In recent days, we at CFIF have marked the ignominious one-year anniversary of the Biden Administration…
CFIF on Twitter CFIF on YouTube
Drug Price Controls: On 9/13, Let's End the Indefensible 9-13 Small Molecule/Large Molecule Protection Disparity

In recent days, we at CFIF have marked the ignominious one-year anniversary of the Biden Administration's misnamed "Inflation Reduction Act" (IRA) by noting its particularly negative impact on pharmaceutical innovation and, in turn, the nation's health and wellbeing.

As acknowledged by the United States Senate Committee on Homeland Security  as well as groups like the American Cancer Society, Americans are already confronting alarming and unprecedented drug shortages in the wake of the IRA.

To mark today's date of September 13 - or 9/13 - it's appropriate to note a different but significant 9-13:  That refers to the indefensible distinction that the IRA makes between what are known as "small-molecule" and "large-molecule" drugs.

Specifically, the IRA imposes destructive price controls…[more]

September 13, 2023 • 03:24 PM

Liberty Update

CFIFs latest news, commentary and alerts delivered to your inbox.
Justice Gorsuch Trolls Obama with “Pen and Phone” Line as Supreme Court Lashes Regulatory Overreach Print
By Timothy H. Lee
Thursday, July 07 2022
The administrative state overreach that we’ve witnessed in recent decades constitutes a particularly dangerous threat to rule of law and individual freedom, because the bureaucrats conducting it remain unanswerable to the American society they seek to remake.

When the Supreme Court issues a historic decision reining in the vast federal regulatory agency leviathan, that alone merits our gratitude and celebration.  

When Justice Neil Gorsuch deliberately trolls Barack Obama for his infamous “pen and phone” regulatory authority remark, it becomes even more poetically just.  

And when Justice Gorsuch occupies the Supreme Court seat that Obama attempted to fill with the demonstrably inept Attorney General Merrick Garland, it compounds the delight.  

Obama’s “pen and phone” declaration occurred in January 2014, when he asserted his intention of employing executive power to impose his policy agenda without involving that pesky Congress:  

We are not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help that they need.  I’ve got a pen, and I’ve got a phone.  And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward.  

Although masked in Obama’s prototypical false bravado, his comment betrayed a weakness and impotence.  

For all of his mythical powers of persuasion and charm, Obama actually proved remarkably incapable of selling the American public on his radical agenda.  His signature initiative, ObamaCare, only passed by the narrowest of margins despite a filibuster-proof 60-seat Democratic Senate and overwhelming majority in the House.  Then, Obama proceeded to lose both majorities in a series of “red waves” at the national, state and local levels, which drove even The Washington Post to run the humiliating headline “Barack Obama’s Presidency Has Been a Very Good Thing for Republicans.”  

Confronted with legislative impotence as a result of his own radicalism and ineptitude, Obama resorted to shoehorning his agenda via “pen and phone” administrative agencies.  

What ensued was an unprecedented expansion of the Washington, D.C., regulatory agency state, composed of unelected bureaucrats who answered to no voter and few legal restraints.  Instead of actually passing laws via the democratic process in Congress, and with the judicial branch increasingly unwilling to impose the left’s agenda, the administrative agencies like the Environmental Protection Agency (EPA), the Federal Communications Commission (FCC), the Department of Education (DOE) and others became the spearhead of the radical left.  

Which brings us to last week’s Supreme Court ruling in West Virginia v. Environmental Protection Agency.  

In 2015, Obama’s Environmental Protection Agency (EPA) invoked an obscure provision of the Clean Air Act to promulgate the “Clean Power Plan” regulation, which aimed to effectively remake the nation’s power grid by limiting carbon emissions and requiring coal and natural gas energy producers to subsidize less-efficient renewable energy boondoggles.  

Thankfully, the Supreme Court just held in a 6-3 majority opinion that the lawmaking power on such major issues affecting our economy and society rests with the democratically elected Congress answerable to the people, not arrogant unelected administrative bureaucrats.  

That’s particularly true, the Court wisely pointed out, when Congress has repeatedly declined to enact the underlying carbon policy at issue in the case:  

[W]e cannot ignore that the regulatory writ EPA newly uncovered conveniently enabled it to enact a program that, long after the dangers posed by greenhouse gas emissions “had become well known, Congress considered and rejected” multiple times.  At bottom, the Clean Power Plan essentially adopted a cap-and-trade scheme, or set of state cap-and-trade schemes, for carbon.  Congress, however, has consistently rejected proposals to amend the Clean Air Act to create such a program.  It has also declined to enact similar measures, such as a carbon tax.  “The importance of the issue,” along with the fact that the same basic scheme EPA adopted “has been the subject of an earnest and profound debate across the country … makes the oblique for of the claimed delegation all the more suspect.”  

The Court concluded that “it is not plausible that Congress gave to the EPA the authority to adopt on its own such a regulatory scheme,” and that a “decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”  

Although Justice Gorsuch joined that 6-3 majority opinion, he added a brief concurrence for good measure in which he trolled Obama for this regulatory arrogance.  “The Constitution,” Gorsuch said, “does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives.”  

The administrative state overreach that we’ve witnessed in recent decades constitutes a particularly dangerous threat to rule of law and individual freedom, because the bureaucrats conducting it remain unanswerable to the American society they seek to remake.  

The Supreme Court’s check on regulatory agencies throughout the federal government going forward is therefore welcome.  Justice Gorsuch’s “pen and phone” zinger just adds a sweet cherry on top.

Notable Quote   
"The 2024 presidential election is over a year away, but the left's legal assault on common-sense election integrity measures has already begun.Last month, a district court in San Antonio ruled that Texas cannot enforce the provision of Senate Bill 1 which established a voter identification requirement for mail in voting in Texas. The next day, a district court in Atlanta ruled against Georgia Senate…[more]
— Chad Ennis, Vice President of Honest Elections Project
Liberty Poll   

In your opinion, how likely is a federal government shutdown at the end of September, based on budgetary and other disagreements in the fractured House of Representatives?