Saturday, December 6, 2014

May Tribe increase...

Harvard Law School professor Laurence Tribe takes his former pupil's EPA to the woodshed, and we'd like to see him run with his argument. Something like this would do nicely;
The defects in the Proposed Rule transcend political affiliations and policy positions and cut across partisan lines. The central principle at stake is the rule of law – the basic premise that [the IRS] must comply with fundamental statutory and constitutional requirements in carrying out its mission. The Proposed Rule should be withdrawn. It is a remarkable example of executive overreach and an administrative agency’s assertion of power beyond its statutory authority. Indeed, the Proposed Rule raises serious constitutional questions.
He's just warming up before getting down to specifics;
The Proposed Rule lacks legal basis and represents an improper attempt by [the IRS] unilaterally to remake a vast portion of the American economy on the basis of ... hitherto obscure provision[s (sections 1311 and 1321)] of the [Patient Protection and Affordable Care Act].
Which is, according to the Supreme Court in Utility Air Regulatory Group v. EPA, a unilateral assertion of power;
[The] interpretation is also unreasonable because it would bring about an enormous and transformative expansion in EPA's regulatory authority without clear congressional authorization. When an agency claims to discover in a long-extant statue an unheralded power to regulate 'a significant portion of the American economy,' we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast 'economic and political significance.'
Summing up;
[IRS's] claim that it is entitled to pick and choose which version of [sections 1311 and 1321] it prefers represents an attempt to seize lawmaking power that belongs to Congress. Under Article I, Article II, and the separation of powers, [IRS] lacks the ability to make law.
Further, the Proposed Rule [of the IRS] violates principles of federalism and seeks to commandeer state governments in violation of the Tenth Amendment.
Always good to have the Constitution firmly on your side, right, Larry?

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