Contributor Post Created with Sketch. This Week in Federal Regulatory Takeover

 

“As the presidential primaries dominate the news, under the radar the Obama administration continues its unilateral assault on the economy and civil society. Consider the news from just this week.” So I wrote last month. Is it poor form to start a new post with exactly the same opening?

1. Yesterday, the Food and Drug Administration announced that they will extend tobacco regulations to e-cigarettes:

“This action is a milestone in consumer protection — going forward, the FDA will be able to review new tobacco products not yet on the market, help prevent misleading claims by tobacco product manufacturers, evaluate the ingredients of tobacco products and how they are made, and communicate the potential risks of tobacco products,” the agency said in announcing the extension of its authority.

The usual constellation of leftist interest groups is thrilled, citing consumer protection and child safety. However, the new requirements for FDA approval promise to devastate the industry:

The most onerous requirement, say e-cigarette and e-liquid manufacturers: a retroactive premarket approval process for all e-cigarette products, from e-liquids to vaporizers. Companies must provide a detailed listing of each product’s ingredients as well as extensive research findings on the impact of their products on the public’s health, which will cost at least $2 million per product to satisfy, says Cynthia Cabrera, executive director of the Smoke Free Alternatives Trade Association.

This requirement will be straightforward for Big Tobacco to meet. Smaller companies, on the other hand, will have a harder time:

Shaun Copper has owned and operated Workshop Vapor Company in Colorado Springs for about a year and a half, but he and many other shop owners are worried about their future.

“There are estimates that 99 percent of the industry will be done in 2 years,” Copper said….

“At my shop, I have products that I bring in from other vendors. I also have my own that I make, and so not only do I have to hope that my vendors have the means to go through these pre-market approvals, I have to look at them as well,” Copper said.

But just one application could cost hundreds of thousands of dollars.

“You do the math and go how could anybody survive that?” Copper said.

As a result, tobacco smokers will lose a tool for smoking cessation, and many former smokers are expected to revert to tobacco.

The rule goes into effect in 90 days. Left unaddressed are (a) how a product without any actual tobacco is considered a “tobacco product”; and (b) where an agency gets the authority to unilaterally expand its own Congressional mandate.

2. On Wednesday, the Department of Justice inserted itself into state legislation, to address the civil rights issue of our time: Transgender bathrooms.

The U.S. Justice Department said Wednesday that a North Carolina law limiting protections to LGBT people violates federal civil rights laws and can’t be enforced….

In a letter to Gov. Pat McCrory, the department put the state on notice that federal officials view the state law as violating federal Civil Rights Act protections barring workplace discrimination based on sex. Provisions of the state law directed at transgender state employees violate their anti-discrimination protections, the letter said….

The Justice Department’s letter said the law also violates Title IX of the Civil Rights Act, which bars discrimination in education based on sex. That could lead to North Carolina losing hundreds of millions of dollars in federal school funding.

The DOJ demanded a response by Monday. Although it initially appeared as if the state would not be able to respond in such an abbreviated timeframe (with regard to Federal agencies, response times are, well, asymmetrical), Gov. McCrory now says he anticipates the state will in fact respond in time.

3. On Wednesday, the Fish and Wildlife Service announced a plan to quadruple the number of bald eagles that wind farms can kill annually, for 30 years.

Fish and Wildlife Service Director Dan Ashe said the proposal will “provide a path forward” for maintaining eagle populations while also spurring development of a pollution-free energy source that’s intended to ease global warming, a cornerstone of President Barack Obama’s energy plan.

Ashe said the 162-page proposal would protect eagles and at the same time “help the country reduce its reliance on fossil fuels” such as coal and oil that contribute to global warming.

Where does the agency get its authority from?

Golden and bald eagles are not endangered species but are protected under the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act. The laws prohibit killing, selling or otherwise harming eagles, their nests or eggs without a permit.

The plan is similar to one issued in 2013 and struck down by a Federal judge because the agency failed to follow procedure. It had tried to classify its action as an “administrative change” so as to avoid environmental review.

Meanwhile, as Fish & Wildlife expands permits to facilitate Obama’s pet boondoggle — and new bird killings — it is stingy with permits for Americans who own artifacts with eagle feathers. Even when the eagles in question are long dead, permits for religious expression are not so readily forthcoming.

With regard to the symbolism of the matter — the Obama Administration giving its friends license to slaughter the national bird: No decent novelist would dare use such imagery. It would be too obvious and heavy-handed.

There are 47 comments.

  1. 1
  2. 2
  1. Aaron Miller Member

    Thanks for the info. Now to smash something…

    What is involved in the North Carolina AG response? Can he not simply say, “Screw you, DoJ. We’ll see you in court.”?

    • #1
    • May 6, 2016, at 8:53 AM PST
    • Like
  2. Paul Erickson Member

    Son of Spengler: The DOJ demanded a response by Monday. Although it initially appeared as if the state would not be able to respond in such an abbreviated timeframe (with regard to Federal agencies, response times are, well, asymmetrical), Gov. McCrory now says he anticipates the state will in fact respond in time.

    How long does it take to lift a single digit?

    • #2
    • May 6, 2016, at 8:53 AM PST
    • Like
  3. livingtheLoneStarlife Inactive

    E-cigs don’t use tobacco, do they?

    And yes, the symbolism of the Obama Administration killing the national bird is startling, but fitting.

    • #3
    • May 6, 2016, at 8:55 AM PST
    • Like
  4. tigerlily Member

    Thanks SOS. The Administrative/Regulatory State is so obviously unconstitutional, but there seems to be little or no pushback against it. Items 1 & 3 in your list are just the latest examples of legislating by the Executive. Where is the political accountability for this continual expansion of the State?

    • #4
    • May 6, 2016, at 9:03 AM PST
    • Like
  5. SkipSul Moderator

    The e-cig rule is ironically yet more cronyism to protect the Big Tobacco industry, whose tax revenues are so massive that regulatory capture doesn’t even begin to describe the corruption.

    What you failed to mention is that the FDA is also asserting a similar control over premium cigars.

    • #5
    • May 6, 2016, at 9:11 AM PST
    • Like
  6. iWe Reagan
    iWe

    The Federal Government essentially owns all the cigarette companies – the taxes and regulations are so pervasive. So the government has a vested interest in making sure that people smoke.

    E-Cigs are a threat, since they are a viable way to stop smoking. Therefore, they must be stopped.

    I hate and despite and revile the government.

    • #6
    • May 6, 2016, at 9:21 AM PST
    • Like
  7. Son of Spengler Contributor
    Son of Spengler Post author

    skipsul:The e-cig rule is ironically yet more cronyism to protect the Big Tobacco industry, whose tax revenues are so massive that regulatory capture doesn’t even begin to describe the corruption.

    What you failed to mention is that the FDA is also asserting a similar control over premium cigars.

    You wanted a longer post?

    It is galling. If the issue is underage use, well, you don’t see many children smoking premium cigars. Also not many unsophisticated consumers getting ripped off by buying something they don’t understand. On the plus side, cigars have actual tobacco in them.

    • #7
    • May 6, 2016, at 9:22 AM PST
    • Like
  8. Son of Spengler Contributor
    Son of Spengler Post author

    iWe:The Federal Government essentially owns all the cigarette companies – the taxes and regulations are so pervasive. So the government has a vested interest in making sure that people smoke.

    E-Cigs are a threat, since they are a viable way to stop smoking. Therefore, they must be stopped.

    Perhaps. I think the war on e-cigs is more of a cultural war. They are an aesthetic affront because they look like those evil tobacco cigarettes and people handle them like those evil tobacco cigarettes. The cultural nannies want to stop anything that might make the smoking aesthetic normal and acceptable again.

    • #8
    • May 6, 2016, at 9:25 AM PST
    • Like
  9. Fake John/Jane Galt Coolidge

    Son of Spengler: Meanwhile, as Fish & Wildlife expands permits to facilitate Obama’s pet boondoggle — and new bird killings — it is stingy with permits for Americans who own artifacts with eagle feathers. Even when the eagles in question are long dead, permits for religious expression are not so readily forthcoming.

    Why in the universe would owning an eagle feather be illegal? It is a bloody bird. They have thousands of feathers on them that they drop regularly. Usually about once a year. It is called molting. It is a natural part of their life cycle. Many bird rescues and foundations sell off souvenir feathers as part of fund raising activities. Why would we stop this?

    • #9
    • May 6, 2016, at 10:00 AM PST
    • Like
  10. livingtheLoneStarlife Inactive

    Fake John/Jane Galt:

    Son of Spengler: Meanwhile, as Fish & Wildlife expands permits to facilitate Obama’s pet boondoggle — and new bird killings — it is stingy with permits for Americans who own artifacts with eagle feathers. Even when the eagles in question are long dead, permits for religious expression are not so readily forthcoming.

    Why in the universe would owning an eagle feather be illegal? It is a bloody bird. They have thousands of feathers on them that they drop regularly. Usually about once a year. It is called molting. It is a natural part of their life cycle. Many bird rescues and foundations sell off souvenir feathers as part of fund raising activities. Why would we stop this?

    You’re not implying the left is anti-science, are you?

    ;-)

    • #10
    • May 6, 2016, at 10:07 AM PST
    • Like
  11. MarciN Member

    I couldn’t hold it together long enough to write a post like this one.

    The lunatics truly are in charge of the asylum.

    • #11
    • May 6, 2016, at 10:08 AM PST
    • Like
  12. Son of Spengler Contributor
    Son of Spengler Post author

    MarciN:I couldn’t hold it together long enough to write a post like this one.

    The lunatics truly are in charge of the asylum.

    Marci, you just reminded me of a whole other part of what I wanted to say and forgot to include!

    Ilya Shapiro wrote a great piece in the Federalist about how John Roberts’s deferral to executive power has contributed to the rise of Trump. As Richard Epstein has said in various contexts: The more SCOTUS has avoided the plain text of statutes, and deferred to regulators, the more important the office of POTUS becomes. You can’t constrain regulators through the legislators, or the courts — or for that matter, through the law at all. So if you want to stop this, your only recourse is to get your guy in there as president, and hope he does what you want.

    So all of our attention is focused on the presidential election, and the question of which candidate will look out for the will of the people.

    • #12
    • May 6, 2016, at 10:18 AM PST
    • Like
  13. SkipSul Moderator

    MarciN:I couldn’t hold it together long enough to write a post like this one.

    The lunatics truly are in charge of the asylum.

    Keep in mind the following:

    1. Obama is supremely arrogant.
    2. Obama is a sore loser
    3. Hence he is also a sore winner who spikes the ball and kicks dirt in the faces of all opponents.
    4. This entire series of moves is all ball-spiking. There is no need for any of it, it is all just more “I won, you lost, and I’ll keep kicking you as long as I can”.

    It’s like his contraception mandates, his refusal to enforce laws, his war on coal, etc. He knows it is angering people, which is no small part of why he does it.

    • #13
    • May 6, 2016, at 10:21 AM PST
    • Like
  14. MarciN Member

    Son of Spengler: Ilya Shapiro wrote a great piece in the Federalist about how John Roberts’s deferral to executive power has contributed to the rise of Trump. As Richard Epstein has said in various contexts: The more SCOTUS has avoided the plain text of statutes, and deferred to regulators, the more important the office of POTUS becomes. You can’t constrain regulators through the legislators, or the courts — or for that matter, through the law at all. So if you want to stop this, your only recourse is to get your guy in there as president, and hope he does what you want.

    I have seen this mentioned elsewhere too.

    It is infuriating to think that the people who fought and died in the Revolutionary War to prevent this are not honored by keeping the powers the way they were imagined.

    Did I read somewhere recently, however, that Paul Ryan put a bill out there to reverse this trend? Or was it Ben Sasse?

    I read somewhere too a while back, and I cannot find it again, that John Roberts felt he had to put the Supreme Court’s blessing on ObamaCare because of an inconsistency in the wording in two sections in the Affordable Care Act.

    It was interesting to me because, as an editor, I want a law passed that prohibits bills over 300 pages–a decent length to handle editorially.

    • #14
    • May 6, 2016, at 10:25 AM PST
    • Like
  15. MarciN Member

    skipsul:

    MarciN:I couldn’t hold it together long enough to write a post like this one.

    The lunatics truly are in charge of the asylum.

    Keep in mind the following:

    1. Obama is supremely arrogant.
    2. Obama is a sore loser
    3. Hence he is also a sore winner who spikes the ball and kicks dirt in the faces of all opponents.
    4. This entire series of moves is all ball-spiking. There is no need for any of it, it is all just more “I won, you lost, and I’ll keep kicking you as long as I can”.

    It’s like his contraception mandates, his refusal to enforce laws, his war on coal, etc. He knows it is angering people, which is no small part of why he does it.

    So true. He is one cold fish.

    I want to have a big party when he is out of office finally.

    • #15
    • May 6, 2016, at 10:26 AM PST
    • Like
  16. Son of Spengler Contributor
    Son of Spengler Post author

    Son of Spengler:Ilya Shapiro wrote a great piece in the Federalist about how John Roberts’s deferral to executive power has contributed to the rise of Trump. As Richard Epstein has said in various contexts: The more SCOTUS has avoided the plain text of statutes, and deferred to regulators, the more important the office of POTUS becomes. You can’t constrain regulators through the legislators, or the courts — or for that matter, through the law at all. So if you want to stop this, your only recourse is to get your guy in there as president, and hope he does what you want.

    So all of our attention is focused on the presidential election, and the question of which candidate will look out for the will of the people.

    BTW, here is an excerpt of Shapiro’s article:

    The man’s twistifications drove the constitutionalist Tea Partiers into the arms of the populists—or made it easy for their populist instincts to “trump” their constitutional ones (pun unintended, but fitting). Why bother with the Constitution? Even when you’re right, you lose.

    Indeed, if Kennedy had joined the liberals in their view that there are simply no structural limits on federal power, there would have been disappointment, but it would have been understandable given the conventional Left-Right rubric. But to lose in a wholly extra-legal way was a sucker punch, belying the idea that there’s a difference between law and politics and that the judiciary is an anti-majoritarian check on the excesses of the political branches.

    Roberts essentially told would-be Trumpistas not to bother the courts with important issues, that if you want to beat Obama you have to get your own strongman—complete with pen, phone, and contempt for the Constitution. So they did, bypassing several flavors of constitutional conservative in favor of a populism that knows nothing but “winning.”

    • #16
    • May 6, 2016, at 10:31 AM PST
    • Like
  17. Aaron Miller Member

    Jeb Hensarling and another Congressman have sponsored legislation to restore the Constitutional role of the legislature and place regulators more directly under Congressional authority (requiring a vote in Congress for any change of regulatory law). They addressed this at CPAC. At the time, they were generally ignored by fellow Congressmen.

    There is no path back to limited government. Let it implode so we can start over.

    • #17
    • May 6, 2016, at 10:38 AM PST
    • Like
  18. Miffed White Male Member

    It’s time to burn the whole thing down and start over.

    • #18
    • May 6, 2016, at 10:47 AM PST
    • Like
  19. Fake John/Jane Galt Coolidge

    livingthehighlife:

    Fake John/Jane Galt:

    Son of Spengler: Meanwhile, as Fish & Wildlife expands permits to facilitate Obama’s pet boondoggle — and new bird killings — it is stingy with permits for Americans who own artifacts with eagle feathers. Even when the eagles in question are long dead, permits for religious expression are not so readily forthcoming.

    Why in the universe would owning an eagle feather be illegal? It is a bloody bird. They have thousands of feathers on them that they drop regularly. Usually about once a year. It is called molting. It is a natural part of their life cycle. Many bird rescues and foundations sell off souvenir feathers as part of fund raising activities. Why would we stop this?

    You’re not implying the left is anti-science, are you?

    ;-)

    That would be one way to say it. They definitely do not understand how birds work.

    • #19
    • May 6, 2016, at 10:51 AM PST
    • Like
  20. Son of Spengler Contributor
    Son of Spengler Post author

    Aaron Miller: There is no path back to limited government. Let it implode so we can start over.

    Miffed White Male:It’s time to burn the whole thing down and start over.

    I dunno, guys. There doesn’t seem to be much precedent for liberal democracy arising spontaneously from anarchy.

    • #20
    • May 6, 2016, at 10:52 AM PST
    • Like
  21. Neil Hansen (Klaatu) Inactive

    Son of Spengler: Left unaddressed are (a) how a product without any actual tobacco is considered a “tobacco product”

    We’ve always been at war with Eastasia.

    • #21
    • May 6, 2016, at 10:54 AM PST
    • Like
  22. Miffed White Male Member

    Son of Spengler:

    Aaron Miller: There is no path back to limited government. Let it implode so we can start over.

    Miffed White Male:It’s time to burn the whole thing down and start over.

    I dunno, guys. There doesn’t seem to be much precedent for liberal democracy arising spontaneously from anarchy.

    You’re assuming that what we have now is still a liberal democracy, or that there is a path back to one from our current situation.

    • #22
    • May 6, 2016, at 11:05 AM PST
    • Like
  23. iWe Reagan
    iWe

    My evil plan to drive all those conservative Americans to secede so we can finally give Marxism a real chance is coming to fruition.

    Bwahahahaaaa

    • #23
    • May 6, 2016, at 11:05 AM PST
    • Like
  24. MarciN Member

    iWe:My evil plan to drive all those conservative Americans to secede so we can finally give Marxism a real chance is coming to fruition.

    Bwahahahaaaa

    I’ve thought this for years.

    I want a return of states’ rights and legal preeminence.

    That would be the fastest way to turn this around.

    Where would you rather live: Communist City, Vermont, or Freedom Town, Texas?

    Where will people flourish?

    We don’t have to deconstruct the federal government to get our wish. We just have to stop taking their money and begin living as independent autonomous cities, towns, and states.

    • #24
    • May 6, 2016, at 11:14 AM PST
    • Like
  25. Dave Sussman Contributor

    Fantastic piece SOS. Not much to add to others comments. #FollowTheMoney

    • #25
    • May 6, 2016, at 11:15 AM PST
    • Like
  26. Aaron Miller Member

    Son of Spengler: I dunno, guys. There doesn’t seem to be much precedent for liberal democracy arising spontaneously from anarchy.

    There’s not much precedent for liberal democracy, period. Governments such as ours are still new historically. What’s not new is the human temptation to cling to the security of the status quo at ever greater costs to freedom. Tocqueville anticipated tyranny in America. Democratic governments, like all other systems, are eventually overwhelmed by their inherent flaws.

    I voted for Cruz (a chance at repeals) in the primary election and continue to debate policies on Ricochet. I’ll participate until the end, betting against the odds. But the odds aren’t any better for a miraculous cultural reversal and steady dismantling of unConstitutional powers under a totalitarian government than for reestablishing sanity and justice after a loss of affluence and order. Whatever future we’re racing toward, it won’t be fun.

    • #26
    • May 6, 2016, at 11:25 AM PST
    • Like
  27. livingtheLoneStarlife Inactive

    Son of Spengler:

    Aaron Miller: There is no path back to limited government. Let it implode so we can start over.

    Miffed White Male:It’s time to burn the whole thing down and start over.

    I dunno, guys. There doesn’t seem to be much precedent for liberal democracy arising spontaneously from anarchy.

    There is no coming back or starting over. Like ancient Rome, the collapse of the American experiment will be studied for hundreds of years.

    • #27
    • May 6, 2016, at 11:30 AM PST
    • Like
  28. Aaron Miller Member

    MarciN: We don’t have to deconstruct the federal government to get our wish. We just have to stop taking their money and begin living as independent autonomous cities, towns, and states.

    Only leftist towns are left to autonomy by federal and state governments. See the beautiful hippie town of Fairhope, Alabama, where residents cannot ever truly own property. When you die, your children cannot inherit your land, but rather must repurchase a long-term lease from the city. Want to live there anyway? You must be approved by current residents. Some European friends of mine were willing to endure this nonsense because it all makes sense where they come from.

    Do you think a town of conservative residents could exclude interested parties and live by their own rules like this? Maybe if you convince them you’re some kind of new-age Amish sect.

    • #28
    • May 6, 2016, at 11:37 AM PST
    • Like
  29. I Walton Member

    Is anyone surprised? Does any of the existing regulatory apparatus do more good than harm? Is any of it necessary? Of course it will drive some out of business, that is its purpose. It will lead to new revenues industry consolidation and political contributions. Score another win for the administrative state. Every new regulation creates new interests that will defend it. It grows, rots, destroys, then grows some more. Remember Steve McQueen in the Blob? I think he froze it before killing it.

    • #29
    • May 6, 2016, at 12:02 PM PST
    • Like
  30. Fritz Member

    “Authority? We don’t need no stinkin’ authority.”

    • #30
    • May 6, 2016, at 1:20 PM PST
    • Like
  1. 1
  2. 2