Here’s a question that will be important throughout 2012 and probably for many years beyond: What did the Dodd–Frank financial regulation accomplish?
The best answer is: “We don’t know.” Because in a very real way most of this law, passed almost two years ago, hasn’t been written yet.
How’s that possible? Well, despite the fact that Dodd–Frank runs to hundreds of pages, it isn’t a complete law that people can read and abide by. “Laws classically provide people with rules. Dodd-Frank is not directed at people,” Jonathan Macey of Yale Law School told The Economist. “It is an outline directed at bureaucrats and it instructs them to make still more regulations and to create more bureaucracies.” Instead of making the law, Congress is ordering bureaucrats to do so.
And those bureaucrats are far behind in their rulemaking process. The law firm Davis Polk says that two-thirds of the bill’s deadlines have been missed as of June 1. Only about a quarter of its 398 total required rulemakings are finalized. More than a third of its rulemaking requirements haven’t even been proposed yet.
It goes without saying that people and businesses can’t obey rules and regulations that haven’t been written yet. But there’s a constitutional concern here: Congress simply doesn’t have the power to outsource its lawmaking in this fashion.
“The Constitution creates three branches of government, yet administrative agencies and vast bureaucracies operate in practice as a headless fourth branch,” Heritage Foundation scholar Matthew Spalding writes in his new book Changing America’s Course. “Congress should reassert its authority as the nation’s legislature by refusing to delegate its power to bureaucrats and taking responsibility for all the laws (and regulations) that govern us.”
There’s another problem. As Congress has tried to hand off its responsibilities, the number and scope of regulations are growing by leaps and bounds and threaten to strangle the American economy. “During the three years of the Obama Administration, a total of 106 new major regulations have been imposed at a cost of more than $46 billion annually, and nearly $11 billion in one-time implementation costs. This amount is about five times the cost imposed by the prior Administration of George W. Bush,” write Heritage scholars James Gattuso and Diane Katz in their latest Red Tape Rising report.
To address both problems, lawmakers should:
- Roll back specific burdensome and onerous regulations, including Obamacare, Dodd–Frank, Federal Communications Commission regulation of the Internet, and costly energy restrictions.
- Require congressional approval of new major rules promulgated by agencies, as such a system would ensure both a congressional check on regulators and the accountability of Congress itself.
- Create a Congressional Office of Regulatory Analysis, so lawmakers could review proposed and existing rules independently without reliance on the Office of Management and Budget or the regulatory agencies.
- Establish a sunset date for federal regulations. The natural bureaucratic tendency is to leave old rules and regulations in place even if they have outlived their usefulness. To ensure that substantive review occurs, regulations should automatically expire if not explicitly reaffirmed by the agency through a notice and comment rulemaking.
It’s time for Congress to reassert its constitutional power to make law.