President Donald Trump’s inauguration could have significant implications for the U.S. regulatory state for two principal reasons. The first is that he is committed to reducing the regulatory burden and has proposed the adoption of regulatory budgeting to meet this goal. The second is that the president’s complicated relationship with members of the Republican-controlled Congress could lead to renewed interest in strengthening congressional oversight and scrutiny of regulations and other executive rulemaking.
Both developments would be positive for the U.S. economy and its democracy. The regulatory burden imposed on businesses and individuals by the federal government has been growing for several decades, with important economic and political consequences.
The economic part of the story is well-known. A 2014 report by the National Association of Manufacturers estimated the total cost of federal regulations exceeded $2 trillion and represented a financial burden of $233,182 for the average U.S. firm. This financial cost imposes a significant burden on the U.S. economy with respect to capital investment and job creation.
But the massive expansion of federal regulations also carries a political cost, to the extent that it diminishes the legislative branch relative to the executive. A proliferation of regulations, rules and other executive directives has led to regulatory sprawl and what Georgetown University legal scholar Jonathan Turley has called “a constitutional crisis with sweeping implications for our system of government.”
For example, federal bureaucrats have used the Clean Air Act alone to enact, on average, roughly 350 pages of regulations for every year the law has been in effect. Surely, legislators did not intend such executive exuberance when they passed the act nearly 50 years ago. But it is hardly the only example of broad or vague legislation becoming a seemingly limitless basis for executive rulemaking and overreach.
Several ideas have been considered to reverse this trend of a growing regulatory burden and greater scope for executive action. Proposals have been advanced to require Congress to vote on major regulations and to form a commission to remove anachronistic or ineffective regulations.
Another institutional reform that should be considered is to create a legislative committee that would scrutinize “delegated legislation” and ensure that any new rules and regulations promulgated by the executive comply with the law. Such committees exist in Australia, Canada, New Zealand and the United Kingdom, and generally serve to diminish executive overreach with regards to its legal authority in regulation and rulemaking.
This study outlines the Anglosphere experience with such legislative committees and considers what lessons can be derived for the U.S. context. U.S. legislators can learn from the strengths and weaknesses of these Anglosphere experiences to establish a new congressional committee to scrutinize regulations and executive rulemaking as part of a broader strategy to reverse the growth of the regulatory state and the erosion of congressional supremacy.
The key lessons are: the review process should be depoliticized to the extent possible; such a legislative committee must be properly resourced and staffed; correspondence between the committee and government departments and agencies must be transparent and tied to clear and reasonable timelines; enabling or primary legislation should only delegate lawmaking authorities where appropriate; and the threat of disallowance must be practical and real.
The paper’s first section will describe the relationship between the executive and legislative branches and the role of delegated authorities in regulations and executive rulemaking. The second will review the mandate, role and structure of these committees in Australia, Canada, New Zealand and the United Kingdom. The third will examine the growing regulatory state in the United States, how the absence of congressional oversight has contributed to the problem and the set of reforms presently under consideration. The final section will assess the strengths and weaknesses of the Anglosphere models to establish key lessons for U.S. lawmakers.
Image by Victor H