whenever an agency or independent commission wants to make a new rule, it must submit the rule directly to Congress by a certain deadline. Congress would then have three options for responding. First, Congress could take no action, leaving the rule idle. (Whether this happens because Congress cannot reach a consensus or because lawmakers in fact approve of the rule is immaterial here.) After seven months of inaction, the rule would take effect and become binding law, provided the president assents to it. Second, Congress could pass a bill containing the rule, or an amended version of the rule; the president would then need to approve the bill, and then the rule would become law. (This second case is no different than the ordinary legislative process described in the Constitution.) Third, Congress could pass a “resolution of disapproval,” which would effectively veto the rule, meaning it would not be presented to the president and would not become law.
Read the whole article, which is about trying to revive the principle of separation of powers while continuing to have agencies that exercise all three powers. The example above would provide a legislative check on the rule-making powers of agencies.
With this legislative veto in place, Wurman argues that the agencies would not longer need to be independent of the executive. The agencies could instead fall under the control of the President, which is what the executive branch is supposed to do.
Wurman also proposes a way to check agencies’ judicial power. I was not able to follow the legal technicalities of his suggestion.
The ideas are impressive. However, in the end, I came away thinking of the proposals as putting lipstick on a pig. The pig is the notion that experts are capable of engaging in planning for everyone. That is the idea that is behind the creation of the agencies and giving them power in the first place. If we continue to operate under the assumption that expertise works well, then Wurman’s proposals would change nothing. And if we challenge that assumption, then the solution is to restrict the powers of the agencies.
To put this another way, it is the cultural status of the administrative state that needs to be changed. Its (un-) constitutional status derives from its cultural status.
For those concerned with the powers and effects of the Federal Administrative State [FAS] **first** read Mr. Wurman’s original (2/26/2016) essay on these ideas over at Libertylawsite.org under “Liberty Law Forum” – especially the “response” essays from other scholars. The comments there may also be enlightening.
The underlying problem here is that Congress created the FAS (and continues to add to it), resulting in transfers of responsibilities that its members have no desire to re-assume (in any form). Those responsibilities take time and can affect electability. Instead many of them have found a useful function as intermediaries between private interests (of all sizes) and the FAS.
The Constitutionally delineated government has limiting principles.
its powers were established separately to “oppose” or “balance” the other powers.
The FAS has no limiting principles. Its power is derived from centralization of powers (delegated and arrogated). Attempts to apply Constitutional limiting principles to the FAS by legislative action would assume that genetic studies indicate the development of new strains of federal legislators.
What is required is opposing power **in the hand s of those affected by the power of the FAS**. Charles Murray has suggested something similar to civil disobedience involving the legal system. Another suggestion, as THE opposing power, is a “New Court” providing direct access to those affected by the FAS, with *total* powers over the FAS (all segments; all actions).
Time is running.
Sounds remarkably like what we have today only the first is the commentary period. The pig is congress attempting to micromanage every detail and yes, most any other process is an improvement to that.
Lord,
No, **Congress** does NOT attempt to manage, let alone micromanage anything. Its memebrs attempt to create perceptions (THE political preoccupation) of “control” through “oversight,” seeking to determine “accountability” rather than results or corrects which managers must attain. They DO NOT WANT the responsibilities of management; those can affect electability.
Now, for the “Administrators” the story differs.
A problem that was supposedly solved by the invention of the administrative agency was that federal judges are not well equipped to understand the intricate details that must be decided in administrative law hearings. What hogwash. Federal judges, as a group, are terrifyingly intelligent and capable. Quite simply, if a federal district judge can;t understand something, no one else can either — and certainly not the people being regulated. If there is any group ill equipped to be making decisions, they are more likely to populate administrative agencies than they are the federal bench. So one of my preferred remedies is to push much, much more adjudication back to the federal courts and out of administrative law judges.
Max L.