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  • Six Steps to Reining in the Administrative State

    In many ways, Obamacare clarified the problem of the administrative state. Congress routinely writes vague laws, delegating its authority to bureaucrats who make detailed regulations covering every aspect of our lives: from the light bulbs we use to the health care coverage we purchase. In passing Obamacare, Congress transferred important aspects of its legislative authority to various administrative agencies. Obamacare created a multitude of new federal agencies and empowered unelected, unaccountable bureaucrats to write detailed rules controlling one-sixth of the economy. This terribly unpopular law led millions of citizens to ask of themselves and their neighbors: Are we citizens in a constitutional republic or subjects of the administrative state?

    Then the elections came. Americans went to the polls and voiced their opposition to the health care overhaul.  But is it too late for Congress to roll back the administrative state? Drawing on a recent Center for American Studies scholars’ conference on that topic (look for more papers to come), Robert Moffit offers six steps for Congress to roll back the administrative state.

    Step #1: Stop expanding the administrative state.

    Legislative power is not Congress’s to give away. The administrative state expands when Congress delegates its authority to an agency to create regulations. Congress can starve the administrative state by doing its constitutionally mandated job of writing legislation clearly and concisely.

    Step #2:  Bring back formal rule-making.

    The process by which rules and regulations are made also deserves Congress’s attention. The Administrative Procedures Act of 1946 categorized federal rule-making processes as formal or informal. The formal rule-making process requires the presentation of evidence, an oral hearing before an administrative law judge, the right of contending parties to present opposing cases, and that the public record of the proceedings be the exclusive basis for the regulatory decision.

    By contrast, informal procedures simply require the agency to give notice of its intention to propose a rule, receive comments in writing from interested parties, and issue a statement of the rule’s basis and purpose if one is issued. It is no surprise that the informal process of mere “notice and comment” creates opportunities for backroom deals and special-interest lobbying. Congress should, therefore, require formal rule-making in order to increase accountability to the people and to restore the public’s trust in a process that is increasingly seen as arbitrary and abusive.

    Step #3: REIN in regulation.

    Congress currently has the power under the Congressional Review Act of 1996 to make rules null and void. Before a rule goes into effect, an agency must submit it to Congress. Congress may, in turn, enact a joint resolution of disapproval for an agency’s rule, thereby vetoing the rule. In practice, federal agencies circumvent Congress’s authority by failing to submit the appropriate rules to Congress.

    Should the Regulations from the Executive in Need of Scrutiny (REINS) Act pass, Congress would take a greater responsibility in enacting regulations. Regulations would only take effect if approved by both houses and signed into law by the President. Thus, any issue of controversy over the rules would become a highly visible public policy question to be settled in open debate and in broad daylight.

    Step #4: Strengthen congressional oversight of rule-making.

    Congress can exercise its oversight authority to investigate the regulations. The purpose of congressional hearings and investigations is to gather useful information to make substantive policy changes through legislation. They do not have to be about merely embarrassing public officials. Congressional oversight into the rule-making process restrains the arbitrary exercise of power by the administrative state.

    Step #5: Establish internal mechanisms for regulatory review.

    Congress could create an independent body to review regulations.  Similar to the Congressional Budget Office, a Congressional Office of Regulatory Review (CORR) would report on the estimated costs and effects of the federal regulatory authority embodied in bills that come before Congress. Alternatively, Congress could establish a Joint Committee on Regulatory Review to monitor the regulatory activities of federal agencies and departments and independent agencies: a body that would hold hearings, hear testimony, and assess the effect of federal rules on business and the economy.

    Step #6: Protect citizens against regulators.

    Regulations harm individuals and organizations. Using its oversight authority, Congress can hold federal agencies responsible for enforcing faulty, abusive, or arbitrary applications of federal rules. Congress should waive sovereign immunity for federal agencies in certain areas of regulatory enforcement, enabling wronged citizens to recover damages from abusive or incompetent agency actions.

    Since the 20th century, the rule of law has been eroded and replaced with the rule of regulators.  But in 2010, voters gave Congress permission to roll back the administrative state that Obamacare greatly expanded. Congress does not need to wait for the judiciary or executive branches to act first in order to restore the rule of law. These proposed six steps may not raze the administrative state, but they can begin the process of restoring limited government under the Constitution

    Posted in First Principles [slideshow_deploy]

    11 Responses to Six Steps to Reining in the Administrative State

    1. Bobbie says:

      i'm sorry you guys. I appreciate your well informed, well written articles and it just makes me want to write.

      It's all logic. There is no reason but devious ones why rules wouldn't be followed or why the leader has absolutely no integrity to the people he serves. Even children reach a point in their youth where they respect the responsibilities put on them and carry out the rules applied. That's how they grow up.

      Covering up, rearranging, making new rules that only worsen everything. He needs to step down or be impeached. He is NOT an American leader.

    2. Pingback: Six Steps to Reining in the Administrative State

    3. George Colgrove, VA says:

      I like it except for creating an another oversight group (how many do we have now?). A new oversight office that will be populated by even more federal employees. They will only obfuscate for the administration like the CBO does. Only after the fact will we get the truth – and then it will be too late.

      We seem to be lured into thinking these overpaid people will actually work for our benefit. We are lured like flies to to that amazing blue light. Every time we get burned.

      We cannot win against this behemouth.

    4. Roger Baxter. Batavi says:

      The proposals given assume that the departments issuing the regulations are entitled to do so. If, in crafting the budget for the coming fiscal year, we demanded that the question be asked: "What is the Constitutional authority for this Department (agengy, etc.) to even exist?", the answer in most cases would be NONE. In that case, the budget should be set at "0" for each of them, wiping them, and their myriad regulations off of the books.

      I am extremely disappionted that Heritage cannot look higher than trying to fix little things rather than a dysfuntional syatem as a whole.

    5. Walter Brown, Americ says:

      Amen Julia. We need practical explanations of how to systematically restore constitutionally limitted government. It's fun to debate the merits of one thing versus the other but practical strategic thinking is much more important and valuable.

      We have to start somewhere, so why not start at the beginning?

      Article. I., Section. 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

      This is as good a place as any to start re-establishing constitutional legitimacy.

    6. Tim AZ says:

      I have to agree with George. We already know that creating agencies only serves to weaken the power held by the people over their elected government. All the rest of the steps mentioned above are nothing more than asking our congressmen to make decisions based on the will of the people within the bounds of the constitution. Unfortunately the longer one remains a congressman or a senator the more they are likely to base their votes on monetary gains, or how to avoid unpopular votes through the creation of independent bodies known as govt. agencies that are unaccountable to the people. Never the less, five of the six steps above could only result in the restoration of our Republic. Make it so.

    7. Don Harper, Lubbock, says:

      I would like to see this House write clear, concise bills dealing with one thing at a time, and that contains detailed instructions on how it should be carried out. No more massive frameworks to be filled in later by unelected regulators.

    8. Dr. Tanya Hazelton, says:

      Julia Shaw's article is well-intentioned. There is much in the new 112th Congress that is well-intentioned. But our nation cannot continue to function with a bandaid. Major surgery is needed. Deep cuts in current budget and reassessing the jobs done at the too-numerous-to-count agencies is mandatory. Otherwise our U.S.dollar will become worthless paper to the world's business. America needs to wake up to Dr. Ron Paul's message: End the Fed.

    9. Leon Lundquist, Dura says:

      Oh! Your Article was brilliant! If we were bargaining with Loyal Americans then your approach is very useful. So, yes, use these Six Steps after you put out the house on fire!

    10. Diana Brown, Illinoi says:

      The President has no regard for the American People or our Constitution. He should be voted out of office now and I wish we could but we need to wait for 2012. He is a destructive force on our country. GOD please help this country.

    11. Terry Miencier, Turl says:

      I've read that the purpose of this legislation is to increase accountability for and transparency in the Federal regulatory process. Maplight.org lists what each representative received monies to support or oppose this legislation. Congressman Davis, KY, is a co-sponsor. As reported, he received $1,800 to support and $7,000 to oppose. Call me stupid but why would you take money to oppose your own bill?

      Additionally, Republicans as a whole took $1,809,157 to oppose as the Democrates took $21,549 to support. If anybody can help me understand this loopsided event, please do so.

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