Ouachita-Acts, Laws and Regulations

[inyati13]

Ouachita,
I did not ignore your questions. Discussing whether a post is a clarification or defensive, is like discussing whether a sentence is imperative or exclamatory so may I provide this which IMO is more entertaining at least to those who enjoy details? In the thread by Jo, there is an issue of "whose regulation is it?" The authority and process of promulgating regulations is founded in the Constitution. Regulations are promulgated by agencies. No one "owns" regulations, they belong to the People. Regulations are of the people, by the people and for the people. The Constitution of the United States was written by the founding fathers but it is of the People, by the People and for the People. In a representative government, the Congress is by extension the People.

Regulations are codified by topic, i.e., Surface Mine Regulations, Clean Water Act regulations, etc. The US Congress as the legislative branch, is the body authorized to make law. Laws are passed in the form of Acts, i.e., The Clean water Act, The Hatch Act, Naturalization Act of 1780, Fugitive Slave Act of 1793, etc. Congress passes Acts which are a formal set of statues. Statues are "legislative laws" to distinguish them from "case law" that is decided in the courts. Case law does not change legislative law but in future litigation pursuant to the legislative law, attorneys will use case law to support their challenge of activities conducted under legislative law.

Acts document the authority under which they are enacted. Acts will designate the federal agency or branch of the administrative arm of government that is responsible for implementation of the law (Act). The Act will authorize an agency to promulgate regulations pursuant to the law. Federal Agencies cannot write Law. Federal agencies are only authorized to promulgate the regulations. Under that process, the people have a right to comment and question whether those regulations properly and fairly implement the law and the intent of Congress. Proposed regulations are published in the Federal.

I copied this from the web:
The Federal Register, abbreviated FR or sometimes Fed. Reg., is the official journal of the federal government of the United States that contains government agency rules, proposed rules, and public notices. It is published daily, except on federal holidays. The final rules promulgated by a federal agency and published in the Federal Register are ultimately reorganized by topic or subject matter and codified in the Code of Federal Regulations (CFR), which is updated annually.

Agencies cannot act beyond the authority of the enabling legislation or the intent of Congress without challenge. The regulated community in the United States is highly motivated, financed and capable. All regulations must go through a public comment process. If the regulated community or a private citizen believes the regulations do not reflect the letter and intent of congress, they can appeal the agencies' actions to the judiciary branch. An 88 year old woman in Manhattan can comment on the disposal regulations for brine water as it is regulated in the state of North Dakota. Her comment must be publically responded to in the Federal Register. At the conclusion of the promulgation process, regulations are published and codified by topic in the CFR. At that point they become the people's regulations.
It is common to say a regulation is an EPA or FAA Regulation but they are the "people's regulation".

 

[Red Bull Breeder]

Maybe once that was so. Not anymore.

 

[Jogeephus]

Agencies cannot act beyond the authority of the enabling legislation or the intent of Congress without challenge.

Iyati there is the real world and then apparently there is yours. Did you guys sit around the coffee pot and brag about how you bullied the miners because they didn't have a silly piece of paper on a post by the gate? Did you ever shake people down for a little folding money? No need to answer that, we both know its wrong and we both know its done on a regular basis.

Whenever I hear one of you guys use the words quoted I think of the EPD idiot I met a few years ago and our discussion about the navigable waters. I know the law, I know the intent of the law, I obeyed the law, I was well within the law but it wasn't enough for this overzealous little hair-splitting twit with small man's syndrome who forgot who was paying his salary.

 

[HDRider]

Being the "people's regulation", how do "people" reverse them? What people? Congress people? President people? Federal/State Bureaucratic People? Regular people?

 

[inyati13]

Maybe once that was so. Not anymore.

RBB: I disagree.

In the frontier days, less than 1% of the population lived where there was access to the Federal Register. The Congress was virtually unaccountable to the people because it was impossible to be informed; not out of disinterest but because of convenience.

The opportunity to be involved is much greater today with the availability of information. I think people are too busy or disinterested to get involved. They all think someone else will do it for them.

 

[inyati13]

Agencies cannot act beyond the authority of the enabling legislation or the intent of Congress without challenge.

Iyati there is the real world and then apparently there is yours. Did you guys sit around the coffee pot and brag about how you bullied the miners because they didn't have a silly piece of paper on a post by the gate? Did you ever shake people down for a little folding money? No need to answer that, we both know its wrong and we both know its done on a regular basis.

Whenever I hear one of you guys use the words quoted I think of the EPD idiot I met a few years ago and our discussion about the navigable waters. I know the law, I know the intent of the law, I obeyed the law, I was well within the law but it wasn't enough for this overzealous little hair-splitting twit with small man's syndrome who forgot who was paying his salary.

Jo. My best response is just trust in the Lord.

 

[lavacarancher]

Maybe I should stay out of this but ……

I agree with what Inayati says about how laws are brought forward but I also agree with a couple of other statements made here. First, Congress doesn't have the sense to make laws like demanding the auto manufacturers add another $7K to the cost of their vehicles for the benefit of improving the environment. So that's out. Congress must debate and enact laws that are part of someone else's agenda. So when the "people" demand that the EPA do something about this or that it is the EPA (or other agency) that brings the matter to congress. It is then passed into law (or not) based on the "will of the people" through our electorate.

Second, as long as there are people who are very vocal and, in some cases, militant, about their cause then we will always be ruled by that minority. Ever heard the old adage "the squeaky wheel ….". The only way to change that is either by the majority being louder or by civil insurrection. Furgeson and Baltimore are good examples of civil insurrection.

Third, follow the money. You can bet your a$$ that someone is benefitting financially at the expense of the rest of us through the passage of any law by congress at the behest of the EPA. Even our leader is up to his hip pockets in ties to carbon sequestration rules and regulations - to his benefit.

And I'm sure there is a forth and fifth and so on, but I think you get the picture.

 

[inyati13]

Maybe I should stay out of this but ……

I agree with what Inayati says about how laws are brought forward but I also agree with a couple of other statements made here. First, Congress doesn't have the sense to make laws like demanding the auto manufacturers add another $7K to the cost of their vehicles for the benefit of improving the environment. So that's out. Congress must debate and enact laws that are part of someone else's agenda. So when the "people" demand that the EPA do something about this or that it is the EPA (or other agency) that brings the matter to congress. It is then passed into law (or not) based on the "will of the people" through our electorate.

Second, as long as there are people who are very vocal and, in some cases, militant, about their cause then we will always be ruled by that minority. Ever heard the old adage "the squeaky wheel ….". The only way to change that is either by the majority being louder or by civil insurrection. Furgeson and Baltimore are good examples of civil insurrection.

Third, follow the money. You can bet your a$$ that someone is benefitting financially at the expense of the rest of us through the passage of any law by congress at the behest of the EPA. Even our leader is up to his hip pockets in ties to carbon sequestration rules and regulations - to his benefit.

And I'm sure there is a forth and fifth and so on, but I think you get the picture.

Glad to have you join in. I don't think this needs to be personal. Jo, bless his heart, got emotional, IMO.
Lavacarancher, I disagree with on the point of what is the vocal minority. This nation is about equally divided on most fronts. There are about as many americans who believe the environment should be more vigorously protected as there are people in Jo's camp who think they go too far. I am on my cell so am keeping this brief.

 

[greybeard]

Agencies cannot act beyond the authority of the enabling legislation or the intent of Congress without challenge.

Cannot without challenge--or do not? They know the law--why would they exceed their authority and force the People to challenge their power?
We all know the answer to that. Power corrupts. The general practice of doing as they dang well please, with the attitude of "So sue us" says way more about their arrogance and narcissism than anything else.

In the real world, we all know govt of all stripes and sizes exceed their authority, and keeping them under control is difficult at best, due to their own propensity to increase their control over those they are supposedly serving, and 'the people have to take their own servants to court--and expensive and lengthy process.
There are plenty of laws and even constitutional limits regarding what govt 'cannot/shall not' do but there are seemingly an equal # of instances where govt, it's agencies and departments care little about any of that. Never underestimate the imagined power of a clipboard and white or yellow hardhat.

In his ruling, Walton said the intent of Congress was clear with regard to the lines of authority under the Clean Water Act.

"Although the Administrator of the EPA is tasked with administering the Clean Water Act, the Administrator's authority is subject to limitations," wrote Judge Reggie Walton in his decision. "First, and most important, Section 404 of the Clean Water Act provides an express limitation on the Administrator's authority with respect to the issuance of Section 404 permits. The statutory language explicitly establishes the Secretary of the Army, acting through the Corps, as the permitting authority, which strikes the Court as an express limitation."

"Congress established a permitting scheme in which the Corps is to be the principal player, and the EPA is to play a lesser, clearly defined supporting role," Walton wrote. "With the adoption of the MCIR Assessment and the EC Process, the EPA has expanded its role in the issuance of Section 404 permits and has thus exceeded the statutory authority afforded to it by the Clean Water Act…, the MCIR Assessment and the EC Process are not consistent with the legal duties and authority accorded the EPA by Section 404 of the Clean Water Act,

On June 23, 2014, the U.S. Supreme Court ruled in Utility Air Regulatory Grp. v. EPA,[1] that the United States Environmental Protection Agency ("EPA") exceeded its statutory authority under the Clean Air Act when it determined that stationary source emissions of greenhouse gases ("GHGs") would trigger permitting obligations under the Prevention of Significant Deterioration ("PSD")[2] program and Title V of the Act.[3

On March 23, 2012, the United States District Court for the District of Columbia granted plaintiff's motion
for summary judgment in Mingo Logan Coal Co. v. U.S. Envtl. Prot. Agency. Plaintiff was represented by
Hunton & Williams. In a precedent-setting opinion, the court held that the Environmental Protection
Agency (EPA) exceeded its authority under Section 404(c) of the Clean Water Act (CWA) when it
attempted to "veto" Mingo Logan's existing Section 404 permit by withdrawing the specification of certain
areas as disposal sites after the U.S. Army Corps of Engineers (Corps) had issued the permit.

More than 1,000 pages of documents released late Monday show the secret FISA court repeatedly chastised the government for overstepping its authority in collecting data on Americans' emails, but never shut down the program.

The National Security Agency "exceeded the scope of authorized acquisition continuously during the years of acquisition under these orders," Judge John D. Bates wrote in a heavily redacted, 117-page opinion released as part of the documents.

In a win for opponents of the National Security Agency's massive telephone metadata collection efforts, the Second Circuit Court of Appeals ruled Wednesday the program is not authorized by the Patriot Act.

On September 26, 2014, The United States Court of Appeals for the District of Columbia Circuit ruled that the FDA had "short circuited" its procedural requirements, pertaining to device reclassification and formal rulemaking, when it reevaluated a medical device being sold on the market in an effort to require the device to obtain further approval.

The U.S. Bureau of Land Management (BLM) overstepped its authority to exchange federal land in Washington and California by buying and selling properties outside of Congress' appropriations process, says a government audit released Monday.
"BLM's actions circumvent the carefully crafted statutory framework governing the sale, purchase, and exchange of public land — a framework designed to protect the public interest," it said.

 

[inyati13]

Greybeard, I appreciate your posts. You don't whine and your message is documented. Thanks, sincerely. Emotions rarely add credibility.

GB, based on my personal experience, Agencies are sensitive to exceeding their authority. Second, going back to Jo. I have only seen one case at the federal level involving bribery. I saw several at the state level and was a witness for the Office of Inspector General in removing a federal employee from his job for solicitation of pay off bribes. It so happened that the man he was soliciting bribes from was a former superintendant at a coal company I worked for. Together, we took the crook down.

 

[Jogeephus]

Agencies cannot act beyond the authority of the enabling legislation or the intent of Congress without challenge.

Cannot without challenge--or do not? They know the law--why would they exceed their authority and force the People to challenge their power?
We all know the answer to that. Power corrupts. The general practice of doing as they dang well please, with the attitude of "So sue us" says way more about their arrogance and narcissism than anything else.

In the real world, we all know govt of all stripes and sizes exceed their authority, and keeping them under control is difficult at best, due to their own propensity to increase their control over those they are supposedly serving, and 'the people have to take their own servants to court--and expensive and lengthy process.
There are plenty of laws and even constitutional limits regarding what govt 'cannot/shall not' do but there are seemingly an equal # of instances where govt, it's agencies and departments care little about any of that. Never underestimate the imagined power of a clipboard and white or yellow hardhat.

In his ruling, Walton said the intent of Congress was clear with regard to the lines of authority under the Clean Water Act.

"Although the Administrator of the EPA is tasked with administering the Clean Water Act, the Administrator's authority is subject to limitations," wrote Judge Reggie Walton in his decision. "First, and most important, Section 404 of the Clean Water Act provides an express limitation on the Administrator's authority with respect to the issuance of Section 404 permits. The statutory language explicitly establishes the Secretary of the Army, acting through the Corps, as the permitting authority, which strikes the Court as an express limitation."

"Congress established a permitting scheme in which the Corps is to be the principal player, and the EPA is to play a lesser, clearly defined supporting role," Walton wrote. "With the adoption of the MCIR Assessment and the EC Process, the EPA has expanded its role in the issuance of Section 404 permits and has thus exceeded the statutory authority afforded to it by the Clean Water Act…, the MCIR Assessment and the EC Process are not consistent with the legal duties and authority accorded the EPA by Section 404 of the Clean Water Act,

On June 23, 2014, the U.S. Supreme Court ruled in Utility Air Regulatory Grp. v. EPA,[1] that the United States Environmental Protection Agency ("EPA") exceeded its statutory authority under the Clean Air Act when it determined that stationary source emissions of greenhouse gases ("GHGs") would trigger permitting obligations under the Prevention of Significant Deterioration ("PSD")[2] program and Title V of the Act.[3

On March 23, 2012, the United States District Court for the District of Columbia granted plaintiff's motion
for summary judgment in Mingo Logan Coal Co. v. U.S. Envtl. Prot. Agency. Plaintiff was represented by
Hunton & Williams. In a precedent-setting opinion, the court held that the Environmental Protection
Agency (EPA) exceeded its authority under Section 404(c) of the Clean Water Act (CWA) when it
attempted to "veto" Mingo Logan's existing Section 404 permit by withdrawing the specification of certain
areas as disposal sites after the U.S. Army Corps of Engineers (Corps) had issued the permit.

More than 1,000 pages of documents released late Monday show the secret FISA court repeatedly chastised the government for overstepping its authority in collecting data on Americans' emails, but never shut down the program.

The National Security Agency "exceeded the scope of authorized acquisition continuously during the years of acquisition under these orders," Judge John D. Bates wrote in a heavily redacted, 117-page opinion released as part of the documents.

In a win for opponents of the National Security Agency's massive telephone metadata collection efforts, the Second Circuit Court of Appeals ruled Wednesday the program is not authorized by the Patriot Act.

On September 26, 2014, The United States Court of Appeals for the District of Columbia Circuit ruled that the FDA had "short circuited" its procedural requirements, pertaining to device reclassification and formal rulemaking, when it reevaluated a medical device being sold on the market in an effort to require the device to obtain further approval.

The U.S. Bureau of Land Management (BLM) overstepped its authority to exchange federal land in Washington and California by buying and selling properties outside of Congress' appropriations process, says a government audit released Monday.
"BLM's actions circumvent the carefully crafted statutory framework governing the sale, purchase, and exchange of public land — a framework designed to protect the public interest," it said.

:tiphat: :tiphat:

This thread reminds me of a friend who got a phone call from a bureaucrat who politely asked for $10,000 for his re-election fund else he would send his regulators to pay him a visit and "it would be a shame to have his business shut down".

For the people.

 

[sim.-ang.king]

I'm sure glad inyati lives a happy little world where the EPA is your best friend, and would never do anything above the law.

 

[Red Bull Breeder]

Inyati there is a reason I don't often post on any thread you start. I understand that you don't bite the hand that feeds you. I also understand how the government is supposed to work, and the reality of how it does work. See it quite often with the NPS.

 

[inyati13]

I'm sure glad inyati lives a happy little world where the EPA is your best friend, and would never do anything above the law.

Thank you. I appreciate your observation. We all live in that world between our ears. I make mine a happy little world. I think I do better than the average bear. Which brings me to a point, don't listen to anyone under 60 years of age. Why? Because once you turn 60, you realize there is only one thing that is really important! And that is "feeling good."

 

[inyati13]

Being the "people's regulation", how do "people" reverse them? What people? Congress people? President people? Federal/State Bureaucratic People? Regular people?

HD:
The regulated community lobbies directly or jointly through institutions like the National Coal Mining Association, etc. They have the resources to conduct lobbing efforts to influence the regulatory process. Acts can also be counter mandated by the legislative branch. Only the legislative branch can "undo" their legislative actions. The President's only shot is veto power before legislation becomes law.

"Regular" people primarily wield their power at the ballot box. My comment on that: in the last 35 years it has not made much difference with the choices we have been offered. Six of one and half a dozen of the other. As I have said before, all the issues go to the root – poor leadership.

RBB: Institutions like people often fail. My purpose with the opening post was to introduce the topic and provide a technical discussion of the legislative process as designed to work in the Constitution. Everyone including the regulated community, special interest groups, and individuals will have some influence on how well it works and opinion on its merits. I have no interest in what that is with the exception of providing commentary.

 

[Caustic Burno]

Anyone that thinks our government hasn't exceeded its constitutional authority
is bat shyt crazy IMO. They have created agencies that were not authorized to do so.
Congress only has the authority to create and maintain a military, postal system and levy tax.
My question is then what do all of these other SS agencies fall under Postal worker, Army, Navy or
illegal bureaucracy.

 

[wacocowboy]

Anyone that thinks our government hasn't exceeded its constitutional authority
is bat shyt crazy IMO. They have created agencies that were not authorized to do so.
Congress only has the authority to create and maintain a military, postal system and levy tax.
My question is then what do all of these other SS agencies fall under Postal worker, Army, Navy or
illegal bureaucracy.

I have been saying that for years.

 

[Craig Miller]

The opportunity to be involved is much greater today with the availability of information. I think people are too busy or disinterested to get involved. They all think someone else will do it for them.

Thats a fact right there. How hard is it to make a phone call or send an email to your congress man? Well i would have to get off CT and see what is being brought up for discussion. And id have to turn off greys anatomy and watch the news.....wait a minute. I dont have time for all this. Ron can you keep up with whats going on for me and let me know when i need to get involved. Do you mind calling my rep for me too?

 

[inyati13]

Anyone that thinks our government hasn't exceeded its constitutional authority
is bat shyt crazy IMO. They have created agencies that were not authorized to do so.
Congress only has the authority to create and maintain a military, postal system and levy tax.
My question is then what do all of these other SS agencies fall under Postal worker, Army, Navy or
illegal bureaucracy.

Caustic Burno in the post above stated: "They have created agencies that were not authorized to do so.
Congress only has the authority to create and maintain a military, postal system and levy tax."

CB: would you support this statement with a reference to the part of the Constitution that specifically prohibits or excludes the creation of agencies other than the Department of Defense, Postal Service and IRS. I have heard this statement but have never been able to substantiate the claim.

It seems odd to me that agencies that Congress has created through the legislative process that are not authorized by the Constitution would not have been challenged in the Supreme Court. Do you know if such challenges have been taken to the Supreme Court? If they have, it seems that they failed or the resulting case law would have mandated that those offices be eliminated.

If CB does not want to reply for whatever reason, Does anyone know the response to my post?

Just as a background. The Cabinet is established by Article II, Section 2 of the Constitution. A large number of agencies have been created around those 15 executive departments. The Congress has created the other offices and agencies through legislation. I would think if those Acts that authorized the agencies are contrary to Constitutional Law that they would have been challenged in the Supreme Court over the 200 year history of this young Republic.

Anyone can answer, does not have to be CB. This is a point I have wondered about for years and just don't care enough about to research.

 

[highgrit]

Inyati, you would of been a good lawyer. Loopholes everyone's looking for loopholes, and grey areas.