Time for a More Assertive Congress
If our Congress wishes to fight its steady march into irrelevance it will have to actually go back to doing its job. Once upon a time, the first Article of the Constitution established all the powers that the Congress has and obligations that Congress must adhere to as they conduct their legislative business. Then, beginning in the 1930’s and 40’s, through the passage of the Administrative Procedure Act (APA), and other actions, Congress abdicated part of its legislative authority to an ever increasing number of federal departments and agencies.
These agencies create thousands of regulations each year that are then added to the hundreds of thousands of regulations already in existence. Many created by the EPA, the IRS, and other agencies become controversial when they promote, or at least appear to promote, an agenda that Congress and the voters have rejected. The Congressional Review Act (CRA) does allow for some oversight but it is rather toothless.
Normally new laws require a bill to be approved by both houses of Congress, signed into law by the President, and only then administered by our many bureaucrats. Under the CRA, Congress works in a backward fashion; first the bureaucrats decide that they need some new authority and propose new regulations that will give them the power they crave. Rather than both houses first agreeing that the proposed regulation should become law before it takes effect, as it would with any bill, the CRA allows regulations and administrative laws to take effect if both houses can’t agree that they shouldn’t. This creates a big loophole for ideas and regulations that couldn’t survive congressional debate and scrutiny. If the House votes against the new regulation while the Senate votes for it, the new regulation becomes a law -- a law that would never have been created if it had to travel through the legislative process established by the Constitution. That process that requires a majority of our elected representatives to agree that a law is necessary before we are burdened with compliance.
The legislative branch has a few options going forward. They can continue to pout about executive overreach and whine to the press and the courts for some redress, or they could exercise some of the overwhelming Constitutional power that they possess and change the situation. The Congress created most, if not all, of the departments and agencies through legislative acts. It would be difficult to argue that Congress does not still have the power to adjust, reorganize, replace, or even eliminate any government agency they see fit. Congress could rewrite the nature and very existence of every administrative agency.
The 16th Amendment, legalizing income tax, may be the figurative backbone of the IRS. However, Congress can tear it down to its bare-bone foundations and recreate it in whatever image the legislators might like. Other agencies are probably overdue for a proper Congressional rebirth, complete with legislation explicitly stating their realm of authority, what they can do, what they can’t do, and to whom they must answer. Such an example is the EPA, which was cobbled together by a collection of executive orders.
The procedure used by agencies to create regulations and administrative law, would also need to be revised. A suggestion: establish new committees in the House to conduct oversight and legislative control of each agency in the government. Each agency would have to submit any new regulations to their House committee or committees. Let’s not make it too easy for them. These committees would have the absolute Power of No over the agencies in their charge. If the committee agrees with a proposed regulation, it becomes administrative law. If the committee disagrees with the proposal, the committee says No, and the matter is dead and beyond appeal.
If the President is upset by this and thinks that the denied regulation is vitally important, he has two choices. First, ask Congress to pass a bill that will make the desired regulation a law. The second choice, get over it.
What about emergencies? Here is a big, widely known secret; most emergencies aren’t real. Real emergencies are never handled by bureaucratic minutiae anyway, but rather by broad real world actions, like the actions needed to fight a fire or to repel an attack. Also, real emergencies are typically confusing and chaotic, so fast laws are likely to be wrong laws. It would be better to force thought and deliberation before loading up with new regulations to affect unclear and dynamic events.
There are probably many reasons the suggested actions have not been used to reestablish Congressional authority. Perhaps, if we are cynical, the politicians involved are reluctant to change the system because they are hoping to misuse the power themselves in some future scenario. Or, they find it politically easier to pretend they have no responsibility for what is happening in the government they are charged with running. Most likely it is a combination of factors and a large number of those factors are simple complacency and a bit of laziness. It would take time and effort to review all the federal agencies and to decide what capabilities should stay and which should go. Reorganizing the House and increasing their oversight obligations would increase their workload. They would become far more accountable for the government they give us. This will require a level of discipline that just may not exist in our current political class.
So, the Congress can either continue to whine about abuse of powers, and being sidestepped by both the Chief Executive and all of his agents in the executive branch or they can act. They can cry about how agencies are running free of the boundaries of their established power or they can rebuild the wall and rein in the violators. It would be a major undertaking and, initially, it would be incredibly messy. However, as the reports of our bloated Federal system’s inefficiency, incompetence, corruption, and outright illegal activity continue to pile up, few good choices are available. Chop down the bad and build something better or live with a fast creeping rot.