Letters from an Ohio Farmer is a blog that discusses current political affairs in light of basic founding principles. The Ohio Farmer’s post “The Lost Art of Legislation” discusses the fact that Congress has transferred its constitutionally granted responsibility for “law making” to the “administrative state.” This results in the demise of two important constitutional principles: the “rule of law” and “equality under the law.” I think Madison would agree that we currently live under an administrative tyranny at the federal level and the Billy Packer’s battle with DENR illustrates administrative tyranny at the state level.
Of immediate interest to the Ohio Farmer are the Constitutional consequences of Obamacare and the current NLRB case that may prevent Boeing from opening a new manufacturing plant in South Carolina. Please read the entire post here.
First, the health care law contains a number of mandates on insurance companies and businesses intended to correct what are widely regarded as abuses of the private marketplace for insurance and health services. Yet the Department of Health and Human Services is handing out “waivers”—exemptions from the letter of the law—like Halloween candy to labor unions, big businesses (McDonald’s), small businesses (boutique restaurants in San Francisco), and several of the large insurance companies who are thought to be part of the problem. The health care law’s waiver process is like telling the traffic police that they get to set a “safe” speed limit, but then allowing them to decide that different motorists get to drive at different speeds. We’re no longer equal under the law when a government administrator can decide who has to obey a law and who doesn’t. Prior to this moment, federal government waivers tended to be applied only to state and local governments in their implementation of federally-funded programs like welfare or highway construction or public education. Now the government is extending waivers to private citizens and their businesses, treating equal people unequally.
The second news item ringing alarm bells is the decision of the National Labor Relations Board (NLRB) ordering the Boeing aircraft company to build its new Dreamliner airplane in Washington state, rather than South Carolina, where Boeing has already spent over $1 billion building a new assembly line for the Dreamliner [see Ohio Farmer Letter, “The Spirit of Checks and Balances”]. The NLRB based its decision on a clause in the Wagner Act that says private companies may not “retaliate” against labor unions, and argues that locating aircraft production in a non-union state amounts to “retaliation” against the unions that have struck Boeing three times in the last decade in Washington state. The “retaliation” clause has never been interpreted this way before; and, in any case, we should be asking why an independent agency—the NLRB—gets to enforce the law, rather than the Justice Department, an executive department politically accountable to the President, working through the ordinary federal court system. The NLRB was set up to provide labor unions a privileged position in our legal order, but it means that any company might be prohibited from moving or expanding from a unionized state to a right-to-work state. It is doubtful Congress meant the statute to be construed this way when it was passed, or that any Congress would consent to such a construction. As a practical matter the Boeing case is likely to be isolated, but that just makes the Boeing precedent all the more troubling, as it reveals our labor law to be arbitrary. And the NLRB is hardly alone in this style of unaccountable government that blurs the separation of powers between the branches. The Environmental Protection Agency operates in a similar fashion, and the new financial regulations of the Dodd-Frank law passed in response to the banking crisis of 2008 will also be determined by the administrative organs of government…..
