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Romney Campaign Press Release - MEMO: The Federal Judiciary On President Obama's Hostility To Job Creators

May 30, 2012


To: Interested Parties

From: Lanhee Chen, Ph.D., Policy Director

Re: The Federal Judiciary On President Obama's Hostility To Job Creators


"Confused," "heavy-handed," "illogical," "incomprehensible," "internally inconsistent," "unacceptable," "unjustified," "unreasonable," and "unutterably mindless."

— Federal Judges on the Obama Administration's Treatment of Job Creators

President Obama's hostility toward job creators has taken many forms. His rhetoric, his appointments, his policies, and now his relentlessly negative campaign — devoid of substance but full of attacks on free enterprise — have all sent a clear signal that he does not understand how the economy works and that he sees only more government as the solution to the high unemployment and low growth that have plagued his presidency.

Job creators in the private sector caught on to this hostility long ago, though their concerns too often fell on deaf ears. More recently, with the President now paying to broadcast his disdain for free enterprise on network television, even the media have taken notice and many Democrats are beginning to recoil. Through it all, one group has been keeping close tabs on the most inexplicable and inexcusable actions taken by President Obama and his Administration in pursuit of their agenda: the federal judiciary.

Not a group known for launching scathing political attacks, federal judges (including those appointed by the President himself) have repeatedly leapt to the defense of the private sector and rebuked the Obama Administration for its maneuvers. Federal courts have held the Administration in contempt, ridiculed it, and used phrases like "unutterably mindless" to describe its overregulation. As bad as the President's policies have been, there is perhaps no greater evidence of his outright hostility to job creators than his apparent disregard for the rule of law.

Gulf Moratorium: "Government's Determined Disregard ... Showcases Its Defiance."

Hornbeck Offshore Services v. Salazar, 696 F. Supp. 2d 627 (E.D.La. 2010).

Hornbeck Offshore Services v. Salazar, No. 2:10-cv-01663-MLCF-JCW (E.D.La. Feb. 2, 2011).

Ensco Offshore Co. v. Salazar, 781 F. Supp. 2d 332 (E.D.La. 2011).

President Obama and Secretary of the Interior Ken Salazar have used the Deepwater Horizon disaster as pretext for attempting to shut down energy development in the Gulf of Mexico. Shortly after the disaster they imposed a six-month moratorium on Gulf drilling, based on recommendations which they falsely claimed were "peer-reviewed by seven experts identified by the National Academy of Engineering." A federal judge found that claim "misleading" and "factually incorrect." In fact, "five of the National Academy experts ... [had] publicly stated that they 'do not agree with the six month blanket moratorium.'"

The judge rejected the moratorium as "confused," "incomprehensible," "heavy-handed," and "overbearing." But soon the parties were back in court because the Obama Administration not only "reimpose[d] the blanket moratorium" but engaged in "dismissive conduct" that "showcase[d] its defiance" and provided "clear and convincing evidence of the government's contempt" for the court's prior ruling. The Administration was held in contempt, and even ordered to pay the other party's attorney's fees. Still the Administration pressed on, and proceeded to impose a de facto moratorium by simply refusing to issue permits for new energy development. Back in court yet again, the judge rejected the Administration's actions as "unreasonable, unacceptable, and unjustified."

Through these repeated actions in direct contravention of federal law and the orders of a federal court, President Obama succeeded in cutting oil production in the Gulf by 500,000 barrels per day and eliminating as many as 90,000 jobs. The U.S. Gulf is the only offshore production area in the world that has fewer rigs than a year ago, and its utilization rate is significantly below that of other regions. Beyond the immediate effects for our economy and our energy security, the President sent a clear signal to investors and job creators that neither federal law nor the direct orders of federal courts would protect them from his political agenda.

Spruce Mine Permit Withdrawal: "Stunning Power For An Agency To Arrogate To Itself."

Mingo Logan Coal Co. v. EPA, No. 10–0541 (ABJ) (D.D.C. Mar. 23, 2012).

President Obama's efforts to shut down the coal industry stretch all the way back to his 2008 campaign, when he promised to "bankrupt" anyone attempting to build a new coal-fired power plant. Notwithstanding the inclusion of coal on his "all-of-the-above" energy wheel, he apparently believes that his regulatory assault on the industry has succeeded: in one recent EPA filing, the agency projected that no new plant will ever be built.

Not content with simply destroying the future prospects of the industry, his Administration took the unprecedented step of attempting to withdraw a coal mining permit that had already been issued. That effort landed in a federal court in Washington, where a judge appointed by President Obama himself issued what the New York Times called both "a scathing decision" and "a sharp rebuke." The judge reprimanded the Administration for its "magical thinking" and for claiming that it could legally withdraw a permit, which she called "a stunning power for an agency to arrogate to itself."

Still seeking authority to exercise such "stunning power" over the private sector, the Obama Administration is actually choosing to appeal the ruling.

Dodd-Frank Rule: "Internally Inconsistent ... Unutterably Mindless ... Unacceptable."

Business Roundtable v. SEC, 647 F.3d 1144 (D.C. Cir. 2011).

Of course, the President's hostility toward job creators extends well beyond the development of our nations' energy resources. As the thousands of pages of Dodd-Frank regulations slowly spread across the economy, his Administration has violated the law by failing to even consider the costs it was imposing on the economy. Recently, a three-judge panel from the Court of Appeals for the D.C. Circuit unanimously reprimanded the President's Securities and Exchange Commission "for having failed ... adequately to assess the economic effects of a new rule."

The judges found that the Commission had "acted arbitrarily and capriciously" and "contradicted itself." While one might think that the costs faced by companies in complying with Dodd-Frank would be an important consideration for the President and his team when fashioning its regulations, here the court found that the Administration "did nothing to estimate and quantify the costs it expected companies to incur." Instead, the Administration's analysis was "internally inconsistent," "unutterably mindless," "illogical," and "unacceptable." Suffice to say, the court threw out the proposed regulation.

Union Organizing Rule: "Contradicts ...The Supreme Court ... And Common Sense."

Chamber of Commerce v. NLRB, Civil Action No. 11-2262 (JEB) (D.D.C. May 14, 2012).

The National Labor Relations Board has been yet another front in President Obama's efforts to reward his political allies at the expense of job creators. The President is a vocal supporter of Card Check legislation that would impose union control on businesses and workers without even allowing the workers to vote by secret ballot. While that proposal stalled in Congress, the President has fulfilled his promise to "play offense for organized labor" by appointing union cronies to the NLRB where they can reward labor bosses and pressure employers.

Most recently, the NLRB attempted to impose a "quickie election" rule that would force votes on unionization within only a few days of a business owner even learning that an organizing campaign was under way. By preventing the business owner from explaining the potential downsides of a union to employees, the goal was to make the "vote" a foregone conclusion that the union was guaranteed to win — essentially Card Check in disguise. The only problem? The NLRB could only muster support from two of its members in favor of the proposal, when three are required to impose such a regulation. Undeterred by the law, the Board attempted to implement the regulation anyway.

Unsurprisingly, this move landed the government back in federal court yet again. And once again, an Obama-appointed judge sided with the private sector. The judge said that this effort to impose the regulation would render the law "meaningless" and found that the action by the President's appointees "contradicts the clear pronouncements of the Supreme Court as well as common practice (and common sense)." Given the egregious procedural manipulation used to implement the regulation, the judge did not even have to address the question of whether the Board could legally deprive workers of the opportunity to become fully informed about the costs and benefits of unionization.

* * *

The victims of President Obama's apparent disregard for the rule of law are not just the companies that find their investments frustrated and their time and resources consumed to vindicate their rights in court. They are also the countless business owners who must now operate in fear that they might be targeted next, and the potential job creators who are discouraged from starting businesses at all. Most importantly, they are the millions of unemployed Americans who must continue to search for work in the atmosphere that the President has created.

Mitt Romney, Romney Campaign Press Release - MEMO: The Federal Judiciary On President Obama's Hostility To Job Creators Online by Gerhard Peters and John T. Woolley, The American Presidency Project

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