THE OTHER CLIMATE CHANGES

We hear much discussion about climate change these days--the purported changes in earth weather patterns. Many assert that such climate change is caused by human activity. Governmental agencies increasingly seek to regulate such activities under the assumption climate change can be controlled. Others assert that such regulation is misplaced because either climate change does not exist or, if it does exist, climate change results from the earth's natural cycles over time.

Regardless, another type of climate change appears to be causing discussion: increasing concern over intrusion by administrative agencies and their regulatory power into details of private lives of the public.

For example, Senator John Thune (R. South Dakota) recently expressed concern about a proposed rule that would enable EPA to garnish wages to pay for fines levied by EPA for violation of its compliance orders.* He said, in part, "The EPA has been busy trying to expand its authority over the lives of Americans by arbitrarily imposing a multitude of new and expensive regulations that are leading to higher costs for middle-class families."

Along similar lines is a recent editorial from the Bismarck Tribune.** It asserts that EPA has compiled detailed maps of not only permanent waterways but also of intermittent streams and wetlands as a means to expand its regulatory power over a wide range of canals, ditches, reservoirs and wetlands. It stated, in part, "Burdening private landowners and the farming and ranching community by extending the EPA's jurisdiction to include seasonal waterways would come at a price. If the EPA is allowed to make a new ruling defining temporary waterways as being within its control, private landowners' rights will be diminished. The EPA's approach is problematic in many ways. The lack of transparency from yet another government agency further erodes public trust. The intent of the maps strongly suggests an underlying motive to expand reach and control--another troubling example of government overreach."

A recent editorial commentary in Barrons discussed concern over the regulatory fallout from the Affordable Care Act ("Obamacare").*** It pointed out that today regulations promulgated by administrative agencies and subsequent court decisions are more overreaching than the actual legislation enacted by COngress. It said, "We really can't know what a bill will mean until long after passage, when the courts tell us what the regulations mean." The commentary added:"Although the doctrine of enumerated powers was paramount for more than a century and a half, few Americans now living can imagine the restraints on federal power that held sway as late as the 1920s. Nowadays, the ninth and 10th amendments are "dead letters" in a country that does not even remember what a dead letter office was....What we now know is that we have lost our constitutional government of laws enacted by our elected representatives. Now we are governed by rules and judges."

When governmental agencies dictate what students can eat for lunch and what kinds of toilets and light bulbs people can have in their homes, one can understand a growing climate change of concern over what may seem to be unfettered regulatory expansion over private activity. From a constitutional standpoint, perhaps we have moved from a government of enumerated powers to one of enumerated prohibitions--if the constitution does not say government cannot do something, then it has the power to do it. That is climate change in and of itself.

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* Rapid City Journal, July 21, 2014, p.B4

** Reprinted Rapid City Journal
September 5, 2014, p.B3

*** July 28, 2014, p.39