Until Members of Congress rediscover the most basic virtue necessary to fulfill their role in our constitutional government, no amount of tinkering can hope to restore our republic…
As the late George Carey and I were writing our recently published Constitutional Morality and the Rise of Quasi-Law, we were convinced that we would be criticized for not providing “solutions” to America’s constitutional crisis. Still, we refused to engage in the drawing up of utopian blueprints. Given the nature of our diagnosis, we were convinced that ready-made solutions would not avail in these times. That diagnosis, in brief, is that our political class has become too corrupt to understand, let alone value and defend, the constitutional structures essential to free government within our political tradition. Not unexpectedly, reviewers have, in fact, criticized the book for lacking mechanistic solutions to moral problems. Recent events show, however, that even the most obvious of such solutions have no chance of success until and unless a far more difficult reform is achieved within the minds and characters of those who sit in what was designed to be our sole federal lawmaking body—the Congress. Until Members of Congress rediscover the most basic virtue necessary to fulfill their role in our constitutional government—until they insist on exercising the power and taking the responsibility for passing all federal laws—no amount of tinkering can hope to restore our republic.
One of the more touted “solutions” to the problem of runaway federal power has been to have Congress take back at least nominal control over the process of making regulations. In point of fact, George Carey and I made reference to a full, structural reform along these lines. We noted that, under our Constitution, Congress is the only branch with the legitimate power to make laws, so it would be appropriate for its members to revoke their myriad delegations of that power to various executive branch entities and, with the help of expanded committee staff, return to writing all the laws itself—including those quasi-laws currently foisted upon us under the name “regulations.” The Executive, in such a system, would return to its constitutional role of executing/enforcing laws made by Congress. We did not seriously propose such a reform for adoption for the simple reason that we knew that there was zero chance of Congress accepting such a reality under current circumstances.
The fundamental problem with American government today is that Members of Congress see their job as keeping their more powerful constituents happy through a combination of ideological grandstanding, pork-barrel politics, and “service.” Members define service as intervening with Executive agencies on constituents’ behalf when and where this seems politically profitable. This corrupt system became entrenched in the federal government under Franklin Roosevelt’s New Deal, though it had significant antecedents. It has come to define our very form of government under both Democratic and Republican Administrations in recent decades.
The relevant legislation currently under consideration is called the Regulations from the Executive in Need of Scrutiny, or REINS Act. Already passed by the House, the REINS Act “would require any executive branch rule or regulation with an annual economic impact of $100 million or more—designated by the White House’s Office of Management and Budget (OMB) as a ‘major rule’—to come before Congress for an up-or-down vote before being enacted.” Proponents of the bill, including libertarian Senator Rand Paul, claim that it would force Congress to take notice of expensive regulations and exercise greater oversight over the Executive Branch.
To be fair, proponents have described this legislation as only a first step toward greater Congressional control over the rules that do far too much to govern our lives. That said, it is a first step made much weaker and more halting by the fact that it operates under the same corrupt logic that has fostered our leviathan state and continues to feed it. Only regulations an Executive Branch office deems “major” would be reviewed, and then potentially as a mere pro-forma mass ratification. Perhaps no provision makes the limits of the REINS Act clearer than that rendering Congressionally-approved regulations susceptible to the same kinds of legal wrangling endemic today. The legislation provides that regulations approved by Congress may be challenged in court on grounds, not only of Constitutional invalidity (e.g. going beyond the enumerated powers of Congress or the federal government) but also of being “arbitrary and capricious.”
It may seem antithetical to America’s tradition of ordered liberty to say that laws cannot be challenged as arbitrary and capricious. But the relevant question, here, is “challenged where?” Americans are, or at least should be, free to challenge any law at any time through peaceful means—and for any reason. But the proper place for the vast majority of such challenges is not in court, it is in the legislature itself. Our administrative state has grown out of control in its extent and power precisely because Congress and the American people have allowed themselves to be misled by courts’ (and lawyers’) self-serving untruth that they are the proper guardians of our rights.
When Congress began delegating power to the Executive Branch in earnest during the New Deal, it excused the breadth and sheer sloppiness of the endeavor by claiming that individuals’ rights would continue to be defended, both through the regulatory process and in court. As agencies have grown ever more powerful, even putting together their own veritable SWAT teams to enforce their dictates, the courts have grown in the minds of Americans as necessary bulwarks against bureaucratic overreach. But the results have hardly been conducive to liberty. Indeed, Americans have come to accept less and less in the way of rights of due process and the ability to simply be left alone, instead hoping that various authorities, Members of Congress, and non-profit groups might keep agencies from stepping too far over the line separating us from tyranny.
Rights are important. But the chief rights necessary for ordered liberty are those of self-government and limitations on governmental (and especially federal) power. Neither of these is protected by the limited procedures provided by administrative quasi-law. The “arbitrary and capricious” standard for reviewing agency regulations was created by courts as a means of asserting control over bureaucratic discretion without really limiting it. The standard says, essentially, that agency personnel may do whatever they want, provided they can provide courts with some kind of paper record showing a rational basis for their actions, and especially for the rules they make up as they go along. This minimal protection is of some small use in providing some protection against virtually life-tenured administrators whose substantive decisions are challenged only on rare occasions. Far better protections are provided by an open legislative process and the ability to hold legislators responsible for the laws they pass. Like it or not, we cannot have both. If we cede to courts oversight over the legislative process, unelected judges and not legislators will continue to determine the proper character and application of legislation.
The REINS Act would leave the vast bulk of our administrative state untouched, and out of reach of responsible governance. Its window-dressing of judicial standing (allowing people to sue over the nature of laws passed by Congress) will only see to it that any distinction between law and regulation becomes even blurrier than it already is. Only a Congress with the fortitude to take back its lawmaking powers and duties can end our slide into Presidential government, whatever the party in power.
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