Thanks to the 17th Amendment, which slowly neutered the senate and eventually the entire congress, an administrative state performs legislative, executive and judicial functions. Congress goes far out of its way to avoid lawmaking and oversight of the agencies it created.
The final straw should have been Obama’s Consumer Financial Protection Bureau (CFPB) and Obamacare Death Panels. These agencies were set up to operate beyond the reach of the institution that created them. As such, they are even further displaced from the electorate than previous executive branch agencies. As an additional outrage, the fees and penalties the administrative state inflicts on the public are pure profit; collected funds do not go to the treasury. During the dark Obama years much of the money went to private social justice groups with the remainder to the agency. We heard not a whimper from the GOP, and when the CFPB and Death Panels were finally challenged in court, scotus found them to be Constitutional.
The central feature of legislative bodies is deliberation. A legislature that doesn’t deliberate is a façade. It is no more than an elected mob in which members look out for their personal wealth and power and little else. Congress has stopped overseeing administrative agencies in recent decades and nowadays practices what political scientists call “emergency” rather than “police patrol” oversight. Almost all the oversight we see now occurs only when there is an emergency, when “something has gone terribly wrong” as in the 2014 Veterans Health Administration scandal, and the recent Florida school shooting.
Senator Mike Lee of Utah wants to nudge congress toward the Framers’ 1787 ideal. No, he isn’t calling for repeal of the 17th Amendment but instead for congress to exercise a modicum of oversight over executive branch agencies. It is an effort in the right direction.
Senator Lee, along with several other conservative lawmakers, launched the Article 1 Project, or A1P in the spring of 2016.
In a recent speech to the Federalist Society, he noted that for the past 80 years, Congress largely surrendered its constitutional duties to the executive branch. This happened regardless of who occupied the White House and who controls Congress. It is one of the true bipartisan efforts in Washington.1
The A1P is about understanding how we got to this point in history and how we go about fixing the problem.
Article I of our Constitution states directly that “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
The Framers anticipated that Congress would predominate over the other two branches of the federal government. For the first hundred years or so of our republic, that is basically how it worked. Congress made the laws and the executive branch enforced them.
But by the beginning of the 20th Century, the so-called progressive theory of government gained traction and undermined the strict separation of powers established in our Constitution.
By the time of his first inaugural address, FDR confidently and happily announced that the Constitution should be changed. The Depression should be treated “as we would treat the emergency of war” and that “it may be that an unprecedented demand and need for un-delayed action may call for a temporary departure from the normal balance of public procedure.”
President Roosevelt’s radical departure from the Constitution was anything but temporary. And the United States steadily departed from the normal balance of public procedure ever since.
The other two branches of government, the legislature and judiciary, did not take this upending of our constitutional order lying down. Subsequent Congresses were not as willing to give Roosevelt’s new federal agencies a blank check to create new laws. And Roosevelt infamously had to threaten to pack the Supreme Court before the judicial branch came to an uneasy truce with this new regime.
It wasn’t until Roosevelt died and President Truman came to power that the government adopted a more systematic and codified framework that set the ground rules for America’s burgeoning administrative state. The cornerstone of this framework is the Administrative Procedure Act.2
In the years following the enactment of the APA, Congress granted agencies broad lawmaking authority. At the same time, to retain as much of its legislative authority as possible, Congress began inserting more and more “legislative veto” provisions into these otherwise broad grants of power.
This framework was not completely static over the next 40 years, but in the 1980s two Supreme Court cases fundamentally changed the balance of power between the branches.
In 1983, in INS v. Chadha, the Court held that legislative veto provisions were unconstitutional because they amounted to a second legislative act, thus violating the requirements of bicameralism and presentment.
A year later, in Chevron U.S.A. v. National Resources Defense Council, the Supreme Court held that courts must defer to an agency’s interpretation of ambiguous statutory text if they are charged with administering the law.
Whatever one thinks about the legal merits of these decisions, taken together these two cases caused a substantial transfer of power from the legislative and judicial branches to the executive branch.
Stripped of the power to veto regulations issued by executive agencies, Congress lost one of its most powerful tools to control federal bureaucrats. And in many cases, the courts could no longer question whether agency action exceeded the authority granted to it by the legislative branch.
Still, it is congress and not the courts that bears primary responsibility for abdicating lawmaking responsibility. After Chadha and Chevron, congress could have found new ways to exercise control over agencies. But over the years, congress chose to outsource our constitutional prerogatives, because doing so is politically expedient.
The results are staggering: few federal “laws” are passed by the House and Senate and signed by the president. They instead take the form of regulations or orders written by people who do not stand for election and using processes contrary to those contemplated in the Constitution.
This upending of our constitutional order produces bad policy and contributes to the public’s deep distrust of our governing institutions.
For conservatives, it represents something of a crisis. First, conservatives believe in constitutionally limited government and the rule of law in their own right – as bulwarks of freedom and justice in our society.
Second, the transfer of lawmaking power from Congress to the Executive Branch tilts the policy playing field, rigging the lawmaking process to benefit the wealthy and well-connected at everyone else’s expense. When elected representatives in congress tie their own hands and empower unelected bureaucrats to make the law, it thwarts the kinds of policies that conservatives tend to advocate – policies that limit the size and scope of government and protect Americans from government overreach.
The goal of the Article 1 Project is to develop, advance, and ultimately enact an agenda of structural reforms to restore congressional authority over regulations and regulators.
First up is the REINS Act – REINS stands for “Regulations from the Executive in Need of Scrutiny” – would help restore the balance between the executive and legislative branches by requiring congressional approval for any new regulation that would impose $100 million or more in compliance costs on the American people.
Under this law, the specialized and technical knowledge of executive-branch agencies would still contribute to the regulatory process, but it makes congress ultimately responsible for every major regulation that goes into effect. This will make it easier for American voters to know who to blame for bad policies. As things currently stand, lawmakers can have it both ways. For example, when the EPA promulgates an expensive environmental regulation, we can tell our constituents that of course we support clean air and clean water, but we had no idea the EPA would regulate in such a costly manner. The REINS Act will fix this.
Next, the Separation of Powers Restoration Act will functionally overturn the Chevron doctrine by reinstating federal judges’ power – and, indeed, obligation –to interpret federal statutes. Specifically, the bill amends the APA and requires judges who are hearing challenges to agency actions to review all relevant questions of law “de novo.” In other words, the bill would end the dysfunctional status quo that tilts the legal playing field in favor of federal bureaucracies. If passed, this legislation will place federal law into the hands of legislators empowered to write it and judges empowered to interpret it, just as the Constitution demands.
Finally, the Agency Accountability Act makes federal agencies accountable again by directing most fines, fees, and unappropriated proceeds to the Treasury, instead of letting federal agencies keep and spend money as they see fit.
The Constitution gives congress – and only congress – the power and responsibility to direct spending of federal dollars. The power of the purse is one of Congress’ most potent tools for controlling federal bureaucrats, which is why so many agencies have sought to secure their own revenue streams, operating free from the scrutiny and accountability of congressional oversight.
Passing the Agency Accountability Act would go a long way toward putting Congress – and by extension, the American people – back in charge of how federal bureaucracies spend money.
Many Americans now feel that they are not in control of their own government. It’s because they aren’t. The administrative state is designed to be insulated from politics – that is, it’s designed to be insulated from the will of the people. This vast, unaccountable morass of programs, agencies, and commissions are all easily captured by the powerful and well-connected, and all dedicated to the regulation of the minutiae of everyday life.
But we can push back. If we pass even one of the legislative reforms I’ve outlined – the REINS Act, the Separation of Powers Restoration Act, or the Agency Accountability Act – then we will have made real progress toward returning power to the people.
And if we can do more – if we can pass all three bills – it would constitute a fundamental shift of power in this country. A transfer of power not merely from one party to another, but from Washington back to the American people.
I’m encouraged by the progress we’ve made over the past year. And I’m encouraged that the Federalist Society and other organizations continue to hold events devoted to the proposition that our governing institutions should function the way the Framers intended. What we do in Congress matters. But what you do matters more. Restoring our constitutional republic will require structural shifts in our government and fundamental changes in our political culture. That’s why events like today’s conference are so important.
Well, there you have it. At least one senator is willing to stand up and shout out for a beginning, the beginning of a return to Constitutional government.