Reclaiming Legislative Power

The power to make laws rests wholly in Congress – at least that is what the Constitution says.  Yet who makes the “laws” in our federal system today?  Vast amounts of legislative power have been “delegated” to independent federal regulatory agencies like the Federal Communications Commission or to the president or his cabinet secretaries. 

The sheer volume of these rules is mind-numbing.  Consider that in 2014, the year that just ended, 75,000 pages of new regulations were adopted by the Executive Branch, either by the Obama administration directly or through independent regulatory agencies.  This is in addition to the myriad executive orders the president gives to his various departments regarding how to administrate federal laws.

The imagined need for these rules is that congressional legislation cannot anticipate every situation or change that requires new regulations.  That is true, of course, only if we accept the underlying premise that the federal government ought to be directly involved in almost everything we do.  Not only is that notion itself unconstitutional, violating the limited powers in Article I and the strict limits of those powers in the Ninth and Tenth Amendments, but it is even more noxious because whatever rules the federal government does impose are required to be enacted only by Congress.

The consequence of this constant growth and expansion of rules is that what is lawful and what is not morphs all the time as proposed rules pass through the regulatory process and acquire the force of law.  These rules often seem to conflict with other rules or with federal statutes or with judicial decisions interpreting federal law, so that the confusion is compounded dramatically.  The only folks who seem able to navigate through this morass are Washington lawyers and lobbyists, whose interest is wholly mercenary.

Those who actually make the rules we are obliged to obey are not elected officials or even their legislative staffers, but rather invisible bureaucrats, with no real accountability to the American people, who migrate after their period of public “service” into jobs as those same Washington lawyers and lobbyists.  What makes this worse is that these same bureaucrats who make these “laws” also enforce the same “laws,” which means that this is virtually no separation of legislative and executive powers for much of what happens in the federal government.

One of the first reforms a new Republican president ought to ask of the Republican Congress is to abolish the independent federal regulatory agencies and remove the power of the president or his appointees to make new rules.  Would this create chaos?  Hardly: the existing rules could still remain in effect for a certain period – say, two years – and during that period, Congress could by resolution either confirm or deny all or part of existing rules.

What about new rules “needed” by the federal government?  These would be adopted like all other laws by Congress in the normal legislative process.  In cases of genuine and true emergencies, Congress could delegate to particular congressional committees the power to meet and to adopt emergency rules that would remain in effect only until the end of the next legislative session. 

Congress ought also to conduct a systematic review of all the past rules that have been adopted, with the intention of adopting a federal code for each area of past regulation that is as brief, clear, and uniform as possible.  Rather than trying to micromanage American commerce, industry, and society, Congress should come up with a set of laws ordinary Americans can read and understand, which adopts broad and consistent rules for our nation. 

This sounds impossible only if we accept the premise that without federal micromanagement of our lives, that society would fall apart.  Limited laws and regulation simply shift the operation of society from commands to consent – liberty works at least as well, in most situations, as law.

Moreover, this reform would not remove the power of state legislatures to enact laws, and very often, this has resulted in some very good examples of legislation.  The Uniform Commercial Code, for example, has been adopted by state legislatures throughout the land.  Its provisions are explained clearly, with commentary, and are intended to be fair, objective, and rational – which is exactly what businessmen want when they buy and sell goods and services to each other.

This is the sort of reform voters can understand, which transforms Washington.  It is also a winning reform for 2016.

If you experience technical problems, please write to