Leadership from states could curb federal regulatory abuse

The growing power of federal bureaucrats to dictate regulatory edicts from Washington would be unrecognizable to the authors of our Constitution.

The ability of regulators to re-interpret laws passed years ago in ways never intended by Congress has become a serious threat to the checks on executive branch power that serve as the foundation for the rule of law.

If the presidential appointees can fundamentally reinterpret laws passed by Congress without the approval of the legislative branch, the very role of these elected representatives of the people is at risk.

{mosads}No one is safe if the president and his or her appointees can unilaterally use their power to regulate any business or business sector out of existence, with virtually no accountability to elected officials.

The problem is especially acute in a lame duck president’s second term, when that president will never have to face the voters again.
It is, for these reasons, now time to restore limits on executive branch power with a basic principle: “Regulations, like laws should have the consent of the governed.”

Just as “No Taxation Without Representation” was a rallying cry for those who fought for American Independence, “No Regulation Without Representation” can be a rallying cry for those who believe that democracy, not bureaucracy is what makes our system of government the best the world has ever seen.

Nearly all Republicans in the U.S. House of Representatives and some courageous  Democrats have in the past supported the so-called REINS Act to require the Congress approve major new federal regulations.

But it is very unlikely that the REINS act can get 60 votes in the Senate and even more unlikely that this president or a future president bent on expanding the regulatory authority of the White House would sign it.

However, while there may be a partisan deadlock in Washington, the further one travels outside the Beltway, the more unpopular federal regulators become.

It may well be that majorities of state legislators in 2/3 of the states would agree with the principle that federal regulators ought to be accountable to elected officials.

And just as pressure from state legislators was critical in persuading Congress to propose the original Bill of Rights, similar pressure could force Congress to curb the authority of federal regulators.

In fact, three times in American history,  pressure from states has helped force Congress to propose Amendments states wanted, starting with the Bill of Rights and including both the 17th Amendment for direct election of U.S. senators and the 22nd Amendment for presidential term limits.

That is one reason why 15 state legislative chambers, including the Tennessee Senate, where there was bipartisan support, have already passed resolutions urging that Congress propose the “Regulation Freedom Amendment” to the U.S. Constitution to require that major new federal regulations be approved by Congress.

The text of the Amendment is as follows:

“Whenever one quarter of the Members of the U.S. House or the U.S. Senate transmit to the President their written declaration of opposition to a proposed federal regulation, it shall require a majority vote of the House and Senate to adopt that regulation.”

This Amendment would make federal regulators accountable, by ensuring that the most controversial and consequential regulations would have to be reviewed and approved by Congress before they could go into effect.

With both houses of 31 state legislatures now controlled by Republicans, and the legislatures of 7 more divided with Democrats and Republicans each controlling one House, making federal regulators more accountable to elected officials could become a significant issue between now and November 2016.

More and more state legislators, as well as members of Congress will have to take a stand:  Should federal regulators keep their power to dictate from Washington, or is it time to make them more accountable?

And as bipartisan support for the reining in federal regulators grows, perhaps even those federal regulators and their overseers in the White House will take notice.  Perhaps the growth of support for this effort could even deter some excessive regulation–and perhaps as well some of the excessively broad delegations of authority which have enabled the regulators and for which Congress should be held accountable.

And perhaps just as important, support this effort will allow voters to distinguish between candidates for president who want to keep the power this administration has so vastly expanded, and those who want to restore Constitutional checks and balances on the abuse of power by the executive branch.

The deadlock in Washington can be broken.  And leadership from states and state legislatures can be a key part of making it happen.

Norris is majority leader of the Tennessee Senate and immediate past chair of the Council of State Governments. Gray was White House counsel to President George H.W. Bush. He is the founder of Boyden Gray & Associates, a constitutional and regulatory law firm in Washington, D.C.