Investor’s Business Daily: Congress Must Regulate The Regulators To Restore Accountability

Originally published by Investor’s Business Daily October 12, 2018.

Although Congress deserves its share of criticism for the myriad rules governing our lives, the dozens (if not hundreds) of administrative agencies that comprise the federal “regulatory state” are not passive actors in someone else’s game. Nowadays, most legal mandates that govern our lives are not actually issued by Congress; they’re instead issued by the multitude of agencies (and sub-agencies) that Congress supposedly oversees.

Since 1995, administrative agencies have issued over 88,000 federal rules and regulations (Congress, by comparison, has issued around 4,300 laws). This is not just a problem of overregulation. By permitting largely unaccountable bureaucrats to wield Congress’s power to legislate, this scheme evades the Constitution’s separation of powers and subverts structural protections for individual liberty.

All three branches of government have been complicit in this perversion of the Constitution’s structure. As my colleagues have pointed out in earlier articles, the executive and judicial branches both have tools they can use to rein in agency rule-making. But because it has delegated away its authority, Congress is the original violator. It therefore has both the obligation and the means necessary to provide to better control and regulate agency rule making.

Regulators Need Accountability

For instance, Congress can use laws like the Congressional Review Act (CRA) to restore democratic accountability to the rule making process. The CRA requires agencies to send their rules to Congress before they can take effect. After an agency submits a rule, Congress has 60 days during which it may issue a joint resolution disapproving the rule, which would render the rule void.

The CRA is powerful tool for Congressional oversight, but federal agencies have frequently failed to submit rules to Congress. And even when they do, Congress rarely invokes the act (though that is starting to change under the current administration). If Congress is serious about scaling back regulatory sprawl, it should use the CRA to promote debate over onerous or controversial agency rules, and to ensure that both houses actually approve rules that significantly impact people’s lives.

Congress: Taking Back Power

While the CRA is important, some have suggested enacting even stronger bulwarks against agency action. The proposed Regulations from the Executive in Need of Scrutiny (REINS) Act, which has been approved by the House of Representatives, for example, is a lot like the CRA, but reverses the burden of Congressional action.

Under the CRA, Congress must take action to stop a rule from going into effect. Under the REINS Act, Congress must take affirmative action in order to permit a major rule to go into effect. The REINS ACT, or something like it, would ensure that bad rules do not become effective by default. It would also return the responsibility for major regulations to our politically accountable representatives in Congress.

Perhaps the biggest objection to Congressional use of the CRA or the REINS Act is that Congress lacks the expertise necessary to evaluate agency regulations, which are often based on scientific or technical knowledge. That objection ignores the fact that, in large part, so-called “scientific” or “technical” decisions are actually often decisions about how to weigh competing interests when choosing a means of achieving a given goal. In other words, agency decisions are frequently outright political decisions disguised as technical ones.

Moreover, Congressional review will require less knowledge about the science underlying agency rules than it will require knowledge about the effect of proposed rules on the regulatory environment.

Where Congress lacks that knowledge or expertise, Congress should bulk up on committee staff tasked with analyzing regulations for their economic effects. Congress could, for example, create a new congressional agency similar to the Office of Information and Regulatory Affairs (OIARA) within the Office of Management and Budget (OMB), which reviews all major, proposed executive agency regulations and conducts cost-benefit analyses.

Better Laws Needed, Too

Similarly, Congress should give more authority and bigger budgets to the two committees in Congress responsible for governmentwide regulatory reform legislation. Either way, that will require Congress to hire additional permanent, professional staff with expertise in conducting independent economic and regulatory analysis of proposed rules. Hiring staff of its own will reduce the need to delegate or defer to the same tasks performed by executive branch agencies — which enjoy almost no Congressional review — and ensure that Congress actually approves significant rules.

While Congressional involvement is important, it still is no substitute for simply writing better statutes that do not delegate broad legislative power to administrative agencies. Agencies can provide significant input in the process of formulating regulations — either by proposing or commenting on new regulatory mandates.

But it is Congress’ responsibility to actually analyze the proposed rules that Americans must follow, hold hearings, and consider input from affected constituents before deciding to put a new legal obligation in place.

In short, Congress needs not only to regulate the regulators by ensuring that agencies do not overstep their limits, it also needs to roll up its sleeves and do the hard stuff itself — rather than delegating in the first place. While these tasks may require additional Congressional staff, that’s a small price to pay for restoring democratic accountability to the regulatory process.

Boden is an attorney with Pacific Legal Foundation.

Read all installments of PLF’s regulatory reform series published in Investor’s Business Daily:

Part 1: “Taming the Regulatory State: It’s a Constitutional Imperative” by Todd Gaziano
Part 2: “Reining in the Regulatory State: Restoring the Separation of Powers” by Tommy Berry
Part 3: “Only Strong Judicial Review Can Restore Separation of Powers” by Tony Francois
Part 4: “Rule Makers Must Follow the Rules, Too” by Jonathan Wood
Part 5: “For Regulatory Reform, Washington Should Start with the Tools They Have” by Damien Schiff
Part 6: “Congress Must Regulate The Regulators To Restore Accountability” by Anastasia Boden