Today, the 80,000-plus pages of federal regulations reveal the extent to which Congress has surrendered its lawmaking power to the administrative state. (Graeme Jennings/Washington Examiner)
Senator Lee and other members of Congress see this disparity as indicative of not just a growing government, but an erosion of the separation of powers. They are correct. When James Madison authored Federalist 47, he gave voice to a sentiment shared widely by the Founders: consolidating executive, legislative, and judicial power into one entity is "the very definition of tyranny."
To preserve self-government, the Constitution separated those powers into three branches. As new laws may restrict liberty, separated power ensures that one faction of society cannot run roughshod over another. Debate, compromise and consensus should ensure that any new regulations are enacted with wide public agreement.
Today, the 80,000-plus pages of federal regulations reveal the extent to which Congress has surrendered its lawmaking power to the administrative state. With one-sentence delegations to agencies, telling them to regulate "in the public interest," Congress has given bureaucrats a free hand to craft rules regulating much of the economy and daily life.
Vague delegations of power remove public accountability from government regulation. For example, in delegating EPA regulatory power through the Clean Air Act, congressmen can say they voted for "clean air." But, when EPA issues a controversial regulation, those same members may try to disown it by saying they did not do it. Consequential, long-term policy choices may now be made by agencies, instead of by the people's representatives, leading to regulations on the Internet, greenhouse gas emissions, and mobile technology, even when Congress had none of these issues in mind when it passed the applicable delegating statute. Broad delegation to the administrative state allows Congress to surrender "check and balance" in exchange for "pass the buck."
Congress is not the only branch to surrender its power. Through judge-made deference doctrines, courts allow agencies to effectively make law. Judges even defer to agency rules about how agencies make rules — letting them circumvent public notice requirements, ultimately blocking the public out of the rulemaking process. When agencies then sue citizens before their administrative law judges for violating their rules, courts will defer to ALJ determinations — even as numerous ALJs report being pressured to side with their respective agency, and many of the procedural protections of courts do not apply. The rights of citizens to hold their leaders accountable to fair legal processes and to have a voice in lawmaking are sacrificed in the name of agency "efficiency" and "expertise."
In a new book Liberty's Nemesis: The Unchecked Expansion of the State, we outline the scope and source of this problem, and we propose solutions. We explain that the foundational premises of the administrative state are meant to supplant the Constitution's separation of powers. Progressives grew the administrative state, reasoning that self-government is too primitive to face modern life. Then, having succeeded in tearing down constitutional accountability to the people, the agencies can do work outside the public's eye. They can, for example, engage in judicially-enforced settlements, promising to use power Congress never gave them to make regulations that may not be allowed by the laws Congress passed. Not even political elections that change an agency's leadership are potent enough to stop these processes. In short, agencies have figured out how to circumvent democracy, and Congress has let them do it.
Leadership is needed to return power to the people's representatives. Senator Lee is right to be concerned about congressional abdication to agencies, and the "Article One Project" that he and several of his colleagues are inaugurating is a commendable step. In Liberty's Nemesis, we set forth the concrete executive, legislative and judicial proposals needed to reform both interagency actions and reverse the loss of public accountability. It is not too late to reclaim self-government, but if we want our Republic, we have to keep it — the "experts" have proved they will not.
Former Congressman David McIntosh represented Indiana's 2nd district. He is the president of the Club for Growth, the country's leading free-enterprise advocacy group and a co-founder of the Federalist Society for Law and Public Policy and serves on the Board of Directors. William J. Haun is a lawyer in Washington, DC. The views expressed herein are only those of Mr. Haun and his co-author.
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