Federal overreach threatens the rule of law

Over the last year, President Barack Obama’s administration has proposed and taken unprecedented, unilateral action beyond its authority outlined in our constitution and laws. These actions threaten the very rule of law upon which our nation was founded.

The president has made it clear he won’t be bound by the people’s representatives. “I’ve got a pen, and I’ve got a phone,” he said, and he has made it clear he will use them to achieve his goals.

Many of his administration’s actions will kill good-paying jobs in our state. In December, Montana joined 16 other states in commenting on proposed U.S. Environmental Protection Agency carbon regulations that would have huge impacts on the future of our economy, tax revenue and electricity costs in Montana. These regulations are proposed through the agency rule-making process, which doesn’t involve Congress.

Our comments detailed six specific reasons why the proposed regulations are illegal, not least of which is that the EPA lacks the authority to implement them. Put simply, the president is attempting to achieve by regulation what he knows he can’t achieve through Congress.

The president even ignored his own executive orders requiring federal agencies to consult with Indian tribes affected by agency proposals and to consider the impact of proposals on economic growth and job creation. The EPA’s proposed regulations could decimate the market for the Crow Tribe’s coal and kill a large number of tribal jobs. Coal mining provides self-sufficiency and family-wage employment for many Crow members, as well as revenue for important services the Tribe wouldn’t be able to afford otherwise.

Crow tribal chairman Darrin Old Coyote and I submitted comments to the EPA calling attention to this neglect and asking that it rescind the proposed regulations, go back to the drawing board, and include those who should have been part of the discussion from the beginning.

Earlier this month, the president directed the Department of Homeland Security to ignore immigration laws and gave legal status to millions of undocumented immigrants. While there is consensus that our immigration system is broken, fixing it is the purview of Congress and the president working together. No president should be allowed to nullify federal laws. That’s why Montana and 23 other states have filed suit in federal court to stop this executive action.

Last spring, the EPA proposed to dramatically expand its regulatory authority over bodies of water. The “Waters of the U.S.” proposal would give the give the EPA authority over all waters in any way connected to navigable water bodies. This would have significant impacts on farmers, ranchers and even the ability of our cities and counties to build and maintain critical infrastructure.

With the support of the incoming speaker of Montana’s House of Representatives, Montana’s farming and ranching community and the Montana Association of Counties, my office submitted comments to the EPA asking that the proposed regulations be withdrawn. Congress rejected this same expansion of power in 2007, and the U.S. Supreme Court has admonished the EPA that the Clean Water Act’s jurisdiction is limited. The president appears ready to ignore both.

We are a nation of laws. If a law must be changed, our state and national constitutions provide mechanisms for doing so when a consensus exists amongst the legislative and executive branches or when a compromise is reached. That’s the bedrock of the rule of law. Congress passes laws and the president executes them faithfully. That separation of powers is part of the system of checks and balances enshrined in our founding documents.

History shows us that the rule of law is seldom washed away at once, but rather is eroded slowly until little remains but the whims of whoever happens to hold office at the time. If we are to maintain the stability, peace, and prosperity we enjoy as a society, we must have the courage to stand up and say that no president can ignore the law.

Republican Tim Fox, of Helena , is the 24th Montana Attorney General.