The Executive Branch Must Act Within Its Authority

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Published in The Post Newspaper August 10, 2022 The last session of the United States Supreme Court [SCOTUS] was an interesting one. But first an observation: it would seem that as goes Justice Kavanaugh, so goes the court.  The three liberal justices are more-often-than-not joined by Chief Justice Roberts making many decisions a 4-4 tie with Kavanaugh being the deciding vote.  Second, there is a discernable trend in the court, one which the “Administrative State” should pay attention to – writing regulations which aren’t well rooted in Congressionally-enacted statutes. ** It appears this court believes, rightly we might add, in two fundamental principles: Federalism where things not directly granted to the federal Government by the Constitution belong to the state legislatures and that federal agencies must stay within their statutory limits. Some examples: Federalism: The leftwing and the media have been obsessed with the Dobbs v. Jackson case -- which overturned the Warren court’s Roe v. Wade decision – claiming that abortions will no longer be legal in the U.S.  What actually happened wasn’t the outlawing of abortions but, instead, telling individual states they have the authority to determine whether abortions are allowable within their jurisdiction and under what circumstances.   Some states (like California and New York) will continue to allow abortions and, in some states, even allow them up through the ninth month of a pregnancy.  Nothing in the SCOTUS decision prohibits a woman from traveling to another state to obtain an abortion. To this court, the Constitution is neither pro-life nor pro-choice, therefore they contend this decision must be left to the people and their state’s elected representatives.    In another case the court said public employees couldn’t be prohibited from praying -- in this case after football games on the 50-yard line -- saying it’s a clear abridgement of the coach’s first amendment rights.  Interestingly, the wording of the opinion may have opened the door to other expressions of religious freedom in public forums.  The court also struck down the New York concealed carry restrictions saying they clearly restrict the second amendment rights of law-abiding citizens. Examples: Regulatory Overreach: In several other cases the court told the Federal Government’s “Administrative state” to stay within its authority.    The court told… The U.S. Environmental Protection Agency (EPA) that the Clean Air Act does not give it widespread power to arbitrarily set greenhouse gas emissions from coal fired plants with claims of climate temperature change affects.  The CDC it didn’t have the power to halt eviction notices because of the COVID pandemic. OSHA it doesn’t have the authority to mandate COIVD vaccinations for private companies. In all these cases the court said there was no clear reasoning from the original authorizing legislation which would empower unelected federal agencies to take such actions. This is a far reaching and welcome view of U.S. law.  Regulatory agencies, and woke political activists within them, need to pay attention; the spotlight is on them. This court is a breath of fresh air.  Finally, those who have been unable to get their wacky legislative proposals enacted are being held in check. ** I, Bill, used to work for the Commerce Department's Bureau of Industry and Security (BIS). This agency has the responsibility for controlling U.S. exports for national security, foreign policy, and short supply reasons and gets its authority from the Export Administration Act. It is this agency that maintains some of the restrictions on exports to North Korea and Iran. BIS also has enforcement authority and special agents with police powers. When I was working there (1973-2004) we were always very careful to write regulations that were well rooted in our authorizing legislation. Not all governmental agencies overreach their authority but when the political agenda of those in power takes over anything can happen. This is the reason why Congress needs to maintain strict oversight on the activities of the "Administrative State."
	About the Authors and Columnists 2022 Bill Sargent and Mark Mansius have written over 250 guest columns since 2014 and continue to do so. Bill lives in Galveston, Texas and Mark in St. Georges, Utah
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