None of this is to say that Congress should not create regulatory agencies. Obviously, laws cannot anticipate all the circumstances to which they apply, and specialized knowledge is often required to apply laws even to foreseen or well-known circumstances. It is also obvious that Congress cannot review all the thousands of rules that scores of agencies promulgate each year.
Nonetheless, when an agency issues a rule with major potential impact on society, or when it issues a rule that would initiate a major change in public policy, the people’s representatives should have to approve the rule before it takes effect. Otherwise, we are no longer a self-governing people but a people ruled by bureaucratic elites.
Congress’s excessive delegation of lawmaking authority to agencies not only undermines the separation of powers, it is also a root cause of big, costly, activist government. When Congress and the president deputize agencies to legislate, elected officials escape responsibility for the compliance costs and economic impacts of the laws they enact. “We only approved the statute, not the regulation; don’t blame us!” Those who bear the costs of regulation — ultimately, all of us — are unable to reward or punish anyone at the ballot box for good or bad regulatory decisions.
In short, when elected officials take no responsibility for regulatory decisions, they have little incentive to consider costs when drafting regulatory statutes, and almost none to insist that regulators develop economically sensible rules.
As if that were not bad enough, delegation also enables lawmakers to talk out of both sides of their mouths. They can tout their support for regulatory statutes when addressing corporate rent-seekers and anti-market activists. They can also castigate out-of-control bureaucrats when addressing businesses squeezed by red tape and mandates. And from both groups they can collect big fat campaign contributions!
Restore the Separation of Powers
The good news is that Congress is considering a real solution: the “Regulations from the Executive in Need of Scrutiny” or REINS Act, introduced by Sen. Rand Paul (R-KY) and Rep. Geoff Davis (R-KY). REINS would require Congress to pass, and the president to sign, a joint resolution before a major agency rule can take effect. If either one or both chambers of Congress do not approve the resolution, or if both approve but the president vetoes, or if he vetoes and Congress does not muster the two-thirds majority required to override, then the regulation does not take effect.
REINS would, in short, end the regime of regulation without representation. For those interested in a detailed explanation of how the bill would work, see the excellent testimony of former Congressman David McIntosh.
Somewhat surprisingly, not all limited-government advocates support REINS. Some worry that making Congress accountable for regulations would preclude judicial review of agency actions and preempt litigation to overturn or modify defective rules. New laws trump old laws. Consequently, these critics warn, if Congress enacts not only the regulatory statute but also the implementing rules, then any rule Congress approves must be legal even if the agency’s actions were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. REINS, they fear, would legalize agency lawlessness.
This concern is certainly worth debating but I think it is unfounded. A joint resolution of approval would simply lift the Act’s pre-existing prohibition on agencies issuing rules of a certain scope or magnitude, namely, major rules. The resolution would not negate or suspend any statutory requirements under which the rule might be challenged in court.
Section 802 (g) of the REINS Act is quite clear on this point:
The enactment of a resolution of approval does not serve as a grant or modification of statutory authority by Congress for the promulgation of a rule, does not extinguish or affect any claim, whether substantive or procedural, against any alleged defect in a rule, and shall not form part of the record before the court in any judicial proceeding concerning a rule.
The concluding words would seem to settle the matter: The joint resolution allowing a rule to take effect “shall not form part of the record” judges may consider when reviewing that regulation.
EPA’s greenhouse regulatory surge may be the most extreme case ever of regulation without representation. Stopping EPA will not be easy, because to succeed, opponents must assemble legislative majorities and, perhaps, veto-proof majorities.
Moreover, while Messrs. Inhofe, Barrasso, Upton, Whitfield, and Walberg must appeal to their colleagues’ uncertain respect for constitutional principle, EPA’s apologists are free to appeal to colleagues’ all-to-human desire to have one’s cake and eat it. Many in Congress want EPA to enact the virtual energy taxes they dare not vote for.
It’s time to un-stack the decks. Administrative agencies should not be able to make the big policy decisions that “We, the People” elect Congress and the President to make. Under the REINS Act, EPA would have to pursue its Kyoto-inspired agenda the old fashioned, small “r,” republican way: through public discourse and persuasion, not regulatory fiat.