February 22 2017
Quote of the Day:
The Trump administration must confront a fundamental question: What should be the nature and purpose of administrative agencies in the twenty-first century?
--Adam White in City Journal
"Break the Bureaucracy!" is the headline on Adam White's must-read piece on how President Trump has an opportunity to fundamentally transform the administrative state.
Most people who come to this blog are probably already acquainted with how this unelected bureaucracy has become a veritable shadow government. But White has a succinct statement of the problem that is nevertheless worth reading:
When Barack Obama and Congress negotiated over proposed greenhouse-gas legislation in 2009, for example, the president knew that he could simply walk away from the discussions and enact his preferred policies via Environmental Protection Agency regulations. Congressional Democrats knew this, too, and were happy to outsource policymaking to the EPA. Similarly with other policy areas: If administrative agencies are ready to do the president’s bidding, what need is there for legislative give-and-take?
Supreme Court Chief Justice John Roberts described the problem acutely in a 2013 dissent in a telecommunications case, criticizing the court’s deferential opinion in favor of the Federal Communications Commission. “The administrative state ‘wields vast power and touches almost every aspect of daily life.’ . . . The Framers could hardly have envisioned today’s ‘vast and varied federal bureaucracy’ and the authority administrative agencies now hold over our economic, social, and political activities. . . . ‘[T]he administrative state with its reams of regulations would leave them rubbing their eyes.’
The House has passed several bills aimed at reining in this shadow state but the bills have met opposition in the Senate and then-President Obama would have vetoed them anyway. As White points out, Obama didn't invent the administrative state but he leveraged it to meet his ends without Congress. The EPA, with its radical "Clean Power Plan," is perhaps the most egregious example.
The Obama administration, according to White, also used inaction on regulatory statutes. It did not, for example, enforce immigration laws. "Guidance" documents became the most controversial regulatory innovation. The Education Department's "guidance" on how colleges should handle sexual assault accusations is an example (the guidelines virtually eliminated due process for the accused).
White's article was written before the Trump administration got underway, and some of the regulatory rollbacks he advocates already have happened. But for the long haul, President Trump must get Congress to assume responsibility that it has shirked by writing vague laws:
For at least a century, Congress has enacted laws, written in dangerously vague language, that vest federal agencies with immense power. If President Trump wants significantly to shift federal energy policy for the long haul—which will be necessary to signal to firms that the policy environment will be sufficiently stable to justify capital investment—he’ll need, for instance, to get lawmakers to amend the Clean Air Act to prohibit future Clean Power Plans. If he wants to keep future regulators away from the Internet, he’ll have to encourage Congress to amend the Communications Act of 1934 and the Telecommunications Act of 1996. And if he wants to prevent the IRS from harassing conservative organizations and religious institutions, he’ll have to get legislators to write protections more clearly into the relevant statutes.
Reforming those statutes is only one-third of the legislative task, however. The next part involves the procedural laws that govern agencies, such as the Administrative Procedure Act of 1946. Seventy years after its passage, agencies have proved all too willing to circumvent or minimize the procedural requirements that Congress imposed to promote transparency and public participation in regulation-making.
While the 1946 Congress passed the act in light of the administrative state as it existed at the end of World War II, today’s regulatory state is far more expansive. Accordingly, lawmakers should consider enacting the “REINS Act,” a law, passed by the most recent House of Representatives, denying agencies the power to finalize the most burdensome regulatory programs without first securing congressional approval. Congress should also adopt the “Regulatory Accountability Act,” another law passed by the House, which gives the public greater participatory rights in agency rule-making and requires agencies to analyze the costs and benefits of consequences of potential new regulations.
White also writes that the authority to create new agencies must be reformed. The Dodd-Frank Act, for example, created entirely new agencies with powerful directors who have no oversight by the elected branches of government.