Obama Flexes His New Powers

“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”—James Madison

What’s the common thread between the ObamaCare’s contraception mandates and the $25 billion settlement for banks robo-signing foreclosure documents?  Both reflect new and purposely unchecked executive powers given to the president back when Democrats controlled both houses of Congress.

When the Patient Protection and Affordability Act passed, the administration pooh-poohed the accusation that the national government was taking over sixteen percent of the economy.  They kept repeating that they had not included a single-payer feature, so it must be a free market reform. Similarly, there were vehement denials that the Dodd Frank bill, formally named the Wall Street Reform and Consumer Protection Act, was a takeover of the financial sector.

Most Americans weren’t paying attention. Others naively bought into these disclaimers. Now, however, many are awakening to the fact that something ominous is descending on America. What’s happening is not what we were promised in 2008. Instead of “Change We Can Believe In,” we got a stealth grab for vast new powers that make a travesty of our Constitution.

These bills shift massive power to the president. Both bills gave the executive branch unbridled authority to write regulations that would determine how these laws affect every American’s healthcare and finances.  Both bills created a host of new agencies that for all intents and purposes wield legislative, judicial, and executive authority.  Both bills created agencies controlled by the executive branch with no legislative oversight.  Both bills established dedicated streams of revenue that could not be interfered with by Congress—or anyone else, for that matter.

Americans saw the raw execution of this new power in the mandate that charitable institutions affiliated with a religion must provide employee health insurance offering free contraceptives, including morning-after pills.  The administration has purported to walk-back this haughty mandate, but the fix is a non-fix. If someone believes health insurance companies will not bury the cost of free contraceptive into their fee structure, then that person is not competent to run a free market economy.
The robo-signing settlement is a blatant example of Chicago style politics. Banks were buried in foreclosures, and to move the mountains of paper, employees were not reading what they signed.  Most of us have bought property, and we’re aware that there are inches of boilerplate that make no sense even when read in good faith.  This was a technical breach of law, but not consequential.  To date, no one has surfaced who was thrown out of their home because of faulty paperwork. This technicality was seized upon by foreclosure lawyers who wanted to slow down the process.  If they could get every page read, foreclosures would grind to a crawl. Then a light bulb went on: with the demonization of banks, it should also be easy to squeeze a large fine from these institutions.

Twenty-five billion dollars is a big stack of cash.  Why did banks pay so much for a minor offense?  Now comes the interesting part for those who want to understand how this administration works.  Ohio Attorney General Richard Cordray was the one who had the light bulb go off in his head, and he led the attorneys general in this extortion scheme.  Except the banks stalled, delayed, and dragged their feet.

Next, Cordray was nominated by Obama to head the Consumer Financial Protection Board, which was created by the Dodd Frank bill. Because he had politicized his prior office, Cordray could not gain approval in the Senate.  No problem. Obama made an infamous recess appointment.  Except that the Senate was not officially in recess. Senators wailed and/or whined, but Cordray settled into the executive chair in his unassailable agency—an agency with a guaranteed rake-off from the earnings of the Federal Reserve Board and absolute power to write banking regulations. Bankers looked aghast at their worst enemy controlling their business practices and coughed up tribute of $25 billion.

This is not unique. Several agencies under the Patient Protection and Affordability Act also have absolute regulatory power and independent financing that no one can touch.  This administration understands that they do not need legal ownership to extort assets from private enterprises or to dictate that churches go against their strongest held beliefs.  They only need control: Control through regulations and exorbitant fines.

Many say the contraceptive mandate was a blunder by the White House … perhaps not.  If the Catholic Church withdrew from healthcare and education, the country would become even further dependent on federal largess.

Yesteryear, highwaymen used to demand your money or your life.  Obama wants both.

James D. Best is the author of the Steve Dancy Tales and Tempest at Dawn, a novel about the 1787 Constitutional Convention. Look for his forthcoming book, Principled Action, Lessons from the Origins of the American Republic.