How to Fight the Bureaucratic State
Is there anything more clear in the Constitution than the fact that “All legislative powers herein granted shall be vested in a Congress of the United States”? Nevertheless, there are currently about 23,000 pages of federal laws passed by Congress and almost 80,000 pages of regulations by executive bureaucracies.
Until recently, no one seemed to care. But in 2010, House Republicans appealed to the rising Tea Party movement by pledging to “require congressional approval of any new federal regulation that has an annual cost to our economy of $100 million or more.” In 2011, Rep. Geoff Davis introduced just such a bill, the “Regulations from the Executive In Need of Scrutiny” (REINS) Act, passed the House with the support of all 237 Republicans, and four Democrats. But President Barack Obama pledged to veto it, and a similar bill sponsored by Sen. Rand Paul died in the Democratic Senate.
Congress, of course, has always been able to override bureaucratic rules even without REINS. However, as Heritage Foundation’s James Gattuso has noted, the process is cumbersome. To try and address this, Congress adopted “expedited resolutions of disapproval” in 1996, to encourage up-or-downs vote to reverse counterproductive bureaucratic regulations. Since that time, however, Congressional reluctance to override the president and the politicians’ fears of taking responsibility for controversial regulatory acts has resulted in only one such disapproval passing Congress, allowing all other rules to go into effect. REINS is aimed at forcing legislative responsibility by requiring every rule with a large economic impact to be obtain specific approval from each house, without which the regulation would never go into effect.
With newfound Republican control of the Senate following the 2014 elections, there has been a renewed interest in passing such a bill. Of course, President Obama would still veto it and Democrats will make it very difficult to corral the 60 votes needed to pass the Senate. With this solution stymied, top regulatory expert Wayne Crews proposes creating a bipartisan commission to identify regulations that must be voted upon by Congress to remain in effect. Even that has met substantial opposition, including from some frightened Republicans.
Substantive objections to requiring Congressional approval are few and weak. The best that the progressive Center for Effective Government could do was to warn that this would allow Congress to “second-guess agency expertise and science on food safety, worker safety, air pollution, water contamination, and a host of other issues.” But even disregarding the fact that bureaucratic expertise in these areas is often more in the promise than in performance, is not voting on such issues precisely what the Founders expected Congress to do?
As Crews notes, the number of federal regulations has been exploding. “While an utterly imperfect gauge, the number of pages in the Federal Register is probably the most frequently cited measure of regulation’s scope, which unintentionally highlights the abysmal condition of regulatory oversight and measurement. At the end of 2014, the page count stood at 78,978, the fifth highest level in the Register’s history.” He estimates the real cost (mostly hidden in “guidance’ and sotto-voice threats) could be higher than the formal debt of $18 trillion.
In an important Frazer Institute essay published in What America’s Decline in Economic Freedom Means for Entrepreneurship and Prosperity, Crews notes the baleful results:
An astounding 92 million Americans are not working, positioning labor-force participation at a 36 year low, with nearly 12 million having dropped out during the Obama administration. Data point to high debt per capita, and to the highest part-time and temporary-job creation rates in contrast to full-time career positions. A popular blog laments the “slow death of American entrepreneurship” Headlines tell painful tales, like that of January 2015 in Investor’s Business Daily reporting on businesses dying faster than they’re being created, a circumstance the Washington Post had noted in 2014. Likewise a Brookings study on small business formation noted declining rates, as did a Wall Street Journal report on reduced business ownership rates among the young. One recruiter described to the Wall Street Journal how regulations undermine employment, while others point to an inverse correlation between regulation and innovation.
The World Economic Forum’s “burden of government regulation” places the U.S. 87th most onerous of 144 nations globally on complying with administrative regulations on business.
Indeed, Supreme Court Justice Clarence Thomas has recently questioned the entire logic and wisdom of regulatory delegation. First, in Perez v. Mortgage Bankers, he asked whether the Court’s precedent in Seminole Rock, requiring judicial deference to executive interpretation of regulations, improperly “represents a transfer of judicial power to the Executive Branch.” He says that decision “precludes judges from independently determining” the meaning of laws and unfairly favors the executive against the legislative branch in interpreting the law.
In Department of Transportation v. Association of American Railroads, Thomas even demanded judicial review of the Court’s whole existing standard, which delegates rulemaking to the executive as long as there is an “intelligible principle” in the law to guide the executive. Thomas argues, to the contrary, that that principle has become “boundless” today, undermining the original constitutional understanding of legislative power.
Pretty much everyone knows the regulatory system is broken and probably unconstitutionally so; but nothing ever changes. The executive loves to boss folks around, Congress is afraid to act, and the courts are so isolated they actually think the regulators know what they are doing.
Just in time to prevent despair, however, the nation’s most inventive social scientist, Charles Murray, has written another ground-breaking book, mischievously titled By the People: Rebuilding Liberty Without Permission. Murray concludes that the government is incapable of changing its ingrained irresponsibility, so he suggests that reform should be initiated by the people themselves.
Murray starts with the fact that there are so many federal regulations on so many daily behaviors that it is impossible for the regulators to enforce them. The traffic police can issue tickets on rural roads, but they cannot enforce reasonably-over-the-speed-limit driving on crowded highways. It is the same with regulators. They can only effectively police when few disregard the rules. They can then come down good and hard on them. Most settle without a trial, knowing that bureaucratic courts are rigged against them. Murray would create a Madison Fund named for the father of the Constitution to provide legal assistance to the public, which is encouraged to simply ignore the screwiest regulations. If Americans refused to obey irrational regulations and were backed by an insurance-like fund that would provide legal support to, and publicity for, those unreasonably harassed, regulators themselves would soon learn not to enforce indefensible rules.
Murray believes it would only take a few wealthy contributors to get the Fund established, and that trade associations might get into the business too. Congress might even find enough courage to act constitutionally, if enough people get involved. There are many devils in the details, but sign me up anyway.
Donald Devine is senior scholar at the Fund for American Studies, the author of America’s Way Back: Reclaiming Freedom, Tradition, and Constitution, and was Ronald Reagan’s director of the U.S. Office of Personnel Management during his first term.