The United States is a republic with decision-making power held by elected legislators representing the people. Yet many of the biggest decisions affecting the lives of Americans are made by unelected bureaucrats.
In recent years, we have seen the administrative state going to levels never seen before, making decisions that Congress never told bureaucrats to make. This includes the Biden administration continuing its student loan forgiveness efforts, the Centers for Disease Control and Prevention’s nationwide eviction moratorium, and the Environmental Protection Agency’s final rule to help kill off gas-powered cars.
The EPA car rule helps illustrate the extent of the problems. It’s a shocking attack on freedom to try and limit what cars people can drive, and it’s ludicrously expensive. The agency’s projected compliance cost of the rule is a whopping $760 billion. To put this cost in context, the projected cost of the 2009 stimulus bill, the American Recovery and Reinvestment Act, was $787 billion.
Therefore, the EPA, without Congress speaking on whether it wants the agency to impose such a major change in policy, is imposing compliance costs in this one rule roughly equivalent to the cost of one of the biggest pieces of legislation passed by Congress in our history.
The modern administrative state has been a serious problem long before the Biden administration, though. It has undermined our republican form of government with executive branch bureaucrats often serving as the prime decision-makers rather than our elected representatives. Early 20th-century progressive leaders like President Woodrow Wilson who helped assemble the administrative state were bent on advancing executive branch expertise and power. In fact, Wilson himself had a shocking disdain for voters and specific groups of citizens.
Our country is looking more like the nation envisioned by Wilson and less like the republic envisioned by the Framers of the U.S. Constitution. Therefore, we must restore representative government. And reform must start with Congress, which created the agencies and the rulemaking process in the first place.
Reform is never easy. Plenty of people want to keep power within the agencies and give them a blank regulatory check to aid the ideological ambitions of those who seek greater governmental control. However, one important solution isn’t difficult: Congress should establish in law some boundaries for agency power.
For example, Congress should prohibit agencies from issuing rules outside their demonstrated regulatory expertise, unless clearly authorized to do so. After all, one of the biggest justifications for agency rulemaking is the alleged expertise of agencies. If they don’t have the expertise on certain issues, then it follows that Congress didn’t want them to promulgate rules on those matters.
That’s common sense, as are many other boundaries. For example, absent clear authority from Congress, it would be absurd to think lawmakers wanted agencies to equate shutting down businesses with regulating them, as the EPA is doing with its new power plant rule. The rule is creating infeasible requirements that necessarily will lead to plant closures.
It would also defy common sense to think Congress, without saying so clearly, is OK with an agency banning or limiting the availability of certain types of goods, such as cars; reshaping an entire industry; or doing an end-run around Congress because it’s tired of waiting on legislators to pass a law. Therefore, legislators should make it clear that such rules are prohibited unless clearly authorized by law.
It’s helpful that the judicial branch has recently put some limits on agency rulemaking power. In Loper Bright v. Raimondo, the Supreme Court got rid of what was known as the Chevron doctrine, which was a judicial creation that required courts to give deference to agencies’ often expansive interpretations of ambiguous laws they administer. This helped to make it easier for agencies to achieve their policy objectives by favoring bureaucrats over the people challenging the agencies in court.
Now that this favoritism is gone, it should make it tougher for agencies. However, make no mistake, it won’t stop sweeping and egregious rules, in part because legislation often provides vague or general authority to agencies that they can take advantage of, even if it is obviously inconsistent with congressional intent.
More relevant to putting a stop to sweeping rules is the “major questions” doctrine. The Supreme Court has said there are “extraordinary cases … in which the ‘history and the breadth of the authority that [the agency] has asserted,’ and the ‘economic and political significance’ of that assertion, provide a ‘reason to hesitate before concluding that Congress’ meant to confer such authority.” In these instances, an agency must have a “‘clear congressional authorization’ for the power it claims.”
Even with the existence of the major questions doctrine, new legislation from Congress is required because a congressionally passed law can provide clear prohibitions of agency actions and far more comprehensive protection from agency abuses than the judicial branch. Statutory language should serve as a first line of defense against agencies ignoring the will of Congress and, thereby, the will of the voters.
When asked what kind of nation the Framers of the Constitution created, Benjamin Franklin answered, “A republic, if you can keep it.”
If we are going to keep our republic, then we need Congress to step up with major reforms to stop the abuses of the administrative state.
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