I’d propose a simple rule for all future regulations. If you’re a federal agency, and you want a regulation that would unduly burden low-income families, you’ve got to go to Congress. If they want it, they should have to fight for it—on the record. It’s your government; you deserve a voice and a vote.
My thought is to cross out the phrase “that would unduly burden low-income families.” In other words, all regulations would have to be passed as Congressional legislation. And each regulation would require a separate vote.
Discuss.
You are 100% correct.
Seems like a surefire way to ensure no/few new regulations. Plus I’m not at all sure that Congress people are really the appropriate judges of regulations across all sorts of domains. Nor do big bills with lots of details don’t ensure goodness (or even time to read/analyze).
I do favor the idea of more actual votes on items though (rather than having all sorts of things get stuck in committee and never voted upon).
If you were starting from scratch, that might well be a good idea. But you can’t get there from here. In order to amend any regulations, you would need an act of Congress, so that for the remainder of time we’d be governed by those regulations existing in 2014.
Incompatible with the modern world.
Just to play Devil’s Advocate, would throwing regulatory issues in front of a Congressional Committee just politicize the rule-making process? Increase the power of lobbyists and Baptist/Bootlegger coalitions? What does public choice theory tell us about this kind of proposal?
If I were a Congressperson I’d say that the a major advantage of the rules-making process is that the politically tough decisions are made by someone else and are less likely to affect my job (i.e. reelection). I’m also a bit confused about the process here — how is voting on the regulation easier than passing a bill? If it’s different, is it constitutional? What happens if Congress refuses to vote on the regulation (remember that every few years this organization can’t even issue a budget)? And if Congress rejects a rule, then what — does the agency rewrite it and try again?
Professor:
It is a difficult legal proposition. The related idea in constitutional law in the US is called delegation. Everyone recognizes that, when Congress authorizes an agency to write some rules, it is effectively delegating legislative authority. There is a constitutional constraint on that delegation. The courts require that there be sufficient Congressional guidance to tell the agency what it is supposed to write. In practice, that is very little.
So, one approach would be a change within the court that reaffirms a more vigorous separation of powers. That is unlikely, because courts don’t like to invite conflict with the legislative and executive branches, and especially not by overturning precedent.
A second approach might be a bill stating the sense of the legislative and executive branches that the court have given unconstitutionally excessive deference to the legislative and executive branches in determining that the constitution. I have no idea what that might do, but it seems like the kind of thing that you might get to pass because some people would vote for it thinking it would do nothing.
A third approach would be to do the same thing by way of constitutional amendment. Getting one on such a technical matter would be unlikely.
A final approach would be a law amending the administrative procedures act, which says what a rule-writing agency must do before exercising delegated power. There are apparently some limits here. One is supposedly that the Constitution only allows Congresspersons to introduce bills. So you can’t by law say that an agency can write a rule and put it up for a vote. I’m not sure I buy this. The Constitution gives each house the right to control its own proceedings, and I don’t see anything actually talking about the introduction of bills. So, all you would need is something saying that agencies have no rule-making power, but have the authority to present proposed bills to Congress, and at least one of the two houses to have an internal rule saying that such a proposal will be docketed as an introduced bill. This certainly seems the area where someone could get creative.
Max L.
I usually find, on topics like this, Hayek was there already in Road To Serfdom:
“The fault [of the failure of parliaments] is neither with the individual representatives nor with the parliamentary institutions as such but with the contradictions inherent in the task with which they are charged. They are not asked to act where they can agree, but to produce agreement on everything … Majorities will be found where it is a choice between limited alternatives; but it is a superstition to believe that there must be a majority view on everything.”
This is why parliaments “delegate” everything to bureaucracies. There is certainly no universal political agreement that, say, CO2 is a catastrophic pollutant – I don’t want to start a global warming debate, but congress can’t pass a law that taxes it because they would get thrown out. But you can’t throw out a bureaucracy.
Strict congressional oversight for all regulations is a pipe dream, which would undo the reason why bureaucracies are established to begin with, which is that the people’s representatives don’t have the bandwidth or agreement to oversee everything directly.
Imagine if congress directly oversaw and voted on all 100k pages of regs that gets pumped out by the feds every year.
One potential problem with it: the regulations would then be law. At the moment, regulators have the power to quietly waive or alter regulations, too. And, although it’s less common than creating them, they actually do it.
I have no doubt that if Congressional involvement were required, the processes would be altered to assure rapid passage, so there would be limited additional barrier to the creation of new regulations – but they might well be harder to waive, alter or cancel.