During the first year of the Obama administration, conservatives have directed much of their fire on the major legislation the president is pushing through Congress. This concern is justifiable, as Democrats are moving bills aimed at taking over the nation's health care system, creating a national energy tax to limit carbon emissions, and enabling unions to rapidly add members by denying workers a secret ballot on unionization.
But as critical as it is for the right to expose the damaging consequences of such major legislation, conservatives must not lose sight of the fact that there is more than one way for the president to impose his vision on the country. Each day, throughout the executive branch, presidentially appointed bureaucrats who remain unknown to most Americans make decisions that have consequences for the entire nation. And in President Obama's case, his appointments serve as a plan B, allowing him to realize the parts of his agenda that he is unable to enact through the legislative process. In some instances, Obama's more radical appointees have withdrawn or resigned once their extreme views have come to light. One prominent example is Van Jones, who was forced to resign as the White House "green jobs czar" after the revelations that he once described himself as a communist and that he signed a petition of a group that raised questions about whether the Sept. 11 attacks were an inside job. Yet many other troubling Obama appointees have escaped major scrutiny. Some have had their nominations stalled in the Senate, while others are already hard at work implementing liberal policies.
"This administration is moving very quickly on the appointment side of things to put people in place that, because of the regulation state that has built up over the past 40 years, will have within their realm the power to affect every area of this country without our elected representatives having so much of a say in it," Bill Wilson, president of Americans for Limited Government, told TAS. Wilson, whose group has been closely tracking Obama's appointments, specifically highlighted labor and environmental policy as among the most worrisome areas.
Obama gave the first indication that he planned on handsomely rewarding unions for the role they played in getting him elected when he named California Rep. Hilda Solis to be secretary of labor. Solis was first elected to Congress in 2000 as a union candidate, and as a member of the House of Representatives from 2001 until her appointment this year, she racked up perfect or near perfect vote ratings from every major union. She also served as treasurer of American Rights at Work, a pro-labor group that maintained the "Shame on Elaine" attack website aimed at her predecessor, Elaine Chao. And shortly after being confirmed, she went to work reversing many of Chao's policies to the benefit of her union allies.
While liberals look at the agency as an entity that only regulates businesses, under the leadership of Secretary Chao from 2001 through January 2009, the Labor Department also took its responsibility of regulating unions seriously. Chao beefed up the Office of Labor Management Standards (OLMS), which polices unions, and during this time, the division's actions led to 929 convictions of corrupt union officials and to the recovery of more than $93 million on behalf of union members. Yet shortly after Solis was sworn in as the new secretary of labor, the Obama administration announced its intention to slash the OLMS budget by more than 9 percent, while at the same time boosting the budgets of the divisions tasked with regulating businesses. As a result, corrupt union bosses will have a much freer hand with which to bilk their members.
BUT THIS IS JUST a small part of Obama's efforts to use the Department of Labor to pay back unions. He also tapped two women with close ties to unions -- Patricia Smith and Lorelei Boylan -- for other top positions within the department. While working for the New York State Department of Labor, Smith and Boylan spearheaded a controversial program in which the state partners with unions and other liberal community groups to police workplaces.
"Just as no one wants to live in an area riddled with crime, nobody wants to live in a neighborhood where workers are paid sweatshop wages," Smith said when announcing the program in January 2009. "New York Wage Watch will increase labor law compliance by giving regular people a formal role in creating lawful workplaces statewide, and thereby improving the quality of life in their communities. It will also help law-abiding employers, who struggle to compete with businesses that undercut them by violating the law."
But in practice empowering "regular people" actually means that the government is deputizing unions to help police workplaces.
"New York Wage Watch is labor law enforcement at the purest, most grassroots level," boasted Stuart Appelbaum, president of the Retail, Wholesale and Department Store Union, in the press release announcing the program.
Boylan, who runs the initiative, was nominated by Obama to head the U.S. Department of Labor's Wage and Hour division, but her nomination was withdrawn in October. Smith, who actually devised the Wage Watch program in New York, was appointed by Obama to be solicitor of labor. Sen. Mike Enzi (R-WY) placed her nomination on hold, meaning that Democrats will need 60 votes to move it forward. Her status was still in limbo as of this writing.
Even more worrisome for the American business community is President Obama's attempt to pack the National Labor Relations Board with union lawyers who would make rulings that would achieve many of the same results as labor-friendly legislation. The most obvious example of such legislation is the Orwellian-named Employee Free Choice Act (EFCA). The bill's two major provisions would deny workers a secret ballot in voting on whether to unionize, and force employers into binding arbitration proceedings when negotiating contracts with unions. To this date, Republicans have succeeded in preventing EFCA from becoming law, but the bill's legislative fate may not even matter if Obama gets several controversial nominees to the labor panel confirmed.
Currently, there are only two members on the five-member NRLB -- one is a Republican and the other a Democrat. To tilt the balance of the board, Obama tapped two union lawyers (Craig Becker and Mark Pearce). He also appointed a Republican Senate staffer, Brian E. Hayes, in hopes it would dissuade Republican senators from blocking the other two.
Becker, a longtime labor activist, is the associate general counsel of the Service Employees International Union (SEIU). The left-wing magazine In These Times wrote that he "helped lay the intellectual foundation for the Employee Free Choice Act." More relevantly, he wrote a law review article arguing that the major aims of EFCA could be achieved through rulings by the regulatory body to which Obama has appointed him.
"This is somebody who has announced ahead of time that he thinks he can do much of the left's agenda through the regulatory process," Grover Norquist, president of Americans for Tax Reform, said in an interview with TAS. "It's one thing for him to say he intends to do something, but when you look at it, where are the guardrails? Who says he can't? Who slaps him down?"
Norquist said that if Becker were confirmed, all that would need to happen would be for somebody to file a complaint arguing that the unionization process at a particular business was unfair, and the union-friendly board could decide in the person's favor and set rules for unionization and collective bargaining along the lines of what is prescribed by EFCA.
"The left did for labor issues what the right wanted to do for prayer in school and that's to take the normal courts out of it," Norquist said. "Who do you appeal to then? Is the Congress going to overrule [Becker] when he makes those decisions? No. Is the White House going to overrule him? No. The courts don't get to play."
Sen. John McCain (R-AZ) placed a hold on Becker's nomination in October, and his confirmation was still pending as of this writing.
ENVIRONMENTAL AND ENERGY POLICY are two other areas in which the Obama administration is seeking to use the existing regulatory apparatus to achieve what they may not be able to through congressional action. In June, the House of Representatives passed "cap and trade" legislation aimed at combating global warming by limiting carbon emissions, as eight Republicans crossed over to make up for the 44 Democrats who voted against it. The legislation is now bogged down in the Senate, where it faces a tougher route to passage. But regardless of what happens in Congress, the administration is already laying the groundwork to limit carbon emissions.
Lisa Jackson, the administrator of the Environmental Protection Agency, made these intentions clear in her opening memo to employees in January 2009. "EPA will stand ready to help Congress craft strong, science-based climate legislation that fulfills the vision of the President," she wrote, adding, "As Congress does its work, we will move ahead to comply with the Supreme Court's decision recognizing EPA's obligation to address climate change under the Clean Air Act."
The Supreme Court decision Jackson referred to is Massachusetts v. EPA. Decided in 2007, the Court ruled that, pending a finding of "endangerment," the EPA was required to regulate greenhouse gases in new vehicles. Obama appointed the lead attorney for the plaintiffs in the suit, Lisa Heinzerling, to be senior policy counsel on climate change at the EPA, a position that does not require confirmation. In her speeches and academic writings, Heinzerling has advocated an unabashedly activist role for the federal government in regulating carbon emissions.
Heinzerling is a leading critic of employing economic cost-benefit analysis to justify environmental regulations, and she addressed the subject in a book she co-authored in 2004, titled Priceless: On Knowing the Price of Everything and the Value of Nothing. In a May 2008 article for the environmentalist news and commentary site Grist, Heinzerling explained why cost-benefit analysis was an inadequate way of responding to environmental crisis.
"Cost-benefit analysis is a deeply flawed device that has never been the environmentalist's friend," Heinzerling wrote. "It impedes rather than aids understanding of the concrete consequences of regulations. It would behoove the next president -- and all who value environmental protection -- to do more than fiddle around the margins of old debates, and to question whether a decision-making framework that can stare environmental catastrophe in the face and declare it ‘efficient' is really the best we can do."
Heinzerling has gone so far as to argue that since global warming kills people, a failure to address it is tantamount to somebody not acting on prior knowledge that a homicide is going to take place.
"Knowledge that death and suffering will result from our actions leads uncontroversially to a moral obligation to change our behavior," Heinzerling wrote in a 2008 article for the Georgetown Law Journal. "In the United States, knowing killing is condemned in the criminal laws of all 50 states, in modern regulatory laws at the federal level, and in civil jury awards in tort cases. These laws embody a moral commitment against knowing killing that, in traditional criminal contexts, is uncontroversial. It should be no more controversial when it occurs on a global scale."
More specifically, even though the Massachusetts v. EPA decision involved emissions from new cars, Heinzerling made it clear in March 2008 testimony before the House Select Committee on Energy Independence and Global Warming that her view is that the ruling applies broadly to all carbon emissions.
"There is little doubt that many categories of stationary sources -- including, for example, power plants -- emit greenhouse gases and thus ‘cause' air pollution, which the Administrator has concluded endangers public health and welfare," Heinzerling said. "Under section 111, the Administrator ‘shall' include these sources on a list and then ‘shall' regulate them."
ANOTHER EPA APPOINTEE, Stephen Owens, who has already been confirmed as the assistant administrator for toxic substances, took an expansive view of regulatory authority when serving as director of the Arizona Department of Environmental Quality from 2003 to 2009. In an April 2008 decision, Judge Edward Burke of Arizona's Maricopa County Superior Court ruled that Owens's agency "exceeded its legal authority when it sought to set acceptable emission levels for more than six dozen chemicals," according to a report by the Arizona Daily Star. "Burke said state lawmakers never gave the agency or DEQ's director, Steve Owens, the power to do any of that. In fact, Burke said he reads the state statutes to actually prohibit the rules."
Owens has also been active on the global warming front, and his ties with Al Gore date back to 1980, when as student at Vanderbilt Law School he worked for the then congressman. "I wound up spending the summer working on the Superfund legislation that Al Gore was a primary sponsor of," Owens said in an interview with the Washington Post's Who Runs Gov website. "It was one of the best jobs I ever had." After finishing law school, he became counsel to the House Science and Technology Investigations and Oversight subcommittee, which Gore chaired.
When in Arizona, Owens co-chaired the Western Climate Initiative, a partnership of several West Coast states and Canadian provinces aimed at reducing greenhouse gas emissions by 15 percent by 2020. "People talk about sacrifices, they talk about impact, they talk about people paying more," Owens said in an interview about the initiative with the Cronkite News Service, a project of Arizona State University. "You haven't seen significant costs until you see what might happen 40 or 50 years from now if we don't do something now to control greenhouse gas emissions."
Kenneth Green, an environmental scholar at the American Enterprise Institute, said of the Obama administration EPA that "They don't have the ultimate authority to implement cap and trade themselves." Instead, "they'll implement regulations and efficiency standards all over the place."
Provisions of the Clean Air Act, Green explained in an interview with TAS, "call for any available polluter to institute best available control technology, which there isn't very much of for carbon dioxide emissions. So it's basically going to require them to use the least energy possible, which means energy efficiency devices." Because the emission limits under the Act are so low, he said, such regulations would have a tremendous scope, affecting buildings as small as shopping centers and high schools. Should the Obama administration go this route, he said, it would likely spend years in court fighting lawsuits challenging the extension of the Supreme Court ruling beyond vehicles.
AS THE OBAMA ADMINISTRATION seeks to use the EPA to limit carbon emissions, it's also moving ahead with plans on the alternative energy front. One of the key players in this effort is Cathy Zoi, who has been confirmed as the assistant secretary for Energy Efficiency and Renewable Energy (EERE). Zoi previously served as the CEO of Gore's Alliance for Climate Protection, which called for having America derive 100 percent of its electricity from renewable sources within 10 years. "It is an ambitious but attainable goal," Zoi wrote on the Huffington Post website in August 2008. "American workers, businesses and families are up to it."
She continued: "The science, the economic pressures and our national security concerns demand swift, concerted action. The best climate scientists tell us we must make rapid progress to turn the corner on global carbon emissions or the ecological consequences will be irreversible."
Green dismissed the idea as implausible. "That's a completely hopeless endeavor," he explained. "It's not possible to replace our energy infrastructure with renewable energy in 10 years. It is physically not possible. You could not build that many solar plants and that many windmills, and the transmission to make sure the lights actually stay on when the wind isn't blowing, in 10 years. That is a complete and utter fantasy."
Climate Progress, an arm of the liberal Center for American Progress, celebrated Zoi's confirmation to the EERE post on its blog. "What does EERE do?" Climate Progress beamed. "You could spend hours on their website...exploring everything they are into. Of the 12 to 14 most plausible wedges the world needs to stabilize at 350 to 450 ppm -- the full global warming solution -- EERE is the principal federal agency for working with businesses to develop and deploy the technology for 11 of them!"
Another person to watch is Jon Wellinghoff, who has been confirmed as chairman of the Federal Energy Regulatory Commission, which regulates the inter-state transmission of electricity, natural gas, and oil. In April, the New York Times reported that Wellinghoff declared that there would no longer be a need for any new nuclear or coal plants. "We may not need any, ever," the Times quoted him as saying at a U.S. Energy Association forum.
The article on his remarks noted that "The FERC chairman's comments go beyond those of other Obama administration officials, who have strongly endorsed greater efficiency and renewables deployment but also say nuclear and fossil energies will continue playing a major role." It continued, "Wellinghoff's view also goes beyond the consensus outlook in the electric power industry about future sources of electricity."
The administration's energy and environmental policy is being coordinated by Carol Browner, who was named director of the newly created White House Office of Energy and Climate Change Policy. Also described as an "energy czar" and "global warming" czar, Browner served as the EPA administrator during the Clinton administration, and had been on the board of the Center for American Progress and Gore's Alliance for Climate Protection.
The Washington Times reported that Browner was listed as one of the leaders of Socialist International's Commission for a Sustainable World Society, a group that calls on richer countries to sacrifice economic growth to address global warming.
WHILE LABOR, ENVIRONMENTAL, and energy policy are among the more significant areas in which the Obama administration intends to use the executive branch to implement a liberal agenda, they are far from the only areas.Mark Lloyd, who was appointed to be the associate general counsel and chief diversity officer of the Federal Communications Commission, has a history of lamenting conservative dominance of radio. Though he has stopped short of calling for the reinstitution of the Fairness Doctrine, a 2007 report he co-authored as a senior fellow at the Center for American Progress, titled The Structural Imbalance of Talk Radio, advocated measures that would effectively mean government regulation of talk radio.
One of the ways the report proposed to "ensure greater accountability" over programming is to have the FCC "require radio broadcast licensees to regularly show that they are operating on behalf of the public interest and provide public documentation and viewing of how they are meeting these obligations." Of course, under Lloyd's proposal, the government would determine what programming qualifies as being in the "public interest," and have the authority to tax those stations that don't abide by those standards.
"A fee based on a sliding scale (1 percent for small markets, 5 percent for the largest markets) would be distributed directly to the Corporation for Public Broadcasting with clear mandates to support local news and public affairs programming and to cover controversial and political issues in a fair and balanced manner," the report said. "We estimate that such a fee would net between $100 million and $250 million and would not overly burden commercial radio broadcasters."
Lloyd has also gone on record making some disturbing comments about Hugo Chavez's rise to power in Venezuela, which were unearthed by Glenn Beck. "In Venezuela, with Chavez, is really an incredible revolution -- a democratic revolution," Lloyd said at the 2008 National Conference for Media Reform. "To begin to put in place things that are going to have an impact on the people of Venezuela." He continued, "The property owners and the folks who then controlled the media in Venezuela rebelled -- worked, frankly, with folks here in the U.S. government -- worked to oust him. But he came back with another revolution, and then Chavez began to take very seriously the media in his country."
OVER AT THE DEPARTMENT of Housing and Urban Development, Obama appointed John Trasviña to serve as assistant secretary for Fair Housing and Equal Opportunity. Trasviña was actively involved on the immigration front as president of the Mexican American Legal Defense and Educational Fund as well as through his work on the board of La Raza Lawyers Association. During his Senate confirmation hearing, he made it clear that he defined housing discrimination in broad terms, and would act aggressively to combat it.
"We have many weapons available to us to eradicate housing bias from our society," he said. "All must be used in a coordinated fashion to be effective. The mission goes beyond access to an apartment or house to the lending decisions and the ability to remain in one's home. If confirmed, I will work vigorously to guard against scams that prey upon people's race or ethnicity to thwart their well-laid plans for homeownership or block access to assistance for the same reasons."
At the Department of Transportation, Obama tapped Roy Kienitz as an undersecretary for policy. Kienitz has been an executive director of the Surface Transportation Policy Project (STPP), a group that describes itself on its website as a "diverse, nationwide coalition working to ensure safer communities and smarter transportation choices that enhance the economy, improve public health, promote social equity, and protect the environment."
The group is particularly critical of society built around cars. "The transportation system in communities affects health and safety, often engineering out opportunities for physical activity while increasing exposure to hazardous high-speed traffic and automobile pollution," the group argues on its website. "Car-oriented design and lack of transportation choice forces car-dependency, increasing traffic congestion and the amount of sedentary time people spend behind the wheel. The health of children and people of color is disproportionately affected." The site goes on to lament that "transportation funding is most often spent making streets faster for cars, rather than safer for children."
While Kienitz served as secretary of planning in the state of Maryland, he was fond of using the power of government to promote "smart growth," and prevent sprawl. "We're getting involved to assure that citizens of the state get the quality of life benefits that Smart Growth has to offer," Kienitz said in an August 2001 statement announcing several initiatives, including blocking a Wal-Mart in Kent County. "We will use this authority in a balanced way, to oppose major drivers of sprawl, to encourage modifications that can improve projects with Smart Growth potential, and to support Smart Growth developments."
HOW MUCH THE OBAMA ADMINISTRATION will eventually accomplish through the regulatory process is an open question, but even signaling a willingness to move forward on regulatory fronts is another way of compelling Congress to act.
"The overall administration strategy is to use the EPA threat to bludgeon Congress into passing the cap and trade scheme," AEI's Green said regarding environmental regulation.
Norquist made a similar point. "The EPA rules we're going to regulate all carbon emissions and the Chamber of Congress begs for a law that taxes carbon, because it's less destructive than the EPA," he said. "That's one way to move the left's agenda forward. The executive branch puts out some crazed decision, and Congress says, ‘We'll stop that crazed decision, oh, and by the way, we'll take two of your fingers instead of four.'"
The biggest ally that the Obama administration has in pursuing its agenda through the executive branch is simply that a lot of people don't pay as much attention to the boring day-to-day regulatory decisions the federal government makes. If conservatives have any chance of slowing the progress of the government leviathan, the first step is to shine the light on it.