A bill to restore some level of constitutional sanity to the federal regulatory state recently passed the U.S. House and caused a total freakout.
The REINS Act would require congressional approval before major regulations imposed by federal executive agencies such as the FDA, EPA and OSHA went into effect.
When I say passage of the REINS Act would restore some constitutional sanity, of course I’m speaking in relative terms. In fact, these regulatory agencies shouldn’t constitutionally exist in the first place. But passage of the act would at least return legislative authority back to Congress where it belongs.
In the American constitutional system, all legislative authority was vested in Congress. Legislative authority means the power to pass laws. The Constitution delegates the executive branch no legislative authority whatsoever. The president, and by extension the agencies under his control, lack any authority to issue edicts, write rules and regulations, or legislate in any manner. In an essay known as “Helvidius” Number 1, James Madison clearly states the president’s power extends only to putting existing law into effect.
The natural province of the executive magistrate is to execute laws, as that of the legislature is to make laws. All his acts therefore, properly executive, must pre-suppose the existence of the laws to be executed.”
Constitutionally, Congress makes law. The executive branch “executes” – puts the law into effect. But in the modern conception of American governance, Congress has unconstitutionally delegated its law-making power to executive bodies, essentially vesting broad legislative authority to agencies like the EPA. The REINS Act would return legislative authority to the legislature where it constitutionally belongs.
Some progressives will argue agency regulations don’t count as laws. They claim Congress creates the framework “or law,” and the executive agencies execute them by creating a regulatory structure. But by definition, government rules and regulations are “law.” Noah Webster’s dictionary defines law this way.
Municipal law, is a rule of civil conduct prescribed by the supreme power of a state, commanding what its subjects are to do, and prohibiting what they are to forbear; a statute.Municipal or civil laws are established by the decrees, edicts or ordinances of absolute princes, as emperors and kings, or by the formal acts of the legislatures of free states. Law therefore is sometimes equivalent to decree, edict, or ordinance.”
Clearly, an EPA regulation falls under this definition. It certainly isn’t a mere suggestion. Therefore, only Congress has the authority to pass such laws (or regulations is you prefer.)
No for the freakout.
Predictably, the left went ballistic. The Huffington Post called the REINS Act “the most dangerous bill you’ve never heard of,” deeming it a “roadblock.”
In 2015 there were 43 such major federal regulations passed to protect the public; among them were food safety regulations, the Clean Power Plan regulating pollution from electrical generating facilities, net neutrality rules protecting the internet from monopoly, restrictions on predatory lending and energy efficiency standards for appliances.
“If the REINS Act had been in effect, it’s unlikely that the Tea Party-dominated Republican caucus in the House would have approved of any of these rules. Future standard setting under the entire body of legislation enacted over the past 40 years to protect the public, from the Clean Air Act to the Dodd Frank financial sector reforms, would be frozen. Over time, as new health, safety, consumer and labor protection issues arise, all of these laws will effectively have been repealed, with no public debate and no accountability. It will also be impossible to restore them as long as the REINS Act is in effect, because by requiring Congress to approve every regulation, it makes it impossible to pass technically complex and scientifically valid rules on any topic of controversy.” [Emphasis added.]
Of course, the notion that putting legislative authority back in the legislature where it belongs would somehow limit public debate and accountability should send you into fits of hysterical laughter. Congress exists as the only body in the federal government where public debate actually does occur. And members of Congress must at least answer to the electorate. Bureaucrats entrenched in various federal agencies scattered about Washington D.C. answer to nobody. They issue decrees, and promulgate rules and regulations by the volume that impact the lives of millions of Americans with virtually no public debate or accountability.
In fact, this was the very reason the founding generation vested legislative authority in the legislature, and removed it from the purview of the executive branch. They did not want to concentrate power into the hands of a single individual or branch of government. Thomas Jefferson warned Pres. Washington about the danger of this kind of consolidation of power.
I said to [President Washington] that if the equilibrium of the three great bodies, Legislative, Executive and Judiciary, could be preserved, if the Legislature could be kept independent, I should never fear the result of such a government; but that I could not but be uneasy when I saw that the Executive had swallowed up the Legislative branch.”
The executive has, in fact, swallowed up the legislative branch. Granted, Congress let it happen. But that doesn’t legitimize the transfer of authority. The REINS Act represents a modest attempt to return legislative authority to the legislature. Granted, virtually all of this regulation falls outside the scope of federal authority to begin with. It should properly all happen at the state level. Passage of this bill would fundamentally do nothing to rein in federal overreach. Washington D.C. never actually fixes Washington D.C.
Nevertheless, the REINS Act, and the accompanying freakout, vividly reveals just how far America has strayed from its constitutional moorings. Even a modest attempt to enforce constitutional separation of powers elicits howls of protest.