by Gary Gailles
Who creates federal laws? Civics books say it is Congress, but the real answer today may be the executive branch. Earlier this year, James Gattuso and Diane Katz reported that just the 229 major regulations issued since 2009 added over $100 billion in annual costs (according to the regulatory agencies), $22 billion coming in 2015. With estimates of the total regulatory costs now exceeding income tax burdens at over $2 trillion annually, regulations were far more burdensome for many Americans than legislation.
Unfortunately, missing from this process is accountability to citizens. In response, some members of Congress have turned to supporting the “Regulations from the Executive in Need of Scrutiny” (REINS) Act, which would require Congress to approve major regulations before they could take effect.
Why is this necessary when the US Constitution specifically assigns all legislative powers to Congress? Because Congress has increasingly abdicated its lawmaking responsibility, delegating its power through vague laws and mandates to executive agencies, which then impose and enforce the actual regulations that legally bind Americans.
The REINS Act, by allowing major regulations to take effect only if passed by Congress, would end the effective delegation of legislative power to regulatory bureaucrats and restore some of the Constitution’s eroded separation of powers. It would offer some real political accountability, by moving us back toward Americans’ earlier understanding of legislative powers, gutted in U.S. v. Grimand (1911) and subsequent court rulings.
Before Grimand, Congress had already begun giving administrative agencies power to formulate specific rules to implement Congress’ general policy objectives. But in Grimand, the Supreme Court gave such administrative rulings the full force of law, with delegation mushrooming since.
The result has been ever-growing power for federal bureaucrats, enacted through reams of rules, imposing massively large costs on Americans. But bureaucrats need not clearly spell out their policies and their consequences to the public, much less submit themselves for voter approval. And whenever a scandal reveals some regulatory abuse or failure, politicians hide from their responsibility by blaming the bureaucrats they delegated the power to and then failed to effectively oversee. There is another very practical reason for reining in our current Pandora’s Box of congressional delegation. The fact that legislators must leave policy details vague — to be filled in later by others — illustrates how members of Congress don’t know enough about the problems they’re supposedly addressing.
To adequately address a societal problem requires detailed knowledge of the problem and the specifics of how it will be “fixed.” But legislators who had really mastered such details would trumpet them at every opportunity to ensure they got credit. So, when they delegate policy details to agency bureaucrats, they reveal they do not know the specifics of a workable solution.
Despite the ineffectiveness of legislatively delegating vaguely outlined responsibilities to executive agencies, it is prevalent because it gives the appearance of a legislative solution without requiring legislators to actually have a solution. Given voters’ shaky knowledge of social problems, policies, and possibilities, such play-acting can work for politicians almost as well as (if not better than) actual solutions. It also provides politicians ready-made scapegoats whenever the political heat gets turned up, allowing them to absolve themselves from true accountability.
Americans constantly hear public servants’ verbal commitments to accountability. But it is a slogan more than a reality. Reinstating a requirement that Congress approve all laws, which, if we are honest, major regulatory rules amount to, would restore some meaning to that rhetoric. It would force elected officials to answer for agency excesses and failures, rather than letting them blame bureaucrats for their own lack of real solutions. And holding both executive agencies and the Republican-controlled Congress to greater account would be an excellent way for the president-elect to prove his commitment to “drain the swamp” of federal abuses and abusers.
Gary M Galles is a professor of economics at Pepperdine University. He is the author of The Apostle of Peace: The Radical Mind of Leonard Read.