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Government Without Representation

By: Glenn F. McConnell, SC Lieutenant Governor
web posted January 16, 2013

GUEST OPINION – In 1773, in Boston Harbor, patriots dumped tea into the water in protest over the English tax that had been imposed upon them. This iconic American event put into perspective a principle that would later be reflected in our Constitution -- no taxation without representation. When the U. S. Constitution was adopted, it left the power to make laws solely in the legislative branch and kept that power distant from the executive branch. In that way, no tax or law would be imposed upon the public except through their elected representatives. The same principle is reflected in South Carolina's Constitution.   

Now, let us fast forward to the 21st century.  As the legislative process evolved over time, laws were passed to authorize state and federal agencies to promulgate regulations to implement the mandates of certain other laws.  In South Carolina, these regulations go into effect after 120 days; in the federal system, they generally go into effect 60 days after submission to Congress.  In both cases, all regulations can go into effect automatically, without the affirmative vote of your elected representatives.  These regulations promulgated by bureaucrats have the full force and effect of law and can also impose fees on the public.  "Fees" is a modern term for tax.

The reality is that regulations impact many elements of people's private lives or businesses.  Those who oppose regulations have little chance through the legislative process of getting them disapproved because they go into effect before time can be found to vote on them.

Let me give you an example of the most recent incident with regulations.  When the new session of the General Assembly started, DHEC filed regulations for home caregivers.  These are people who provide basic services to people with disabilities or challenges such as assistance in dressing, going to the bathroom, cleaning the house, or being mobile in their own house.  A  statute was passed to require background checks of home care providers and to require Workers' Compensation Insurance coverage in the event of an injury.  The statute authorized DHEC to promulgate regulations to implement these requirements of the statute.  DHEC, instead, proposed regulations that went far beyond what the statute intended.  It involved such things as requiring the workers to record how much bathroom assistance they give a client as well as record other data identified in the regulation as "allergies, pets, etc."  What in the world is "etc." other than the limits of the bureaucrats' minds?  Then, on top of that, the regulations required that these records be kept for six years.  Additionally, the type of assistance to be provided clients would be designed more by the bureaucrats at DHEC rather than the clients' wishes.  The regulations also gave DHEC inspectors access to people's homes to verify compliance.  All of this would take effect with the full force of law and would include an initial $1,000 license fee the first year plus an $800 renewal fee each year, plus fines if you do not comply with the regulations as determined by DHEC.  In a nutshell, this is not only taxation without representation but government without representation.

Over the decades, we have heard from those who consistently call for limited government.  But little is said about the broad grants of regulatory power given the executive branch both at the state and federal level.  This current system allows the invisible growth of government.  Shortly before I became Lieutenant Governor, as a Senator, I supported a bill  that would have required an affirmative vote by the General Assembly.  Sadly, this bill was not taken up in the last session.  Since becoming Lieutenant Governor, I have had an opportunity to tour this State and see just how broken the regulatory system is.  Common sense is lacking.  I have encountered a residential assisted living facility cited for regulatory violation because a lady had a can of hairspray in a private apartment.  In another facility, an adult daycare, the facility could not extend the same service with the same personnel an additional day a week without going through a series of bureaucratic hoops.  At another facility, a sidewalk essentially to nowhere was required to comply with regulations.

This latest submission of regulations by DHEC energizes me to speak out to the people of South Carolina.  They should demand that their representatives on the federal and state levels insist that any regulations taking the people's money and posing undue burdens on them and our society not take effect unless the elected representatives of the people approve it.  It is incompatible to limited and responsive government for agencies to impose their will, increase their budgets, and fee the public by the promulgation of regulations that never require an affirmative vote of the elected representatives of the public.  Until such a change is made, we will have a constant march toward ever more bureaucratic government in South Carolina and the United States.

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