Recently, the Texas Workforce Commission approved a controversial new rule for gig-economy workers that changes regulations for app-based companies that hire contractors — particularly affecting drivers for companies like Postmates, GrubHub and DoorDash.
In recent years, Florida, Arizona and Tennessee successfully implemented similar rules via the drafting, introduction and passage of bills. Meanwhile, Georgia and Colorado tried to pass comparable rules through their legislatures but failed. The main problem with Texas’ approach is not that the rule passed or failed, but that the state bypassed the legislative process entirely by issuing the rule through a regulatory commission.
At the federal level, Congress has already abdicated much of its legislative responsibilities in favor of agency-run regulatory processes. This has created a massive regulatory state run by unelected, largely unaccountable bureaucrats with the power to issue rules affecting the lives of all Americans. If the states adopt this habit, state lawmaking will begin to mirror the federal regulatory labyrinth, forever altering state governing structures. The Texas Workforce Commission’s recent regulatory action — and sidestep of the Texas Assembly — is a threat to democratic norms and a harbinger of a dangerous shift in American federalism.
Similar to how the U.S. Constitution made Congress part of the foundation of our government through Article I, state constitutions vested authority in their elected assemblies to draft bills — and in their elected executives to ratify them into law. Yet over the last century, America has witnessed a fundamental shift in where its federal legislative powers lie — one that sets the federal government apart from how states function. With the creation of executive agencies, Congress delegated much of its lawmaking power to these regulatory bodies, granting them the authority to craft and issue rules that hold the weight of law without the need for approval by the people’s elected representatives.
This shift resulted in an unprecedented explosion of federal regulations paired with an increasingly handicapped House and Senate. A clear indicator, the Federal Register — the log-book of daily agency action — shows us that agencies finalize more regulations in a single day than Congress has passed bills this entire year. By Congress passing the lawmaking torch to rulemaking bodies, the federal regulatory system has become the fourth branch of government — one that was neither created by the Constitution nor accountable to the electorate or Congress in any real way.
The federal trend of passing off lawmaking responsibility to agencies appears to be trickling down to the states. The Texas Assembly’s recent delegation of its lawmaking authority over the gig-economy workforce to the Texas Workforce Commission provides a perfect example.
Public response to the commission’s proposed regulation was overwhelmingly negative, but the commission passed it regardless. The rule, which must be followed as if it were law, could easily misrepresent the community’s values. But when the Assembly left this decision to the commission, Texans lost all influence over the rulemaking process.
The Texas episode bodes of a dangerous change in state institutional norms, one that could result in a democracy that looks little like what the Founding Fathers intended. Agencies should work to support legislators who stay accountable to the American people, not work to bypass the legislative process entirely. Rules enacted without any connection to the people they affect must be repealed, otherwise we will continue to lose our ability to call ourselves a “government of the people, by the people, for the people.”
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