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“A Titanic Struggle Begins”

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The Monday morning column from Clark Judge:

A Titanic Struggle Begins
By Clark S. Judge, managing director, White House Writers Group, Inc. ( <> ) and chairman, Pacific Research Institute ( <> )

All through the health care debate, the Administration and Democratic leaders in Congress promised wavering members that all would be right once they passed the bill. Starting almost immediately, the American people would see that the legislation delivered more and cost less than anyone thought. And they would respect the majority party’s show of strength.


Almost immediately upon the legislation’s passage, a line of companies including John Deere and AT&T took heart-stopping write-offs that they directly attributed to the new burdens the act of Congress imposed. In an act of not-our-fault thuggery (too much a piece with tactics employed to pass the healthcare legislation), House Democrats threatened to haul the heads of the now-much-poorer corporations before Congress to explain themselves. But the explanation was obvious to all but the most ignorant. The write-offs were required by law and regulation — securities law and regulation, which mandate such announcements following material events.
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Meanwhile, more than twenty state attorneys general announced that they were filing suit to stop implementation of the legislation. They talked of Constitutional violation of rights (where in the Constitution is Congress given the power to require citizens to purchase a product), but underlying these protests was a fiscal fact. The mandated increases in Medicaid coverage will ruin the finances of every state in the nation, or at least every state other than Louisiana and Nebraska, beneficiaries of last minute deals that the White House cut to snag the cloture votes of their holdout senators.

No wonder that after a brief surge for the President, the Rasmussen poll’s anti-Obama gap between strongly favorable and strongly unfavorable voters started opening up again over the weekend.

Nevertheless, in Washington the word on the street last week was that, as one long-time capital city hand told me, after the health care vote the Administration was feeling deeply “empowered.” This old hand works for a heavily regulated industry and reported that the new assertiveness could already be felt in the oversight agency.

The rundown of regulatory agendas being fired up is daunting.

The Federal Communications Commission is pushing net neutrality, another term for price controls and mandated services, which, come to think of it, describes the health care bill, too.

The EPA appears to have targeted American farmers. Its otherwise hard-to-fathom actions run from the California Central Valley (where the agency denied desperately needed water for months until a health-care-related deal reportedly got the spigot turned back on) to the Midwest (where a 12-year review’s finding that a herbicide critical to corn farming is entirely safe has been set aside on the basis of a complaint from those wonderful folks who brought us the bogus Alar scare, the National Resources Defense Council).

From the Consumer Products Safety Commission to the Securities and Exchange Commission, new rules and new interpretations of old rules are the order of the day.

Meanwhile in Congress, the leadership is pushing through legislation to give the Federal Trade Commission authority that a coalition of thirty trade associations has said would “grant such sweeping powers that the FTC could essentially act as an unelected legislature governing industries and sectors across the economy.”

And with apparent leadership support, Senator Arlen Spector is pushing through his Judiciary Committee legislation that would allow trial lawyers to sue corporations without showing a cause of action beyond their own accusation. In criminal law such a provision would be called a repeal of habeas corpus.

Everywhere the templates for change are similar.

Administrative discretion is favored over fixed rules, as with the proposed expansion of FTC powers.

Accusations and anticipations of problems are favored over firm evidence, as with the EPA’s actions in the Midwest.

Non-market players and activists are trusted, while market players are distrusted, as with Senator Spectors legislation.

Claims of property are downgraded, as with net neutrality.

Put more broadly, the balance has shifted toward discretionary government, away from the rule of law.

Of this new dynamic, political philosopher Charles Kesler writes in the current Claremont Review of Books, which he edits, “Faster than one might think, a government of equal laws turns into a regime of arbitrary privilege…. Freedom itself ceases to be a right and becomes a gift, or the fruit of a corrupt bargain….”

So here is where we find ourselves today, one week after the health overhaul has passed. Based on the early evidence, an intensely unpopular bill looks likely to become more, not less, reviled in the months ahead. But the Administration and its allies in Congress are pushing ahead with new vigor.

A titanic political struggle has begun.


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