 1961 about the "military-industrial complex." As the general who oversaw the greatest mass mobilization in American history and who fought an industrial-strength war with it, Ike was well-positioned see the danger ahead. That particular danger came and went with the Soviet Union but his words apply today to a newer, domestic threat:

We face a hostile ideology-global in scope, atheistic in character, ruthless in purpose, and insidious in method. Unhappily the danger it poses promises to be of indefinite duration. To meet it successfully, there is called for, not so much the emotional and transitory sacrifices of crisis, but rather those which enable us to carry forward steadily, surely, and without complaint the burdens of a prolonged and complex struggle-with liberty at stake. Only thus shall we remain, despite every provocation, on our charted course toward permanent peace and human betterment.

But each proposal must be weighed in the light of a broader consideration: the need to maintain balance in and among national programs-balance between the private and the public economy, balance between cost and hoped for advantage-balance between the clearly necessary and the comfortably desirable; balance between our essential requirements as a nation and the duties imposed by the nation upon the individual; balance between action of the moment and the national welfare of the future. Good judgment seeks balance and progress; lack of it eventually finds imbalance and frustration.

"Good judgment," however, is precisely what's lacking in today's Washington. Bureaucratic parasitism has only accelerated since start of the Nixon administration (Nixon was Ike's veep), as demands for D.C. to "do something" about pretty much everything grew and grew. Having won the war in Europe with Soviet and British help, and defeated the Japanese Empire practically by themselves, Americans felt there was no task too big to tackle. On Nixon's watch —Tricky Dick's fatal flaw, like Donald Trump's, was the fool's errand of trying to get his enemies (who detested him) to like him—the regulatory agencies were summoned into being, dark golems bent on destroying the Constitution in the guise of trying to Save the Earth.

The Era of Big Government starts here.

One of the first up was the Environmental Protection Agency, the demon spawn of the National Environmental Policy Act of 1970, which mandated (what an ugly word for a democracy to employ) "environmental impact" statements for future federal projects. Nixon put teeth in the law with the creation by executive order of the Environmental Protection Agency at the end of that same year. Then the unelected bureaucrats took over, and turned what had been sold as benign into a ravenous, uncontrollable, punitive beast. And now here we are:

The Biden administration is planning some of the most stringent auto pollution limits in the world, designed to ensure that all-electric cars make up as much as 67 percent of new passenger vehicles sold in the country by 2032, according to two people familiar with the matter. That would represent a quantum leap for the United States — where just 5.8 percent of vehicles sold last year were all-electric — and would exceed President Biden’s earlier ambitions to have all-electric cars account for half of those sold in the country by 2030.

It would be the federal government’s most aggressive climate regulation and would propel the United States to the front of the global effort to slash the greenhouse gases generated by cars, a major driver of climate change.

Yes, from tree-hugging to the federal government's forcing you to buy an electric car by leaving you no other choice was but the work of a half-century. But that's exactly where a regulatory agency's path inevitably leads. While they are ostensibly created by legislative acts or executive orders, once up and running they are essentially accountable to no one. Even worse, they also have quasi-juridical power, which means as far as you're concerned, they're judge, jury, and executioner. The EPA is dangerous because by its germaphobic, totalitarian logic, anything that can affect "the environment" is fair game for its basilisk glare. That mud puddle in your back yard is tomorrow's "wetland," buddy, so don't even think about turning it into a swimming hole.

The post-Frankfurt School Left almost immediately seized upon the EPA as the perfect vehicle by which to take control of the American political and economic systems, since its authority is unquestionable. It's no coincidence that the first Earth Day also came in 1970; mighty oaks from little acorns grew and today we are in the thrall of a mass hallucination called "climate change" whose unstated but very real goal is to bring our economy to its knees and our way of living to an end, for our own good.

Miss me yet?

The quintessentially unlawful and just plain dumb idea of an unregulated regulatory agency is, naturally, an American invention, going back to the Interstate Commerce Commission of 1887, initially established to regulate the railroads but quickly mission-creeping its way into control of the roads and waterway and even the oil companies. The ICC was abolished in 1996, but it birthed a parade of little gremlins, which remain with us today:

The assertion of governmental control in other industries led to the creation of many other regulatory agencies modeled upon the ICC, chief among these being the Federal Trade Commission (FTC; 1914), the Federal Communications Commission (FCC; 1934), and the Securities and Exchange Commission (SEC; 1934). In addition, regulatory powers were conferred upon the ordinary executive departments; the Department of Agriculture, for example, was given such powers under the Stockyards and Packers Act (1938). Much of Pres. Franklin D. Roosevelt’s New Deal program of the 1930s was carried out through administrative regulation. During the same period a comparable development took place in state and municipal government. Other, more recent federal agencies included the Equal Employment Opportunity Commission (EEOC; 1964), the Environmental Protection Agency (EPA; 1970), the Occupational Safety and Health Administration (OSHA; 1971), the Consumer Product Safety Commission (CPSC; 1972), the Federal Election Commission (FEC; 1975), the Nuclear Regulatory Commission (NRC; 1975), and the Consumer Financial Protection Bureau (CFPB; 2010).

This is no way to run a railroad, much less a country. And yet there has been remarkably little pushback against the agencies, probably because their workings are so complex and obscure that few understand the danger they pose to the very idea of Republic of free citizens. "He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance," complained the colonists in the Declaration of Independence. Little did they know what was coming.

The structure of the American government has been bitch-slapped by these interlopers for far too long. No self-respecting country can so easily and willingly cede its sovereignty to mamelukes and eunuchs and remain independent for long. Nixon's misguided monster needs to be chased by a pitchforked mob into a ruined windmill (!) and set ablaze, without possibility of resurrection or a sequel. Not just the EPA but all them; it's time to give self-government a chance again. All it takes is strong leadership and a lot of willpower. Surely there's a candidate somewhere on the horizon, perhaps undeclared as yet, who answers that description?

THE COLUMN: To Save America, Repeal the 26th Amendment

For only the second time in their sordid history—the first was the repeal of Prohibition—the Democrats have found a "progressive" law they want to repeal. It's the woefully misbegotten 26th Amendment to the Constitution, the one passed by Congress and ratified by the states that gave 18-year-olds the right to vote. It's one of the briefest pieces of legislation ever to emerge from the bowels of Washington, rushed through in a Vietnam-era fever to mollify the young people who were rallying in their thousands and ten thousands to protest the war. Here it is:

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The impetus behind the amendment was the slogan, "old enough to fight, old enough to vote." The reference was to the draft, which yanked multiple platoons of baby boomers out of their ordinary lives and packed them off with a gun in their hand to fight for LBJ and Tricky Dick Nixon. Well, that's not exactly true: those kids of the era smart enough or rich enough to attend college were deferred under the Selective Service Act, the theory being that there was no need to sacrifice the best and brightest when you could ship a year's worth of high-school mechanics-in-training off to the rice paddies as cannon fodder in a war the American government most certainly did not want to win, while preserving the Robert Strange McNamaras of tomorrow for lives in corporate or governmental servitude. Who knows, you might even get a president—or two or four—who managed to dodge military service and bounce straight from academe or business into the Commander-in-Chief's chair without ever picking up a gun.

Nope from Hope.

Through Joe Biden, a total of 16 presidents (or 14, depending on how you count) never spent any time near a boot camp or one of the service academies, including FDR (who was, however, Asst. Secretary of the Navy from 1913 to 1920), William Howard Taft (Secretary of War 1904-1908), John Adams, Thomas Jefferson, Woodrow Wilson, and Calvin Coolidge. These usually were men who came of age during peacetime, in contradistinction to the 31 men who fought for their country, including the five Civil War presidents such as Grant, Hayes, Garfield, and a raft of presidents who saw action during World War II (Eisenhower, JFK, Nixon, et al.). It wasn't until Bill Clinton supplanted veteran George H.W. Bush in 1992 that the era of the draft dodger got fully underway, with only George W. Bush having spent any time in the military among the most recent five presidents.

Amazingly, we heard nary a peep from the likes of Grant and Ike or the men who served under them regarding the "unfairness" of being sent to fight before first casting a ballot. This is partly because the draft, in its various manifestations during American history, generally came during a time of national emergencies and then stopped; a peacetime draft didn't appear until 1940, with the U.S. on the verge of war in both Europe and Asia. The military is now all-volunteer (i.e. a professional standing army, a notion previously abhorrent to Americans).

More important, the vote was considered a privilege, not a "right" (there is no such right in the Constitution), and it was correctly judged that a young man needed to attain his majority and his maturity before he could share in the governance of the Republic. The franchise, therefore, represented a coming-of-age of the men to whom it was granted. It was never intended to be "universal."

Choom Gang this.

By 1971, however, the Vietnam War had already been going on for nearly a decade, and under the spectacularly bad management of phony veteran Lyndon Baines Johnson (Silver Star for riding in an airplane) and the quintessential egghead, McNamara (disqualified for combat service during WW2 by "bad vision"), and three years after Nixon promised he had a "secret plan" to end the war, the natives were growing restive. Especially the Boomer generation, who had experienced neither the Depression nor the war, as their parents had; hardship was unknown to them.

During that period, a college education—once reserved for the upper classes and meritocratic strivers—was gradually transforming from something that only a very small minority of American men and women enjoyed into something deemed to be necessary to achieving a middle-and-upper-class lifestyle. This was when a wag-the-dog attitude toward higher education began to take root, not least in academe itself. Because holders of a college degree generally earned more than their high-school-only counterpart, it became axiomatic that the degree itself caused the rise in income. Post hoc, ergo propter hoc.

Further, graduate degrees at that time tended to be highly specialized; the figure of the Eternal Graduate Student appeared, in part to continue avoiding exposure to Selective Service, although those deferments were eventually done away with as well by the time the draft was finally abolished in 1973. It is this context, therefore, that the move to lower the voting age took hold and eventually, in the teeth of massive opposition to the draft—not the war, which most Americans supported until LBJ's ineptitude had become clear to all—must be considered.

Five deferments for asthma.

The war is long gone, lost from the start by American unwillingness to devote the resources necessary for victory, but the 26th amendment lives on. So I wish I could hail the latest Democrat proposal to repeal the 26th, but alas I can't, since the cure is worse than the disease:

More than a dozen House Democrats this week proposed an amendment to the Constitution to allow 16-year-olds to vote in an apparent attempt to make it easier to enact left-leaning policies like gun control and pro-environmental measures. Democratic Rep. Grace Meng of New York introduced a resolution that would do away with the 26th Amendment to the Constitution, which allows U.S. citizens to vote if they are at least 18 years of age. The resolution would replace that with new language that says: "The right of citizens of the United States, who are sixteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age."

Meng hadn’t released a statement on her proposal by early Thursday afternoon. But she released a statement in the last Congress, indicating a belief that lowering the voting age by amending the Constitution would let younger people have a say on many of the positions supported by Democrats. "Our young people, including 16- and 17-year-olds, continue to fight and advocate for so many issues that they are passionate about from gun safety to the climate crisis," she said. "They have been tremendously engaged on policies affecting their lives and their futures."

Yes, you read that right: 16. At an age when boys are eating boogers and lighting farts, getting more tattoos than the average sailor, and having sex with high school girls. At an age when girls (they're not even close to being "women") are pondering sex change operations and seeking out abortion services and getting even more tattoos than the average hooker. And these are the unformed humanoids with whom the Democrats (unformed humanoids themselves, to be sure) want to entrust the nation's future?

Missed me by this much.

So yes: repeal the 26th. And then restore the status quo ante, to 21. It was an amendment passed in the heat of the moment and under tremendous political pressure. It didn't do Nixon any good; a year after it became law, he was forced to resign over the now-trivial matter of Watergate, less than two years after he had won one of the greatest landslides in American history. (America's first media coup; Trump was the second). Like Trump, he was reviled from the start, cordially loathed by the Democrat/Media Complex, tortured weekly by the Washington Post's singularly nasty political cartoonist, Herbert Block, and never handed an even break.

Ditto Trump with the Covid hoax, played for a fool by Anthony Fauci and the Democrats and maneuvered by media pressure into crashing a "vaccine" that has proven more deadly than the semi-imaginary disease it was meant to "cure," the news of which was conveniently withheld by Big Pharma and the media until after the election, at which point it was administered to a reluctant populace at gunpoint by a party of political opportunists who now want to bring you... the 16-year-old voter.

Where will it stop? It won't, until we stop it. As I like to say, they never stop, they never sleep, they never quit. Next will be the 12-year-old voter, then the 8-year-old voter; by the time the Democrats reach the unborn voter they may finally reconsider their position on abortion, but by then the Republic will have passed into history, the victim of its own unlimited appetite for diversity, tolerance, and "progress." The parable of Chesterton's Fence comes once more to mind, except this time the fence has been demolished, the teenagers are not about to bring it back, and the grownups are long gone.

What Price the Endangered Species Act?

In 1973 when President Nixon signed into law the Endangered Species Act, which had been passed by a bipartisan vote in Congress, everyone doubtlessly conceived it would protect valued species like the bald eagle, the California condor, the grizzly bear, humpback whale, and the peregrine falcon. I doubt that anyone imagined it would destroy so much of the West’s economy; allow opportunistic groups to kill or substantially delay and raise the cost of needed water and energy projects to save insignificant creatures which in the end thrived after transplanting them; contribute to massive forest fires; and end up killing off one species to save another.

That, however, is just what has happened. The Trump administration tried to rectify the worst features of the regulations under the act and the present administration has rescinded them. Three examples show the operation of the act and its need for reformation.

The Snail Darter

The first use of the act to kill or delay a major project was the Tellico Dam/snail darter case. It became a template for every green group trying to prevent major construction projects. In 1967 efforts to create the TVA’s Tellico Dam for water storage in Tennessee began. A group led by a professor at the University of Tennessee tried to halt the project when it was 90 percent completed because it claimed the project endangered the snail darter population. This is a small fish (about 2 to 3 inches) and it was claimed that the dam blocked its migratory route. The litigation went to the Supreme Court which held the act applied. Various legislative remedies were attempted until finally a public works appropriation exempted Tellico from the act . President Carter signed that law in 1980 and the project, long delayed at considerable cost went into effect. As for the snail darter, this year it has been taken off the list of endangered species, transplant efforts having succeeded.

 TVA’s contribution to the reservoir and peninsula supports about 1,800 jobs and $137 million in capital investment annually as a result of economic development efforts led by the Tellico Reservoir Development Agency. As for the snail darter, the fish was reclassified from endangered to threatened in 1984 and now thrives throughout the Tennessee River system.

But the case law proved useful for any group desiring to block contemplated projects.

The Meadow Jumping Mouse

This is a tiny long-tailed mouse able jump as much as three feet. It is found in New Mexico, Arizona and Colorado. In 2014 it was listed as endangered and the United States Fish and Wildlife Service designated 14,000 acres in these three states as “critical habitat” for the mouse, substantially reducing livestock grazing on this land. Understandably the ranchers sought injunctive relief, contending this designation would contribute to their costs, endanger the cattles’ health and lower property values. The federal courts rejected their claims.

The Spotted Owl

To save the spotted owl, a medium-sized brown bird, the act was employed to destroy California’s timber industry by preventing logging on millions of acres of forest, and in the process led to the state’s massive wildfires because the demand that the trees remain untouched created substantial tinder for such fires.

From 1988 to 2011... the number of wildfires in California “increased by seven large fires annually.” It is no coincidence that 1988 was the year the spotted owl received protection. Over the past five years the wildfire situation has grown even worse. Seven of the deadliest fires in state history have occurred in that period. The state’s annual fire season now extends from June or July into late fall.

The wildfires have gotten wilder too—bigger, deadlier, harder to contain and put out. Last year’s Dixie Fire laid waste to a million acres of land, earning the unhappy title of California’s biggest fire. And, as with all these major conflagrations, it spread smoke up and down the state, darkening skies and poisoning the air.

Now some of the environmentalists have switched gears, and want “controlled burns, selective thinning of drought-ridden trees and underbrush”—i.e, competent forest management. Unfortunately, in killing the lumber industry there are now fewer loggers and sawmills to handle the job. as for the spotted owl, it has a new threat: barred owls have invaded their territory and are being culled to save the spotted owls. If we cull too many of them, will they, too, go on the endangered list ?

The destruction of so many lives and livelihoods in an effort to reach environmental stasis—an impossibility—is ridiculous. We need a stronger application of cost-benefit analysis; the Trump administration made that effort in 2019, revising the rules to place greater weight on the act’s economic consequences. It raised the standard for designating areas as “critical habitats” that are not currently inhabited by protected species . It set stricter standards on adding species from the legislation's protections and made it easier to remove them from it. It permitted agencies to make economic assessments when deciding which species to protect regarding construction projects in critical habitats, and it limited the unmanageable and costly delays a cumbersome consultation process had set in place.

Very quickly the new administration set about removing these revised regulations. On July 5th of this year a federal district court restored three of the pre-Trump regulations. On July 22 the administration removed the last of the Trump revisions.

Maybe it we can find something like rare pink spotted cockroaches in the critical habitats of San Francisco, New York City and Washington, D.C., businesses and offices we can make Democrats cognizant of the need to restore the prior administration’s regulatory revisions.

Welcome Back, Carter. Nixon, Too

It's almost a cliché at this point to mention this similarities between Joe Biden and Jimmy Carter. Not that that's stopped us, nor will it when the observation is accurate. But it is worth pointing out that the president isn't the only elected official who seems hell bent on recreating America's most disastrous decade since the close of the Second World War, that is, the 1970s.

The House's Democratic majority overcame some internal opposition to pass legislation on [May 19] addressing high gas prices by cracking down on possible price gouging from oil companies. The bill was approved along party lines in a vote of 217-207. Four Democrats -- Texas' Lizzie Fletcher, Jared Golden of Maine, Stephanie Murphy of Florida and Kathleen Rice of New York -- joined all Republicans in the chamber in voting against the legislation.

The Consumer Fuel Price Gouging Prevention Act, introduced by Reps. Kim Schrier, D-Wash., and Katie Porter, D-Calif., would give the president the authority to issue an energy emergency proclamation that would make it unlawful for companies to increase fuel prices to "unconscionably excessive" levels.

"The problem is Big Oil is keeping supply artificially low so prices and profits stay high. Now I think that when the market is broken, that's when Congress has to step in to protect American consumers," Rep. Frank Pallone, D-N.J., the chair of the House Energy and Commerce Committee, said in a hearing on Monday. "And that's what this bill does: It empowers the FTC to go after the gougers and empowers the agency to effectively monitor and report on market manipulation."

If you're old enough to have watched Rhoda or owned a record by Bread, this move might sound familiar to you. That's because the Nixon administration introduced price controls on gasoline and other consumer goods in the early '70s, while regulations grew up to strangle the expansion of the oil and gas industry throughout the decade. It was a spectacular failure, as anyone with any grasp on basic economics could have predicted. That's why one of the most recognizable images of the decade -- right up there with with the Bee Gees and John Travolta on the Saturday Night Fever soundtrack -- is motorists lined up for miles waiting for gasoline.

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The president of the United States is nearly 80 years old, the speaker of the House is 82, as is the House majority leader, while the Senate majority leader is a comparatively sprightly 71. They were all adults in the 1970s. Indeed, they were all working in politics at the time. You'd think they would remember what a disaster it all was. Isn't the purported advantage of a gerontocracy that the agèd rulers would be able to recall the mistakes of the past and, more importantly, how to avoid repeating them? Perhaps President Biden isn't the only powerful person in a state of cognitive decline.

GOP Asks the Supes to Bring the EPA to Heel

It's about time:

The Supreme Court on Monday considered whether an Obama administration regulation to regulate carbon emissions from existing power plants gives the Environmental Protection Agency such authority. Coal companies and several Republican states, led by West Virginia, want to limit the Clean Power Plan from 2015 that never took effect due to a volley of lawsuits. If the Supreme Court were to rule against the EPA, the move would restrict the agency's ability to control climate-warming carbon emissions based on health, workplace safety and other conditions.

So what's the fuss all about?

During over two hours of oral arguments, the justices focused on how to interpret Section 111 of the Clean Air Act, the statutory source of the federal government's authority to regulate emissions from power plants. The states and coal companies prefer a narrower reading adopted by the Trump administration. That interpreted Section 111 as only allowing requirements at individual plants rather than regulating the industry, as the Environmental Protection Agency intended during the Obama administration by offering power plants credits for generating power from sources that emit less carbon dioxide than coal.

Many of these troublesome agencies date from the Nixon administration, which in 1970 unleashed not only the Environmental Protection Agency but also OSHA on an unsuspecting American public. Unconstitutional from the start, these meddlesome bureaucracies quickly took on their primary task, which was empire-building. As the U.S. has moved from a constitutional republic to a regulatory state, civil liberties have been corroded and diminished, and control has been ceded from the popular will of the people to the entrenched bureaucracy based in Washington, D.C., but with tentacles now firmly grasping all 50 formerly sovereign states.

Such beasts have been a godsend to the lawfare crews of the left, which can sue private companies out of existence for falling afoul of this or that "interpretation" of what Congress half a century ago "meant" in irresponsibly establishing quasi-immortal fiefdoms whose primary task would be self-perpetuation, since the problem it was created to address could, in fact, never be solved.

The current fight is among the Obama, Trump, and Biden administrations and their civil-service drones; as each party succeeds the other in the White House, the rules change and change back, keeping the lawyers happy and the paper-pushers busy but otherwise accomplishing nothing.

The Obama administration had planned to require states to lower carbon dioxide emissions by replacing coal power plants with green energy sources. About 62% of U.S. electricity comes from burning fossil fuels, according to government statistics. According to the EPA, electricity production is the second largest source of greenhouse gas emissions in the United States, behind transportation.

West Virginia Solicitor General Lindsay See told the justices they should overturn a federal appeals court decision saying the EPA could issue such plans. See argued that only Congress has the authority to set energy policy. "This is a major question because it is a new exercise of authority and a transformative result in an area of traditional state authority," See told the justices.

He's right of course. But Congress has long since abdicated its core legislative functions, preferring instead to create monsters such as the EPA in its Laboratory of Democracy and then leave the details to others while the Capitol Hill solons scheme for ever-higher electoral office. Every one of them dreams of being the next Nancy Pelosi or Mitch McConnell. And given that a lifelong hack like Joe Biden now sits in the Oval Office, they can dream, can't they?

Meanwhile, the rest of us suffer. And pay.