Congress killing us softly with laws and red tape

WASHINGTON — For the past 20 years, I have advised landowners, homebuilders and energy companies on the intricacies of the Endangered Species Act and the Clean Water Act. Both are complex statutes supplemented by dense volumes of regulations and administered by confusing agencies that have state and local counterparts applying state and local versions of the similar laws and rules.

The costs of these regulatory regimes are enormous, but dimly, if at all, understood by the public. The highest-sounding rhetoric surrounds both laws, but, even as they accomplish important environmental goals, they also operate to batter tens of thousands of Americans every year.

The Consumer Products Safety Improvements Act of 2008 (CPSIA) is another example of legislative good intentions gone horribly wrong. When Congress, in a burst of misguided zeal, passed impossible-to-meet production standards impacting thousands of products sold to children, it unleashed a steamroller of new rules on American businesses small and large.

As a consequence, hundreds of millions of dollars of inventory — children’s bikes, teething rings, etc. — were obliged to be pulled from shelves and permanently put in a warehouse or destroyed.

Neither these environmental statutes nor the CPSIA fiasco will seem much of a problem if either the cap-and-tax legislation that passed the House by eight votes Friday or the similarly radical proposals concerning American medicine pending on both sides of the Capitol make it out of this Congress by fall 2010.

This is by far the most radical Congress in modern American history, recklessly running up gargantuan deficits and blasting out thousands of pages of new laws that its members have not read — laws that will birth tens of thousands of new pages of rules that as-yet-not-created agencies will be applying to every American and every American business.

Like the environmental and consumer products laws of the past generation, the cap-and-tax and health care laws will require legions of lawyers to interpret and apply, and a mountain range of taxes, fees and fines to finance.

Not just the prices of houses and kids’ stuff will rise as a result. The prices of everything using energy will skyrocket, and medicine will grow so expensive that it will have to be rationed, though quietly.

The administrative state was launched a century ago by progressives in search of a scientific approach to government. What Presidents Teddy Roosevelt and Woodrow Wilson, and their heirs, have bequeathed is a Congress addicted to rhetoric and delegation.

Think Capt. Jean-Luc Picard grandly announcing, “Make it so,” only to immediately leave the Enterprise.

The Obama/Pelosi/Reid Democrats in charge of everything in Washington, D.C., have decided to order everything on the menu, and a permanent class of government-addicted elites — lawyers, economists, think-tankers, mainstream media, senior bureaucrats — are cheering them on because the growth in the size and complexity of government means a growth in the demand curve for specialist services at specialist prices.

A country struggling to get through the worst recession since the Great Depression cannot imagine that its elected representatives are pushing the imposition of vast new taxes and the creation of gigantic new bureaucracies, but they are.

Voters cannot imagine that lawmakers would be indifferent to the consequences of their obvious mistakes, but ask anyone who has tried to cope with a Delhi Sands Flower-loving Fly, a Quino Checkerspot Butterfly, a Prebble’s Jumping Mouse or a Red-Cockaded Woodpecker, or the manufacturer of child-safe, all-terrain vehicles, about the concern of Congress for individuals burdened by legislative enthusiasms administered by agencies told by the law to do exactly what the law says.

The administrative state is pitiless because lawmakers tell bureaucrats what they must do, and in language that does not admit of judgment or balance or discretion. Even the best federal employees will often have their hands tied by a law’s stentorian commands, and even one or two ideologues with tenure can pursue a small business with a fanatic’s zeal.

Examiner columnist Hugh Hewitt is a law professor at Chapman University Law School and a nationally syndicated radio talk-show host who blogs daily at HughHewitt.com.