Congress has relied on a lazy approach for decades. Genuine Congress has delegated much of its law-making power to unelected, unaccountable bureaucrats. In other words, Congress often appoints other lawmakers rather than making laws.
There are several problems with this approach: The U.S. Constitution makes Congress the sole law-making branch of the federal government. Article 1, Section 1 of the U.S. Constitution (the first implementing clause of the U.S. Constitution) states that “All legislative powers herein granted shall be vested in a Congress of the United States, consisting of a Senate and House of Representatives.”
The End of Chevron This needs to be the beginning, not the end, of a long-delayed reform process.
Article I, Section 7 sets the standard for making federal laws: both houses of Congress must pass the same text and submit that text (passed by both houses) to the President. If vetoed, the bill can only pass if both houses override the veto by a two-thirds majority.
Despite the clear language of the Constitution (stating that only Congress can make laws), Congress delegates much of its power to executive branch officials and, in some cases, to the President.
Congress passes a law that states an incontrovertible objective, which we’ll call “X.” Congress then passes a law that essentially declares, “We shall accomplish X, and hereby delegate to agency Y the authority to enact and enforce laws to accomplish X.”
Agency Y then writes laws (usually called “rules” or “regulations”) based on what the agency believes is the best way to achieve X. Agency Y then enforces those same rules and regulations it wrote.
Don’t be fooled by the changing names. Rules and regulations have the force of federal law. In countless situations, failure to comply with them can result in heavy fines, closure of your business, and even jail time.
For example, Congress passes a law that essentially says, “We should have clean air, and we delegate to the Environmental Protection Agency the authority to clean our air by making and enforcing rules and regulations (with the full force of federal law) to accomplish that end.”
Essentially, all decisions from that point on are at the discretion of the agency (in this case, the EPA). How much pollution is acceptable? How will penalties be assessed? What is the best strategy for cleaning the air and reducing pollution? It’s all up to the EPA.
This sounds great, because no one wants to breathe dirty air. But what if the EPA does something unreasonable — for example, what if the EPA shuts down local economies by setting unacceptable or unattainable standards?
Essentially, no one is accountable because the American people can’t fire the bureaucrats who make the laws we call rules and regulations.
There are no small number of federal rules and regulations: Last year alone, federal agencies produced about 100,000 pages of new regulatory documents for publication in an annual index called the Federal Register, which is published in installments every few days.
The economic impact will also not be small: Many have attempted to estimate how much these regulations will cost Americans (in higher prices, lower wages, etc.) and concluded that the cost will be in the trillions of dollars. Per year!
A few years ago, we tried to calculate how many crimes are in federal law. The Congressional Research Service (whose job it is to answer such questions) responded that the answer is unknown and unknowable, but that there are probably at least 300,000. This is set out in the agency’s rules. One might ask, “Why does it matter who writes the laws that Congress approves?”
The Founding Fathers understood that legislative power is the most dangerous power of government. That’s why they entrusted it only to the branch of government that is most regularly and most accountable to the people. When you take legislative power away from elected officials and put it in the hands of people who are accountable to almost no one, it becomes dangerous and unwieldy. Bureaucrats enjoy a degree of virtually unreviewable discretion that would make any dictator in history blush.
So what happened at the Supreme Court last week on this issue? Chevron vs. NRDCThe act required federal courts to defer to federal agencies in interpreting the laws under their control.
Chevron That made things easier for Congress, the courts, and federal agencies, but that was the problem: it made it harder for people to hold those who make our laws accountable. Chevron This needs to be the beginning, not the end, of a long-delayed reform process in this area.
The Supreme Court needs to revitalize the “nondelegation doctrine,” which recognizes that the power to make federal laws rests solely with Congress and no other legislators. The doctrine has long been disused and has left vestiges.
The Parliament REINS Lawtreats these federal rules and regulations as proposals, which will only go into effect after being passed as law by Congress.
Candidates for federal office, whether for the Senate, House, or White House, are required to announce where they stand on outsourcing law-making power to unelected, unaccountable bureaucrats, and to do so, they should be asked whether they support the REINS bill and, if not, why not.
In my view, this is the most important issue federal officials must address. It is “upstream” of nearly every issue in the federal government. For the same reasons, I believe the REINS Act is the most important bill pending in Congress.
Don’t look ChevronThe end of is the end, or even the beginning of the end, of the fight to curb executive legislation. We must ensure that this is only the end of the beginning.
Editor’s note: This article was originally published on X (formerly Twitter).
