Originally published by Investor’s Business Daily August 31, 2018.
According to one Mercatus Center study, each of us must obey over 1 million regulatory dictates, vastly more than the statutes written by our elected lawmakers in Congress.
But the sheer number is not the only, or even the worst, problem. The more troubling issue is the unconstitutional nature of the federal rulemaking and regulatory enforcement process. This process makes regulations more onerous, numerous, and inflexible — and their enforcement more arbitrary and unreasonable — than if constitutional principles were followed.
It’s time to tame the regulatory state. Happily, an exciting constitutional revival is underway that could help return all three branches of government back to the lawful constitutional order. Progress is being made, but completing this constitutional project will require long-term efforts.
In this series of articles, my colleagues from Pacific Legal Foundation (PLF) explore the regulatory state’s key structural violations and then identify targeted solutions to cure them. This installment provides an overview.
The desire for regulatory “experts” to protect us is understandable, and there was once a belief that regulation was apolitical. But even if that were ever true, all regulatory bureaucracies, once established, take on a life of their own. Without proper constitutional constraints, every regulatory fiefdom tends to become oppressive and self-interested, with a strong drive to expand its own power — so it can do even more of what it is doing with increased staff and ever more regulation. Within each bureaucracy, there is no realistic perspective on the costs of additional regulations.
In this manner, the black knights invited into the castle to protect us become our oppressors. The regulators’ subjective intentions may be benevolent (everyone thinks their actions are justified). But the bureaucrat reality makes them unresponsive to democratic input or oversight.
The problem is multiplied with scores of regulatory agencies, many of which have multiple regulation-issuing divisions. And the zealous regulators in each unit believe their noble mission (when you devote your career to something, it becomes noble), demands unquestioning adherence to their own rules.
Those tendencies in the growth and behavior of regulatory institutions are sober reasons for caution, but instead all three branches of the federal government bent the Constitution in the mid-Twentieth Century to fuel what Gary Lawson colorfully described as the “rise and rise” of the regulatory state, one that seemingly could not be reversed.
Congress alone is constitutionally authorized to write the laws that govern us — but this cardinal principle has been repeatedly violated. Congress cannot delegate broad lawmaking power to any other entity, but it increasingly has done so due to political expedience.
Meanwhile, the judiciary wrongly approved these sweeping delegations of lawmaking power to regulatory agencies, with almost no limits. The courts then compounded their dereliction of duty by deferring to the regulatory agencies’ interpretation of their own statutes.
Along the way, other constitutional principles were bent, or broken, to wrongly insulate so-called “independent” regulatory agency officers from democratic or other political direction once they were appointed. Meanwhile, enforcement policies, authorized by Congress and expanded by the regulatory agencies themselves, violated fundamental due process protections — and the courts wrongly upheld many of those violations.
If members of Congress are permitted to delegate the hard and politically risky job of writing laws, what will their practice be over time? They’re likely to abdicate their responsibilities for crafting sound policy.
If regulatory agency officials are permitted to interpret their already sweeping authority even more broadly, what will they tend to do? They’ll seek to expand that authority endlessly.
Runaway Regulatory State?
If judges are pressured by legal elites to defer to the other two branches’ interpretation of law, instead of performing their most basic duty of interpreting the Constitution and laws without bias or favoritism to the government, how many will stand up to the pressure? Not many, as we have seen.
Yet the story is not over. In America, the people are supreme, and we write our own history. Those of us who seek to return to first principles have the powerful advantage that the Constitution’s text is on our side. Our goal is to restore the Constitution’s separation of powers, the famous “checks and balances” designed to protect our liberty. We can use them to restore a constitutional, properly-divided government.
A renewed appreciation of the regulatory threat and its unconstitutional state is the first step in reversing course and restoring constitutional order. The current regulatory empire gained strength over a century of incremental growth, when misplaced faith in “neutral” experts was in vogue and taking the Constitution’s text seriously was out of favor. That is changing, and the defenders of the current unconstitutional order are on the defensive, but the end is not preordained.
Later in this series, my PLF colleagues will explore different aspects of the regulatory state identified above. More importantly, they will describe our strategies and solutions to return the government to its constitutional foundations.
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