Congress should establish a commission to identify archaic and wasteful regulations and another to identify failed or needless executive-branch programs. Each would take suggestions from the public and work with congressional support agencies to ensure the cuts are sensible. Upon completion, each commission’s report would be delivered to Congress for introduction and a prompt up-or-down vote. So long as the program and spending reductions and terminations are modest and defensible, congressmen would have a difficult time voting against such a package.
The latest issue of National Affairs contains a few articles on the topic of Congressional weakness vis-a-vis the administrative state. In a subscriber-only article, Charles J. Cooper, after despairing of role of the Supreme Court in protecting the administrative state, offers this:
The only other way to correct the Court’s constitutional mistakes is for the people to do it themselves. The Constitution provides a procedure for the American people — ”the only legitimate fountain of power,” as Madison emphasized in Federalist No. 49 — to rein in an out-of-control federal bureaucracy, even in the face of congressional opposition. That procedure is the Article V convention process, by which two-thirds of the states can call a convention “for proposing amendments,” subject to ratification by three-fourths of the states.
You may recall that my suggested remedy is to have Congress focus on re-chartering each agency every few years. One goal would be to remind agencies that they are answerable to Congress. My thought is that this might make the FCC or the EPA less frisky about expanding their power and scope.
Anyone can give a speech or pass a bill promoting accountability, but as you know the details often get fixed in the opposite direction, or the implementation process gets captured. The regulations themselves, on paper, that establish the administrative state may not look so bad. They may even look modest. Why then should we suppose that arcane meta-regulations would be any different? Who will write those rules and enforce them? Who will confirm that the evaluations are really accurate and comprehensive?
“You may recall that my suggested remedy is to have Congress focus on re-chartering each agency every few years. One goal would be to remind agencies that they are answerable to Congress.”
This strikes me as a really bad idea.
I know financial regulation best. In the years leading up to the crisis, there was lots of pressure from Congress to relax financial regulation (particularly capital requirements, which I know professor Kling has written about several times). After all, why keep requirements so high when no banks had been in trouble for a decade?
Pressure from Congress still matters – it just gets filtered in such a way that it can be resisted and blocked out for long periods of time.
Think of Congress as a body that changes its mind every few years in a hyper-reactive manner. The idea that such a body would produce better governance is absurd.
I understand the libertarian desire for less administrative state, but the solution for that is smaller government, not more democracy. Put simply, more democracy is not the same as smaller government – not at all.
Just FYI, Arnold is not a professor.
He’s a successful middle manager, entrepreneur, teacher, and one of my favorite writers. I think his lack of an academic position is evidence of the failings of academia, but nonetheless.
Which brings up a question I’ve wondered about.
Arnold – How do you keep your high school students from taking over the comments section of this blog with dick jokes? We for sure would have done that (anonymously, of course, we were too nerdy to court suspension) at my high school.
I see your point, but you are also assuming that regulation wasn’t the problem. Require people to hold nominal triple A housing credit and we”ll make more, just for example.
Some laws have built-in automatic sunsets. Lots of jurisdictions use these, for example, to insist that purportedly ‘temporary’ sales tax increases to fund some particular project actually stay ‘temporary’ (absent popular re-authorization), which otherwise wasn’t happening despite politicians promised it would (go figure…)
You could use this to force reformers to bet within their own legislation.
If a law is passed because it has a particular purported benefit, then it should self-terminate if that benefit isn’t achieved in, say, three years.
Consider the Bloomberg nanny-state soda-size nudge law; no drinks bigger than 16oz. (Yes, I know it was thrown out because the health board didn’t have authority and excluded certain institutions without good reasons, but let’s assume something similar is valid.)
It was claimed at the time that the soda-size law would create major public health improvements because of Sunstein-Thaler “Behavioral Science Insights”™ and we’d see big changes in obesity, cardiovascular disease, etc.
We are used to have these debates before the legislation, where wild claims are made with impunity and lack of accountability. But much easier to run the experiment and see what happens. If an advocate really believes in the wild claims of huge improvement, then why would they object to self-terminating language? And an opponent will put up much less resistance if they know that the new regime will only last a few years, and that at least when it’s over they’ll be able to point to real data about the failure of the program to suppress new unjustifiable initiatives.
Yes, people will try to game the data and decision points in many ways, but it’s still an improvement over what we have now. At the very least, health boards will be forced into awkward consistencies, since it’s awfully hard to claim that the soda law really significantly reduced obesity and disease and thus got to avoid self-termination, and simultaneously claim the crisis is as bad as ever.
Here follow two comments made August 24 to Michael Greve’s post at Libertylawsite.org:
For a “stop-gap” proposal (not a permanent solution):
Take away regulation and rule making powers (of all kinds) from the agencies responsible for inspections and enforcements.
Establish a separate body of professional “Regulation Writers” (with specialty divisions) to which the various agencies submit requests for issuance of regulations, rulings, interpretations. In other words break up the “vertical integration” of the regulatory state.
Stop all forms of possible “self-funding” of agency activities (of any kind).
Of course continue the program of examining existing regulations.
But, for the longer term, we will need the “New Court” which has been suggested in prior posts and will be repeated subsequently
A New Court
Perhaps someone of the competence of Michael Greve might don the mantle of Richard Armey and undertake the design of a Judicial function ancillary to (1) the oversight responsibilities of Congress; and, (2) the “defense funds” suggested by Charles Murray in his “By The People.”
Congress has the powers to create additional courts of particular jurisdiction.
There is, for example, a Court of Claims. There are bankruptcy courts (or courts “sitting” in bankruptcy).
The existing legal system is clogged with matters of the operations of the Federal Administrative State; the blockages of those remedies serve as an instrument for administrative malfunctions of multiple origins.
Congress can create a Court that, upon submissions, can supply what should be the execution of appropriate oversight by Congress – just like “base closings,” that the political process stymies. Such a Court could be given that much jurisdiction and power subject only to legislative “veto” (up or down- no revisions) within a stipulated period (120 days? or the Court’s rule is final, no appeal, equivalent to legislative remedy).
The Court’s jurisdiction shall concern the actual (and demonstratively prospective) effects of the forms and conditions of enforcements (without regard to existing judicial precedents of a general nature) in specific instances. It shall have full
injunctive authority through the District Courts and may suspend or terminate any part or all of any regulations or “guidelines & interpretations” etc.. It may terminate an agency’s exercise of any and all powers, or particular powers, or set enforceable conditions for their exercise; discipline or remove agency personnel, authorities and any contracting parties.
Only Congress, within stipulated periods of time (which might be in different schedules for different determinations) can set aside (but not modify) its decisions.
This Court might be administered in circuits. Conflicts amongst circuit judgments would be resolved by Congressional action.
Most important, parties affected (even prospectively) would have immediate access; an option to by-pass “agency reviews” and the APA (heart by-pass anyone), and apply for injunctive relief.
It will take some time; care for details; but supplant some of the deficiencies in Congress’s responsibilities – and begin to throttle back rampant regulatory metastasis.
It could begin to revitalize our legal system and timely public access for private litigation.
It would answer: “Quis custodiet ipsos custodes?”
If not: “Quo Vadis?”
Reports are done at least once a decade, filed and forgotten. No, congressional opposition is 218+ 60+ 1 or 218+ 66+ 0. Any less is grandstanding. What should be the expiration date for the constitution?
If Congress were serious about reining in the executive branch and the independent agencies, it would simply propose a Constitutional amendment re-affirming the separation of powers: “No executive or judicial body shall exercise any legislative powers, whether or not Congress purports to delegate those powers.” The point would be to prevent the executive and independent agencies from legislating. There would need to be a future effective date, so that Congress could wade through all the administrative law before is expired.
I’d love to add the following to sentences to that:
1. “No executive body shall exercise judicial powers, regardless of whether or not Congress purports to authorize those powers.” The point is to end the practice of administrative law judges.
2. “Every officer or employee of the United States, except for its Vice President, serves at the pleasure of the President of the United States, except for (a) employees of Congress or the judiciary, (b) employees appointed under a civil service law passed by Congress, and (c) unpaid members of any commission if its powers are limited to conducting investigations and hearings (without the power of subpoena) and issuing reports.” The point of this would be to end the possibility of independent agencies that are not answerable to the President.
Max
Perhaps I don’t understand the debasement of our representative branch with party politics, but I’ve never been able to understand why the vociferous opponents of an agency over intransigence against Congress, or misbehavior haven’t followed up their speeches by introducing legislation to re-open the agency’s authorizing legislation. Sure, for the rank and file, it would be tilting at windmills, but the Washington crowd know that such things can go “viral” if they arise often enough. Not to mention, there are often backwater provisions in the law that would make for “good tv” in this age of 24-hr news outrage.
And the most terrifying question to a bureaucrat is “What are you spending the $xxx millions in your budget on now”. The whole of DC goes to great length to only discuss a % increase, no actual numbers, nor where the current budget is being spent.