In many ways, Obamacare clarified the problem of the administrative state. Congress routinely writes vague laws, delegating its authority to bureaucrats who make detailed regulations covering every aspect of our lives: from the light bulbs we use to the health care coverage we purchase. In passing Obamacare, Congress transferred important aspects of its legislative authority to various administrative agencies. Obamacare created a multitude of new federal agencies and empowered unelected, unaccountable bureaucrats to write detailed rules controlling one-sixth of the economy. This terribly unpopular law led millions of citizens to ask of themselves and their neighbors: Are we citizens in a constitutional republic or subjects of the administrative state?
Then the elections came. Americans went to the polls and voiced their opposition to the health care overhaul. But is it too late for Congress to roll back the administrative state? Drawing on a recent Center for American Studies scholars’ conference on that topic (look for more papers to come), Robert Moffit offers six steps for Congress to roll back the administrative state.
Step #1: Stop expanding the administrative state.
Legislative power is not Congress’s to give away. The administrative state expands when Congress delegates its authority to an agency to create regulations. Congress can starve the administrative state by doing its constitutionally mandated job of writing legislation clearly and concisely.
Step #2: Bring back formal rule-making.
The process by which rules and regulations are made also deserves Congress’s attention. The Administrative Procedures Act of 1946 categorized federal rule-making processes as formal or informal. The formal rule-making process requires the presentation of evidence, an oral hearing before an administrative law judge, the right of contending parties to present opposing cases, and that the public record of the proceedings be the exclusive basis for the regulatory decision.
By contrast, informal procedures simply require the agency to give notice of its intention to propose a rule, receive comments in writing from interested parties, and issue a statement of the rule’s basis and purpose if one is issued. It is no surprise that the informal process of mere “notice and comment” creates opportunities for backroom deals and special-interest lobbying. Congress should, therefore, require formal rule-making in order to increase accountability to the people and to restore the public’s trust in a process that is increasingly seen as arbitrary and abusive.
Step #3: REIN in regulation.
Congress currently has the power under the Congressional Review Act of 1996 to make rules null and void. Before a rule goes into effect, an agency must submit it to Congress. Congress may, in turn, enact a joint resolution of disapproval for an agency’s rule, thereby vetoing the rule. In practice, federal agencies circumvent Congress’s authority by failing to submit the appropriate rules to Congress.
Should the Regulations from the Executive in Need of Scrutiny (REINS) Act pass, Congress would take a greater responsibility in enacting regulations. Regulations would only take effect if approved by both houses and signed into law by the President. Thus, any issue of controversy over the rules would become a highly visible public policy question to be settled in open debate and in broad daylight.
Step #4: Strengthen congressional oversight of rule-making.
Congress can exercise its oversight authority to investigate the regulations. The purpose of congressional hearings and investigations is to gather useful information to make substantive policy changes through legislation. They do not have to be about merely embarrassing public officials. Congressional oversight into the rule-making process restrains the arbitrary exercise of power by the administrative state.
Step #5: Establish internal mechanisms for regulatory review.
Congress could create an independent body to review regulations. Similar to the Congressional Budget Office, a Congressional Office of Regulatory Review (CORR) would report on the estimated costs and effects of the federal regulatory authority embodied in bills that come before Congress. Alternatively, Congress could establish a Joint Committee on Regulatory Review to monitor the regulatory activities of federal agencies and departments and independent agencies: a body that would hold hearings, hear testimony, and assess the effect of federal rules on business and the economy.
Step #6: Protect citizens against regulators.
Regulations harm individuals and organizations. Using its oversight authority, Congress can hold federal agencies responsible for enforcing faulty, abusive, or arbitrary applications of federal rules. Congress should waive sovereign immunity for federal agencies in certain areas of regulatory enforcement, enabling wronged citizens to recover damages from abusive or incompetent agency actions.
Since the 20th century, the rule of law has been eroded and replaced with the rule of regulators. But in 2010, voters gave Congress permission to roll back the administrative state that Obamacare greatly expanded. Congress does not need to wait for the judiciary or executive branches to act first in order to restore the rule of law. These proposed six steps may not raze the administrative state, but they can begin the process of restoring limited government under the Constitution
