makers, and the public.

in 70 major markets, as well as a diverse group of thought leaders, decision

edition of the New York Times. The op-ed feature reaches over 5 million readers
WLF ’s Civic Communications Program publishes “In All Fairness” in the national IN ALL FAIRNESS

Governing in the Shadows

Although many of their political allies were Medicaid reimbursements for certain FDA-
recently swept out of power, armies of pro- approved drugs, thereby making the drugs
fessional activists and lawyers remain firmly unavailable for millions of Americans.
entrenched, eager to move forward with their With much of America distracted during
own agendas. They understand what too the holiday season, the Interior Department
few of us have yet to realize — elections quietly issued an order seizing authority to
don't matter when regulatory designate public lands as "wild lands," which
agencies can be used to could have a profound impact on domestic
implement policy. energy development. That same day, the
An alphabet soup of agen- EPA announced that it would soon begin
cies — not legislatures — drawing up anti-carbon regulations on oil
have emerged as America's refineries and power plants, regardless of
true center of policy-making the wishes of Congress. Is it any wonder
Daniel J. Popeo power. Lacking sympathy for that heating and auto fuel prices continue to
Chairman its ideological campaign in rise?
Washington the legislative branch, a The common thread here is that activists
Legal Foundation
shadow government seeks to are using regulation and litigation as surro-
impose its radical policies not through the gates to advance unpopular causes. Indeed,
democratic process, but through an unac- nearly every aspect of the American econo-
countable regulatory system of unelected my is caught in a vortex of unchecked legal
bureaucrats. shakedowns and silently imposed federal
Take, for instance, the Treasury rules. So far, courts
Department's proposal to give a $1.6 billion haven't effectively Rule of the
tax deduction to lawyers bringing lawsuits on limited this abuse of
a contingency fee basis. For years, trial our legal system. unelected
lawyers had lobbied Congress for such a Now, more than
subsidy, but when that failed they decided to ever, there is an enormous need for trust-
THE NEW YORK TIMES OP-ED MONDAY, JANUARY 24, 2011

bypass elected officials and focus their atten- worthy free enterprise legal advocacy and
tion on unelected bureaucrats. education.
Meanwhile, other activists, cashing in on Simply put, an avalanche of regulations
their ties to state attorneys general, have cannot address broad, complex controver-
sued the nation's leading energy providers sies. And the victims of lawmaking by regu-
under a "nuisance" theory to impose eco- latory fiat are not only the targeted business,
nomically destructive controls on carbon but the very workers, consumers, and share-
emissions. Although Congress has repeat- holders whom government bureaucrats
edly refused to implement such controls, an claim to be protecting. Ultimately, however,
entire sector of the economy operating law- a government by bureaucrats and lawyers
fully under state and federal environmental can never be a government of, by, or for the
permits is now being threatened with tort lia- people.
bility for perfectly legal carbon emissions.
Although Congress has authorized the
FDA to determine what drugs are safe and
available, federal Medicare regulators have
recently begun denying Medicare and
WA S H INGTON LEGAL FOUNDATION • 2009 M A SSA C H U SET T S A VE., N W • W A SH IN GT ON , D C 20036 • http://www.wlf.o r g
In All Fairness is pr o d u ced t h r o u g h W L F ’s C ivic C o m m u n icat io n s Pr o g r am .