We at CFIF often highlight the clear and present danger that drug price control schemes pose to American…
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New Lung Cancer Breakthrough Illustrates the Potential Peril of Drug Price Controls

We at CFIF often highlight the clear and present danger that drug price control schemes pose to American consumers, who benefit from our private pharmaceutical sector that leads the world - by far - in innovation.  A new lung cancer treatment breakthrough in the form of Amgen's Lumakras illustrates that interrelationship.

Simply put, Lumakras reduced the risk of progression by 34% compared to chemotherapy in patents with advanced lung cancer, which is particularly welcome considering lung cancer's especially low survival rate (18.6% over five years, and just 5% for advanced forms).  The breakthrough required years of research and enormous amounts of investment, however, which The Wall Street Journal notes makes Lumakras the type of innovation put at risk by new drug price controls…[more]

September 22, 2022 • 05:06 PM

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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.

Quiz Question   
Which one of the following U.S. Presidents signed the executive order establishing the Federal Emergency Management Agency (FEMA)?
More Questions
Notable Quote   
 
"Now they tell us. We're referring to the Congressional Budget Office, which finally rolled in Monday with its cost estimate for President Biden's unilateral student-loan write-down: $420 billion. ...The cost of Mr. Biden's unilateral extension of the moratorium on student loan payments for another three months through December will be $20 billion. But that's a bargain compared to the $400 billion…[more]
 
 
—The Wall Street Journal Editorial Board
— The Wall Street Journal Editorial Board
 
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