Lee, Klobuchar Praise DOJ’s Comments on Canadian Pacific’s Proposed Voting Trust
WASHINGTON—Senators Mike Lee (R-UT) and Amy Klobuchar (D-MN), Chairman and Ranking Member of the Senate Judiciary Subcommittee on Antitrust, Competition Policy, and Consumer Rights today issued the following statements on the Department of Justice’s determination that Canadian Pacific’s proposed voting trust “risks irreversible harm” to competition.
“I commend and thank the Department of Justice for weighing in on the side of competition in the railway industry,” said Lee. “The Department has confirmed my belief that Canadian Pacific’s proposed voting trust runs counter to long-standing sound merger policy by ‘scrambling the eggs’ before a review of the acquisition has been completed. Doing so would mean that any harm to competition of consumers would be almost impossible to cure.”
“I appreciate that the Department of Justice took Senator Lee’s and my request to weigh-in with the Surface Transportation Board on this important issue. The Anti-Trust Division has confirmed my concerns that the proposed voting trust would be bad for competition and bad for consumers. It is my hope that the Surface Transportation Board will listen to the Department of Justice’s thoughtful analysis,” said Klobuchar. “As Assistant Attorney General Baer said so pointedly at the Antitrust Oversight Hearing, the proposed voting trust ‘strikes me as letting the fox into the chicken coop, subject to the investigation later why there are so many feathers laying around.”
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April 8, 2016
"to elevate the condition of men--to lift artificial weights from all shoulders, to clear the paths of laudable pursuit for all, to afford all an unfettered start and a fair chance, in the race of life." --Abraham Lincoln
Chairman's Note: The Federal Bureaucracy Strikes Again
If you want to understand the corruption, deceit, and might-makes-right culture at the core of the federal government’s dysfunction and disgrace today, look no further than the two big stories out of Washington this week.
On Monday President Obama’s Treasury Department released sweeping new regulations effectively rewriting the tax code to make it even more difficult for U.S. companies to escape the double taxation on overseas earnings currently extracted by the IRS. Rather than trying to lower the U.S. corporate income tax rate – which is the highest in the industrialized world – the Obama administration wants to make it even more costly to do business in America.
Not to be outdone by the economic folly of their colleagues at the Treasury Department, on Wednesday bureaucrats at the Department of Labor published 1,000 pages of new regulations – collectively called “the fiduciary rule” – targeting the investment industry that will make it more expensive and less likely for low- and middle-income Americans to save for their future. Working Americans already face a host of obstacles that prevent them from saving for retirement or unexpected financial hardships, and observers from across the political spectrum agree that these new regulations will only further discourage private savings.
But as harmful as these policies will be for American families and businesses trying to get ahead in a still-stagnant economy, the real scandal of these new sets of rules are the flagrant abuses of power that created them.
In 2014 Treasury Secretary Jack Lew said “we do not believe we have the authority to address this inversion question through administrative action. [...] That’s why legislation is needed.” This was not a groundbreaking statement: everyone in Washington knows that the Secretary of the Treasury does not have the power to unilaterally change the tax laws just because he doesn’t like them. And yet that’s exactly what he did this week, with the blessing of President Obama – abandoning his constitutional scruples and betraying his respect for Congress’s rightful role in writing tax policy in order to score cheap political points.
Likewise, the Secretary of Labor has no legitimate authority to regulate the transactions between brokers and their retail clients as it does in its new fiduciary rule. The Dodd–Frank so-called financial reform law of 2010 explicitly authorized the Securities and Exchange Commission to perform this function. And yet, because the SEC had not yet fulfilled this mandate under Dodd-Frank, the Department of Labor stepped in to fill the regulatory void.
This is not how the American people expect their government to work, because it’s not how the federal government is supposed to work. The rules and regulations governing American society – especially those that have a major impact on our economy – must be debated and passed by elected members of Congress, not negotiated by industry insiders and unelected regulators behind closed doors in the shadowy federal bureaucracy.
That’s why I recently joined nine colleagues from the House and Senate to launch the Article I Project: a network of conservative policymakers working together on a new agenda of government reform and congressional re-empowerment.
The A1P recognizes that the problem of executive-branch overreach is often the result of perpetual, intentional congressional under-reach, and it proposes that a reclamation of those Article I powers by the House and Senate can lead not only to a more responsible, trustworthy government, but a healthier and happier republic.
Issue in Focus: Congress Has Duty to Respond to FCC's Open Internet Order
Many condemned this week’s news that Netflix has reduced the quality of its video stream for certain wireless customers as a violation of the Federal Communications Commission’s year-old Open Internet Order, or what’s commonly called “net neutrality.” However, several FCC commissioners have stated that they have no power to prevent Netflix from doing this, as net neutrality applies only to Internet Service Providers.
Even those who consider themselves net neutrality advocates can appreciate this problem: different standards apply to different companies just because a recently updated New Deal-era law says so. Why can one company be allowed to decrease the quality of its service to consumers while others are prohibited from altering their models to best suit consumer demands?
This situation demonstrates the central problem of the FCC’s net neutrality policy: an unaccountable government agency picks winners and losers, with the ultimate losers being American consumers who miss out on faster speeds and better quality at lower prices.
This onerous regulation has already hindered several money-saving options consumers could utilize. Innovative programs like T-Mobile's "Binge-On" are attacked under the pretense of net-neutrality concerns, even though they give consumers increased access to popular content at no additional cost. Meanwhile, some more restrictive services – like Netflix – are not subject to the same amount of regulatory scrutiny by net-neutrality proponents.
This real-world case proves that unelected bureaucrats should not write regulations that pick winners and losers while ignoring the cost-benefit consequences for consumers. And when regulators do unfairly place the government’s thumb on the scale of a free and open marketplace, Congress has a duty to respond.
That's why I introduced, along with several of my colleagues, the Restoring Internet Freedom Act. This bill will repeal the FCC's net neutrality rules and set the stage for more comprehensive reforms of federal technology policy, allowing for creativity and innovation that drives down costs and improves the lives of all consumers exponentially.
Instead of expanding the scope of an 80-year-old law beyond recognition, we should trust the good judgment and common sense of the American people to decide what works and what doesn't. This has been our nation's way since its inception: the belief that ordinary men and women – not distant, unelected bureaucrats – make their own decisions. The Restoring Internet Freedom Act is an important first step towards increasing competition in the technology marketplace, which will only benefit consumers as innovation intensifies, services improve, and prices drop.
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Sens. Lee and Cruz Take Aim at DOJ’s Operation Choke Point
Senators introduce legislation to curb regulatory abuse from federal banks
WASHINGTON, D.C. – U.S. Sens. Mike Lee (R-UT) and Ted Cruz (R-TX) today introduced legislation fighting the Obama administration’s Operation Choke Point, a Department of Justice (DOJ) initiative that unconstitutionally sought to choke off access to banking services for sellers of firearms and other lawful business enterprises. This legislation sponsored by Sens. Cruz and Lee serves as a companion bill to U.S. Rep. Blaine Luetkemeyer’s (R-Mo.) Financial Institution Customer Protection Act (H.R. 766), which passed the House with bipartisan support in February.
“Our right to bear arms – a right granted by God and protected by the Constitution – is fundamental to the protection of all our other rights,” Sen. Lee said. “An executive branch bent on taking away this right, through any administrative means necessary, is a danger to all Americans. That is why I am proud to co-sponsor the Financial Institution Customer Protection Act, which would end the federal government’s ability to abuse financial regulations to target firearm proprietors like they did during Operation Choke Point.”
“Under President Obama’s reign, the DOJ has abandoned its longstanding tradition of staying out of politics and has instead become a partisan arm of the White House,” Sen. Cruz said. “The Obama administration initiated Operation Choke Point to punish law-abiding small businesses that don’t align with the President’s political leanings. The DOJ should not be abusing its power by trying to bankrupt American citizens for exercising their constitutional rights. I am proud to stand with Sen. Lee and Rep. Luetkemeyer to stop this insidious manipulation by the administration and look forward to sending this legislation to the President’s desk.”
“I am pleased that my colleagues, Sens. Cruz and Lee, recognized the importance of the bipartisan Financial Institution Customer Protection Act and filed legislation that is identical to what the House of Representatives passed earlier this year,” Rep. Luetkemeyer said. “Today’s action confirms that Americans, all across the country, are speaking up after having been affected by Operation Choke Point. The Senators recognize the need for greater transparency in the Department of Justice and federal banking agencies. Operation Choke Point runs contrary to who we are as Americans, and I want to thank Sens. Cruz and Lee for joining me in this effort. I look forward to working with them to encourage the Senate to bring this bill to the floor in the very near future.”
Last November in a full Judiciary Committee hearing, Sen. Cruz sharply questioned the Hon. Stuart Delery, a nominee for U.S. Associate Attorney General, who approved Operation Choke Point and has since resigned from his post.
The full text of the Senate version of the Financial Institution Customer Protection Act of 2016 is available here and additional details of the bill are available below:
· The Financial Institution Customer Protection Act of 2016 would prohibit any federal banking agency from ordering banks to terminate customer accounts unless the regulator has a material reason other than “reputational risk,” the term used by the Obama Administration to identify and target “high risk” businesses like firearms and ammunition sellers, pawnshops, and short-term lenders.
· The bill also includes a section that amends the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA), which federal agencies have manipulated to implement Operation Choke Point. The change ensures that the original intent of the law is preserved, so that fraud against or by financial institutions can be penalized.
Today, The Daily Signal covered Sens. Cruz’s and Lee’s efforts to push back against Operation Choke Point. That article can be found here.
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Comment Of Senator Patrick Leahy (D-Vt.) and Senator Mike Lee (R-Utah)
On the House Judiciary Committee Approving the Bipartisan Email Privacy Act
“Last year we partnered with Chairman Goodlatte and Ranking Member Conyers to protect Americans’ privacy in the USA FREEDOM Act, and now we applaud them for their leadership in moving the Email Privacy Act through the House Judiciary Committee. This bill has unprecedented support from all corners of Congress and for good reason: It ensures that the same privacy protections that apply to documents stored in our homes extend to our emails, photos, and information stored in the cloud. These critical updates to the Electronic Communications Privacy Act will bring that law into the 21st century. The broad, bipartisan coalition that cuts across industry, civil society, and academia deserves credit for their members’ tireless work to move this bill. Congress has waited far too long to enact these reforms, but we are one step closer today. We urge the full House to pass this bill soon so the Senate can do the same. The American people deserve a law that matches today’s digital age.”
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April 15, 2016
"to elevate the condition of men--to lift artificial weights from all shoulders, to clear the paths of laudable pursuit for all, to afford all an unfettered start and a fair chance, in the race of life." --Abraham Lincoln
Chairman's Note: A Teaching Moment
More than seven years into the Obama administration, one would hope that Congress would have come to grips with the president’s will-to-power approach to politics.
On every issue – from health care and immigration to welfare and energy – President Obama has proven that he will abide by the letter of the law only to the extent that it conforms with his preferred policy outcome.
There is no policy area where this pattern of behavior has been more clearly established than education.
From day one, President Obama used stimulus dollars to try to bribe states to adopt common core standards. Then when that money ran out, he tried to leverage the stringent testing standards in the No Child Left Behind (NCLB) Act to achieve the same goal.
Under that law, a school could be deemed as “failing” by the federal education bureaucracy if it did not meet excessively high standardized testing benchmarks. But if a state agreed to adopt common core, the Obama administration promised to waive the NCLB penalties.
Nothing in NCLB allowed Obama to use the law to force common core on the states in this manner, but he did it anyway.
Given these glaring lessons of recent history, one would have hoped that Congress would make sure that the law that replaced NCLB – the Every Student Succeeds Act, which was debated and passed in December of last year – included enforceable protections against similar violations of the law by the president. But, as I pointed out at the time in an op-ed for the Deseret News, although the bill included limitations on the education secretary’s authority to coerce states into adopting federal standards, “[w]ithout a substantial enforcement mechanism — losing money — a future secretary will be just as able to side-step words intended to roll back his or her authority."
Now, just months later, President Obama’s new education secretary is doing exactly that. Education Week reports that the Department of Education’s draft rule for implementing ESSA will require states to change how they currently fund their schools in a way that will “force teacher transfers to equalize spending on salaries between schools, and significantly disrupt how districts allocate money and resources.”
This is exactly the kind of top-down micromanagement of education policy that has failed to produce any meaningful improvements in academic achievement – especially for students from low-income communities – over the past 50 years. States should be free to allocate their education resources as they see fit. Bureaucrats in Washington, D.C. should not be dictating which teachers work in which schools.
But this is exactly what happens when Congress delegates too much power to executive-branch agencies. This is what happens when Congress simply trusts – but does not verify – that the executive branch will follow the law.
The only way to stop the executive branch from abusing its power is to not give it power in the first place.
Instead of funneling money through Washington bureaucrats before sending it to America’s school districts and classrooms, federal-education dollars should follow the students to any public or private school of their choice.
Until we do that, we should not act surprised when the same centralized education model works to the benefit of central planners and bureaucratic busybodies, instead of parents, teachers, and students.
Issue in Focus: United States v. Texas
Next week the Supreme Court will hear oral arguments in United States v. Texas, the case challenging President Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA). This is the program the president created through executive action in 2014 to suspend federal immigration law for more than four million aliens living in the United States illegally, granting them “lawful presence,” work authorization, and access to a host of government benefits.
The questions at the heart of the case are whether DAPA is contrary to federal law – such that the Executive branch used powers it simply does not have under existing law – and whether the process by which President Obama established DAPA failed to abide by the notice-and-comment rulemaking requirements set forth in the Administrative Procedure Act (APA).
The Obama Administration’s lawyers maintain that DAPA is a lawful exercise of the Executive’s statutory authority under the Immigration and Naturalization Act (INA), and is therefore exempt from the procedural requirements of the APA. But this argument rests precariously on a strained reading of federal law and a biased view of history.
There’s no question that DAPA is contrary to federal immigration law. The INA specifically delineates the criteria under which an illegal alien may obtain a lawful immigration status on the basis of his or her child’s immigration status. And it places a strict annual upper limit on the number of individuals who may receive such adjustment of status. With DAPA, President Obama simply rewrote these statutory provisions, loosening the requirements and bypassing altogether any numerical limitations.
The real debate in this case is whether President Obama’s substantial revisions of the law fall within the boundaries of “prosecutorial discretion,” which gives executive-branch agencies limited authority to establish enforcement policies that prioritize the allocation of limited resources. The Obama administration maintains that DAPA is no different from deferred-action programs of the past, but an honest assessment of the historical record proves the opposite to be true.
Whereas former presidents have always reserved deferred action to provide temporary relief to narrowly tailored groups – often no more than one thousand individuals per year – President Obama is trying to use it to grant amnesty to more than four million foreign nationals living in the United States illegally.
While the politics of immigration may be controversial, as a legal matter, the facts of the case are clear and should form the basis of the Supreme Court’s opinion: by adopting the DAPA program, President Obama broke the law, usurped Congress’s authority to regulate immigration, and violated his constitutional duty to “take Care that the Laws be faithfully executed.”
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