Regulatory reform appears to be gaining traction in Washington, D.C. The White House directed agencies to halt the issuance of new regulations. Congress also got in the act. In its first week in session, the House of Representatives passed three bills to reduce the proliferation and costs of regulations.
These are good first steps, but more fundamental measures are needed to restore balance to our separation of power system.
The framers wanted the national legislature to be the centerpiece of our democratic republic. That’s why Article I, Section 1 of the Constitution declares: “All legislative powers herein granted shall be vested in a Congress of the United States.” Indeed, all of the fundamental powers of government—taxation, spending and declaring war—are assigned to Congress.
Yet what we have today bears little resemblance to the government envisioned in 1789. Today’s executive branch is a behemoth—a nearly $4 trillion a year operation, with 180 agencies, 4 million employees and untold millions toiling as contractors—that dominates federal policymaking.
Meanwhile, the legislative branch has a budget of about $4.3 billion, which covers not just the Congress itself. The sum also includes the Government Accountability Office, the Library of Congress, the architect of the Capitol (who maintains the Capitol and other congressional buildings) and more.
Paradoxically, Congress has gleefully shoveled more money to the executive branch but kept its own budget flat for years. This has had the effect of shrinking its cohort of staff and on-call experts at agencies like the Congressional Research Service.
If that were not bad enough, for the past century, Congress has further diminished its power by delegating away or simply abandoning its legislative authority to the executive branch. Such delegations come in various forms, but most prominently, it’s been by encouraging agencies to regulate.
Consider the contrast in legislative activity. Congress enacts perhaps 50 significant laws each year. Executive agencies issue 3,000 new rules per year, and 80 to 100 have economic effects of $100 million or more. These numbers do not include “guidance” documents issued by executive agencies, which can have the same effect as regulations. The Code of Federal Regulations, the corpus of current agency rules, runs to more than 175,000 pages.
James Madison warned of the perils of big government. The “extension of the federal powers to every subject falling within the idea of the ‘general welfare'” would have ill effects, and, inevitably, “[o]ne consequence must be, to enlarge the sphere of discretion allotted to the magistrate.” Basic mathematics and finite congressional capacity were the causes: “In proportion as the objects of legislative care might be multiplied…the time allotted for each would be diminished.”
Yet here we are, with a regulatory state that runs of its own, and a Congress that plays little meaningful role in regulatory policy.
If we prefer a democratic republic, then we need to reassert Congress in regulatory policy. Certainly, chamber leaders can devote calendar time to voting down ill-conceived regulatory proposals, using the Congressional Review Act. Congressional leaders also can drive a conversation about regulation, and relentlessly remind their fellow elected officials that all regulations are local. That’s where the policy rubber meets the road: on factory floors, in restaurant kitchens, on family farms and in school classrooms everywhere.
But exhortations aren’t enough. We also need structural Madisonian responses to bolster our divided system of government by giving Congress an ongoing role in regulation. In my chapter of a recent report published by National Affairs, I lay out a variety of approaches to accomplish this. Here are four of them.
First, Congress can create a special panel—similar to the Defense Base Closure and Realignment Commission, better known as BRAC—to examine the current volume of regulations and weed out the failed and anachronistic ones, which Congress would be asked to approve or reject via an up-or-down vote.
Second, enacting the Regulations from the Executive In Need of Scrutiny (REINS) Act, which the House has done four times already, would empower Congress to stop problematic major rules before they take effect.
Third, Congress can put agencies on a regulatory budget, as Canada has done. This would limit the amount of regulations each agency could impose each year, thereby forcing regulators to abolish old regulations before they may enact new ones.
And fourth, to increase Congress’ capacity to engage regulatory policy, it can create its own Congressional Regulation Office. This new corps of legislative branch experts would be a countervailing force to the executive branch’s army of regulators. The CRO would perform cost-benefit analyses of agencies’ significant rules in order to provide a disinterested check on agencies’ self-interested arguments for more power. To stoke congressional attention and action, the CRO’s regulation scores would be posted online and delivered to congressional committees and leadership.
The Constitution gives Congress all the authority it needs to fund and staff itself and to assert its authority in regulation. Now it just needs to do it.