Kimberley Strassel Discusses Trump’s “Federalist Revival”

KIMBERLEY STRASSEL discusses the fight for Federalism and how Scott Pruitt will help in this endeavor:

Donald Trump had barely finished announcing his pick to lead the Environmental Protection Agency before the left started listing its million reasons why Oklahoma Attorney General Scott Pruitt was the worst nomination in the history of the planet: He’s an untrained anti-environmentalist. He’s a polluter. He’s a fossil-fuel fanatic, a lobbyist-lover, a climate crazy.

Mr. Pruitt is not any of those things. Here’s what he in fact is, and the real reason the left is frustrated: He’s a constitutional scholar, a federalist (and a lawyer). And for those reasons he is a sublime choice to knock down the biggest conceit of the Obama era—arrogant, overweening (and illegal) Washington rule.

We’ve lived so many years under the Obama reign that many Americans forget we are a federal republic, composed of 50 states. There isn’t a major statute on the books that doesn’t recognize this reality and acknowledge that the states are partners with—and often superior to—the federal government. That is absolutely the case with major environmental statues, from the Clean Air Act to the Clean Water Act to the Safe Drinking Water Act.

Congress specifically understood in crafting each of these laws that one-size-fits all solutions were detrimental to the environment. Federal bodies like the Environmental Protection Agency traditionally and properly existed to set minimum standards, provide technical support, and engage in occasional enforcement. States, with their unique knowledge of local problems, economies and concerns, were free to innovate their own solutions.

But President Obama never held much with laws, because he failed at making them. After his first two years in office, he never could convince the Congress to pass another signature initiative. His response—and the enduring theme of his presidency—was therefore to ignore Congress and statutes, go around the partnership framework, and give his agencies authority to dictate policy from Washington. The states were demoted from partners to indentured servants. So too were any rival federal agencies that got in the EPA’s way. Example: The EPA’s pre-emptive veto of Alaska’s proposed Pebble Mine, in which it usurped Army Corps of Engineers authority.

One revealing illustration from EPA world. Under the Clean Air Act, states are allowed to craft their own implementation plans. If the EPA disapproves of a state plan, it is empowered to impose a federal one—one of the most aggressive actions the agency can take against a state, since it is the equivalent of a seizure of authority. In the entirety of the presidencies of George H.W. Bush,Bill Clinton and George W. Bush, the EPA imposed five federal implementation plans on states. By last count, the Obama administration has imposed at least 56.

Much of Mr. Pruitt’s tenure as Oklahoma’s AG was about trying to stuff federal agencies back into their legal boxes. Most of the press either never understood this, or never wanted to. When the media wrote about state lawsuits against ObamaCare or the Clean Power Plan or the Water of the United States rule, the suggestion usually was that this litigation was ideologically motivated, and a naked attempt to do what a Republican Congress could not—tank the president’s agenda.

The basis of nearly every one of these lawsuits was in fact violations of states’ constitutional and statutory rights—and it is why so many of the cases were successful. It was all a valiant attempt to force the federal government to follow the law. And it has been a singular Pruitt pursuit.

[….]

It doesn’t need a climate warrior, as Congress has never passed a climate law, and so the EPA has no mandate to meddle there. What it needs is a lawyer, one with the knowledge of how to cut the agency back to its proper role—restoring not just an appropriate legal partnership with the states, but also with other federal bodies. One who reminds agency staff that the EPA was not created to oppose growth and development.

If Mr. Pruitt does this successfully, and on the way crushes the current president’s legacy, Mr. Obama will have only himself to blame. His abuse of federal power helped elect a new generation of state attorneys general and Washington Republicans passionately devoted to a states’ rights agenda. They’ll be advising Mr. Trump not just on environmental policy, but on health care, labor policy, entitlement reform. Say hello to the federalist revival.

 

 

 

 

Again, Bills (taxes) Must Originate in the House, Obamacare Originated in the Senate

Not constitutional, ergo, not law — from a previous post:

c. Since this is a direct tax, via the Court, this has another Constitutional ground to lose on or for Congress to overturn on. That is this:

Article 1, Section 3, Paragraph 3 of the Constitution [Apportionment of Representatives; Direct Taxes]: Representatives and direct taxes shall be apportioned among the several states which may be included within this union…

Article 1, Section 7 of the Constitution, Paragraph 1 [Bills of Revenue Originate in House]: All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.

d. BECAUSE it is a tax, reconciliation can be used to repeal the law.

Now Breitbart

One of the big Democrat talking points about ObamaCare is to bleat that it’s “constitutional,” blessed by the Supreme Court, and is the “settled law of the land.” They never explain how this is supposed to intimidate the nominally free people of the Republican from changing or repealing it – presumably it is meant to be taken as the first law in history that must be obeyed without question, forever, more powerful and permanent than the Constitution itself

But it’s not true anyway.  Andrew McCarthy at National Review reminds us that, contrary to Democrat rhetoric, ObamaCare was not held constitutional by the Supreme Court.  Sorry, lefties, but it just wasn’t.  The bill as written would have been struck down.  Supreme Court Justice John Roberts rewrote the bill on the fly to make it constitutional.  

One of the ideas we occasionally hear floated to make the ruling class suffer the full pain of the law they inflicted upon the rest of us is to pass a bill requiring the enforcement of ObamaCare precisely as it was passed, since it has never legally been amended.  An orthodontist in Florida teamed up with Judicial Watch to file a lawsuit along these lines recently, with an eye to countering President Obama’s flagrantly illegal rescheduling of the employer mandate.  If such a suit was successful, it should logically lead to the Supreme Court striking down ObamaCare, since it was not constitutional as passed by Congress and signed by the President.

But the Affordable Care Act should have died the moment it left the Supreme Court anyway.  As McCarthy points out, the Roberts-rewritten law might have been (barely) held constitutional, at the cost of making Obama a shameless liar during all the years he claimed it wasn’t a tax… but that also made the ACA illegal, because it’s a tax bill, and those must originate in the House, while ObamaCare originated in the Senate.

…read more…

Now the National Review:

…We now know Obamacare was tax legislation. Consequently, it was undeniably a “bill for raising revenue,” for which the Constitution mandates compliance with the Origination Clause (Art. I, Sec. 7). The Clause requires that tax bills must originate in the House of Representatives. Obamacare did not.

[….]

…Obamacare originated in the Senate.

It was introduced in Congress in 2009 by Senate majority leader Harry Reid, who called it the “Senate health care bill” (a description still touted long afterwards on Reid’s website). Employing the chicanery that marked the legislation through and through, the Democrat-controlled Senate turned its 3,000-page mega-proposal into a Senate amendment. The Senate attached its amendment to a nondescript, uncontroversial House bill (the “Service Members Home Ownership Tax Act of 2009”) that had unanimously passed (416–0) in the lower chamber.

Thanks to the Supreme Court, it is now undeniable that Obamacare was tax legislation. It was also, by its own proclamation, a bill for raising revenue. Democrats maintained that the Senate proposal would reduce the federal budget deficit by $130 billion. More to the point, the bill contained 17 explicit “Revenue Provisions” — none of which was remotely related to the House bill to which the Senate proposal was attached.

Therefore, Obamacare is revenue-raising tax legislation, originated in the Senate in violation of the Constitution.

…read more…