Over the past eight decades, Congress has gradually relinquished its lawmaking role and left it to the administrative state, said a conservative senator at a Capitol Hill event on Wednesday.
“Many Americans now feel that they are not in control of their own government,” Sen. Mike Lee, R-Utah, said during an event hosted at the Federalist Society’s fifth annual Executive Branch Review Conference. “The administrative state is designed to be insulated from the will of the people.”
The Utah senator said that one way he is working to combat this phenomenon is through an initiative he has started called Article One Project.
“Our goal is to develop and advance and hopefully enact an agenda of structural reforms that will strengthen Congress by reclaiming the legislative powers that have been ceded to the executive branch,” Lee said.
Lee said that lawmakers are to blame for the shift in power.
“We are not, in fact, the victims, we are the perpetrators,” Lee said, adding:
We have done this willfully because it makes our job easier. It is a whole lot easier and less politically risky to have somebody else do the lawmaking than it is to do the lawmaking yourself.
There are several pieces of legislation, Lee said, that could help address executive overreach.
1.) REINS Act
The REINS Act, which has passed the House but has yet to pass the Senate, would make progress in regaining ground Congress has lost, Lee said.
This proposed law would require both congressional and presidential approval of major rules, which “have an economic impact of $100 million or more,” Rep. Doug Collins, R-Ga., wrote in a recent op-ed.
“Under this law, the specialized know-how within each agency would still be allowed to contribute to the regulatory process,” Lee said.
“But ultimately, Congress would be responsible for every major regulation that went into effect. This would make it easier for American voters to know who to blame for bad policies. As things currently stand, lawmakers can have it both ways.
2.) Separation of Powers Restoration Act
The second piece of legislation Lee suggested to help restore congressional authority is the Separation of Powers Restoration Act, which has passed the House in 2016.
In a 2016 op-ed in The Hill, Rep. John Ratcliffe, R-Texas, warned that “The practice of administrative agencies engaging in de facto ‘lawmaking’ was exacerbated by a 1984 Supreme Court decision, [Chevron U.S.A., Inc. v. Natural Resources Defense Council], which determined that courts must defer to agencies’ interpretation of ambiguous laws as long as their interpretation is deemed ‘reasonable.’”
The Separation of Powers Restoration Act, which Ratcliffe has introduced in the House again this year, would “[reverse] the 1984 Supreme Court decision that established the ‘Chevron doctrine,’ placing the power to determine ambiguous laws back into the hands of the judiciary.”
“The bill would end the dysfunctional status quo that tilts the legal playing field in favor of bureaucrats who pass the legislation to [place] federal law in the hands of legislators and the power to write and judges power to interpret just as the Constitution,” Lee said.
3.) Agency Accountability Act
The third piece of legislation, the Agency Accountability Act, will do exactly what its name implies, Lee said, and will hold agencies accountable.
The act, which has been introduced in the House, would “make federal agencies accountable … by directing most fines, fees, and unappropriated proceeds to the Treasury instead of letting federal agencies keep the money and then spend it as they see fit,” the Utah senator said.
Right now “agencies have the ability to use funds received through fines, fees, and proceeds from legal settlements without going through the formal appropriations process, thus avoiding congressional oversight,” according to a report from The Heritage Foundation’s Justin Bogie, a senior policy analyst in fiscal affairs.
If signed into law, this legislation would help restore Congress’ role in overseeing how money is spent, Lee said.
“You see the Constitution has this pesky little provision that … Congress has the power and the responsibility to direct spending of federal dollars. The power of the purse is one of Congress’ most potent tools for controlling bureaucracies,” Lee said.
While Lee said that many Americans feel like they have lost control of their government, legislation like the Agency Accountability Act would be a remedy.
“Passing the Agency Accountability Act will go a long way in putting Congress, and by extension, the American people, back in charge of the federal bureaucracies and specifically, the way they spend money,” Lee said.
Lee urged Congress to act.
“If we are able to pass even one of these legislative proposals … then we will have made real progress toward listening to the people and making sure that our government itself has to listen to the people,” Lee said, adding:
If we can pass all three bills, it would constitute a fundamental, generational shift of power in the country, a shift of power back to the people.