Reasserting Congress in regulatory policy

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The attached policy study was originally published in “Policy Reforms for an Accountable Administrative State,” the second installment in National Affairs’ Unleashing Opportunity series.


Congress is “the first branch,” and the Constitution assigns to it alone the power to legislate. In the eyes of the founders, the legislative branch was to predominate—all policy, all taxes and all agencies would be its creatures. Fearing the legislature would, as James Madison put it, draw “all power into its impetuous vortex,” the founders enumerated the permissible subjects for legislation and split the branch into two chambers. Frequent elections were required in order to keep elected officials in tune with the demands of a diverse public.

Meanwhile, Article II posits the executive as a modest figure whose responsibilities mostly focus upon foreign affairs. The chief executive could veto unwise legislation, but had no authority to introduce legislation or require Congress to consider it. In a system of limited government, the president was to “take care that the laws be faithfully executed.” The founders designed the U.S. president to be very unlike the kings of the Old World.

It is a remarkable and troubling development, then, to find modern presidents effectively “legislating” as a matter of course, and more frequently than Congress. In recent years, Congress has enacted approximately 50 statutes annually on significant subject matter; the executive branch proposes 2,700 new regulations and finalizes another 4,000 rules each year. Congress, then, has ceded much of its essential power to the executive branch, which exerts itself on nearly every aspect of life imaginable.

Restoring legislative power to Congress necessitates curbing the executive branch’s nearly untrammeled power to make law via regulations. It also means strengthening Congress’ capacity and the incentives to reassert its constitutional role in lawmaking.


Image by M DOGAN

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