Regulators regulate. In the absence of adult supervision they still regulate.
Think about that a moment. Every morning tens of thousands of persons (no one really knows how many) go to work, with no higher calling than making regulations that the rest of us have to live with. Who voted for them?
How busy have these thousands of regulators been? The numbers tell the story. The first Federal Register was issued in 1936. It contained eleven pages! For the first 147 years of the nation’s existence under the Constitution we somehow managed to get by with only eleven pages of regulations. During that time we went from an insignificant state to the most powerful and economically vibrant nation on the globe. By 2008 the Federal Register contained 31,879 documents and 79,435 pages, while the Code of Federal Regulations comprised 163,333 pages in 226 individual books. Rules have been accumulating at a rate of nine pages a day since 1936.
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This is nothing compared to what the Obama administration has in store. The Federal Register has grown 20 percent in just the last two years, and there are another 4,225 rules already written and winding their way through the system. And this does not even include what Obamacare and Dodd-Frank are going to do. Just policing the regulations already in place costs $55.4 billion a year. But this pales in comparison to the $1.75 trillion hidden tax that regulations place on the economy every year.
In recent months the regulatory assault has reached new heights. Does anyone really believe it is a good idea to allow a few bureaucrats to close down oil exploration in the Gulf of Mexico, at a time when we feel it necessary to release oil from the country’s strategic reserve? Is it truly possible that four unelected functionaries on the National Labor Relations Board (NLRB) can order Boeing to scrap a billion-dollar investment in South Carolina, because they want Boeing’s production plant built in a more “labor-friendly” state? Not satisfied with this, the NLRB’s gang of four went on to unilaterally change rules for voting for union representation that had been settled for more than 60 years. The NLRB was supposed to be the neutral arbiter that would bring labor and management together. Now it has chosen sides, and, if the gang of four get their way, it will have all but ensured a renewed era of union/management warfare.
We also were recently informed that the Federal Trade Commission (FTC) is subpoenaing Google’s records to see if it is misusing its search dominance. The news came at an interesting time, as IBM was celebrating its 100th birthday. Most of the news articles celebrating this milestone mentioned that what made IBM’s longevity a true wonderment was that it had survived numerous assaults on it by our own government. Does anyone remember the posters featuring the $200 million the United States spent trying to wreck Microsoft before 2001, compared to the zero dollars spent hunting Osama bin Laden? If you want jobs to come back, you need a government that can refrain from putting successful businesses into its cross-hairs.
When Congress created the NLRB, I doubt that it meant for the agency to declare war on American business. Likewise, no one in Congress assumed the FTC would launch a crusade targeting the most successful American companies. Did anyone in Congress guess, when it created the Energy Department, that it would take as its priority mission to reduce the amount of energy resources available to Americans? And did anyone in Congress ever guess that the Environmental Protection Agency (EPA) would work day and night to drive a stake through the heart of American industry?
The worst part of it is that none of the bureaucrats making these economy-crushing decisions can be held accountable for their actions. We can’t vote the NLRB’s gang of four out of office. We can’t throw out the heads of the EPA, the Energy Department, the FTC, or any other regulatory agency. And even if we could, the tens of thousands of bureaucrats they command would continue churning out new regulations from now until doomsday.
What is required is that Congress take charge and be responsible for its creations. After passing a new law, Congress can no longer be permitted to hand the regulatory implementation of it off to a faceless government agency, and by doing so wash its hands of the outcome of its laws. Instead, every regulation must be presented to Congress before it takes effect. Congress must vote to approve or disapprove every regulation within 90 or so days of its submission by the regulatory body. No vote, no regulation. Moreover, any regulation that has a projected economic impact (positive or negative) of over $100 million must be voted on individually and not be included as part of a regulatory bundle. I would go even further and require that every regulation already in place that has an economic impact of over $100 million must also receive Congress’s blessing within a year or be rescinded.
Such a requirement will make Congress accountable for everything it enacts. It will also tell the voters whom they can hold responsible when regulations run amok. Lawmaking by regulatory bureaucrats must come to an end. The Constitution gave the power to make laws to Congress. Congress needs to reclaim that power.
— Jim Lacey is professor of strategic studies at the Marine Corps War College. He is the author of the recently released The First Clashand Keep from All Thoughtful Men. The opinions in this article are entirely his own and do not represent those of the Department of Defense or any of its members.
great statistics that put the problem in focus. When people say "get government out of the way", it is regulations that they refer. I think your plan should be a major plank in any GOP candidates campaign.
"When Congress created the NLRB, I doubt that it meant for the agency to declare war on American business."
Except that is exactly what they wanted to do. There have been some decent reforms to the NLRA over the years but it was primarily created to bolster unionism.
Of course Congress is aware of the consequences of their actions when creating these executive branch agencies. Come on, it has been happening for 70 years. Am I to assume that every Congress has been filled with a bunch of glue eating morons? Well, maybe...
Doesn't the Constitution give exclusive authority to make law to the Legislative branch? Nowhere in the Constitution does it give the Legislative branch the authority to give that power to any other body, and certainly not to the executive branch, whose exclusive function is to execute the laws made by Congress, not make them!
The fact that we even have to talk about this is evidence of how far afield of the Constitution we have come! The Constitution already forbids the very law making process we currently suffer under with "rules" being made by unelected members of the executive branch! Does anyone really think that a "rule" is not the same thing as a law? Does it depend on the definition of "is?"
We don't need a new law or regulation or rule or plank that requires Congress to be the law making body. The Constitution already does that. Congress doesn't obey the Constitution now, and neither does the executive branch. It is clear the Courts are also on board with this collusion. Does anyone really believe making new rules will fix the problem?
This problem of overreaching by the federal government will only get fixed when the States take their authority back that was taken from them, and begin to say NO to the federal overreaching, and take seriously their responsibility to protect their own citizens from overbearing, unreasonable, and unconstitutional laws.
I agree with Bill. There may be a judicial solution to this problem. Congress has the power to legislate, it does not have the authority to delegate that responsibility to a bureaucracy that is a part of the executive branch.
All regulations that are not specifically approved by Congress are NOT laws. In fact, they are unconstitutional - and should be challenged. The executive branch does not have the authority to unilateraly make law - but that is exactly what happens when these bureaucrats create rules and regulations that have the force of law.
I agree with the point of the article - that regulators are out of control, unaccountable, and are strangling the economy. I disagree with the proposed solution: that we need a law requiring regulations to be approved by Congress. I disagree because the Constitution ALREADY requires that all laws be passed by Congress. Therefore, the solution is a legal one - we need to challenge regulations in court and get the process of their creation recognized as unconstitutional. The result would then be that all new regulations would have to be approved by Congress.
You're late to the party. This challenge was already brought back during I think during the New Deal, and the Court basically ruled, "Yeah, we know the Constitution *says* that, but it would be impossible for the government to do all it needs to do in the modern era unless Congress delegates its authority, so therefore it can."
Josh S: This would not be the first time the Supreme Court blew it. Recall, if you might, Dred Scott, Plessy v. Ferguson and Roe v. Wade (and to a lesser extent, the Slaughterhouse decision regarding the 14th Amendment).
Thank you for the numbers. I've been stating this in a different way since I've been on this site. If it does not pass through the Legislative and Executive branches, it is not a federal law. It is not possible to delegate any power, or it would be possible to delegate all of them; which would then allow an non-representative government.
With each passing generation, the beaucracy continuously feeds itself. It's become so self-sustaining that Congress now introduces bills to stop regulations illegitimately implemented by appointed cronies. There's a reason I usually put FDR as the worst president. An attempted dictatorship or monarchy is not welcome here. He supplied the snowball and the mountain.
Again, thank you for the numbers. I rely on common sense for the most part; and that usually tells me the facts will back me up. There's always someone who wants to take what you have. You must always be willing to defend it. Freedom is magnificent. Our Documents put into words, our will, as a warning to usurpers and interlopers.
To convince people to distrust regulators and to vote against those who would increase and enable bureaucracies, tell them to think of regulators as the cast of "The Office".
Mr. Lacey - I've been saying the same thing in different comments on this site and on PJM. (Note: You omitted the EPA's trying to institute cap 'n trade through regulation.) I would go further and declare all such regulations unconstitutional until repassed by Congress. Also, I would make even spelling errors subject to Congressional approval. One final thing: each new regulation, or change to an existing regulation, must be presented to Congress as a bill that Congress votes up or down; regulations that pass muster should then go to the President for his signature. Any proposed regulations that are not taken up, expire at the end of the Congressional term and must be resubmitted as a new bill to the next Congress.
"Does anyone really believe it is a good idea to allow a few bureaucrats to close down oil exploration in the Gulf of Mexico, at a time when we feel it necessary to release oil from the country’s strategic reserve?"
Depending on the circumstances, yes. What, it's something that should be submitted to popular vote? What, Congress can turn on a dime if another well explodes?
We live in 2011, not 1811. There are lots and lots and lots of important decisions that must be made every day. This is simply a function of the world we live in. Who makes these decisions is the name of the game. I'm happy to consider any proposed alternative to "a handful of bureaucrats." But I can't simply wish my way back to 1811 and imagine that there are no such decisions to be made.
The point is democratic accountability. The vast federal bureaucracy is answerable to no one. The citizens of this nation have no recourse to the law, and many bureaucracies now are taking upon themselves to write thier own regulations instead of executing existing ones created by Congress (see the EPA and CO2).
MikeB you miss the point altogether. All these important decissions you say must be made are not the responsiability of the government in the first place. They have greatly overstepped there authority under the Constitution.
One size does not fit all, so the states should take back their authority as should the local governments.
You seem to be void in knowledge of the oil rig explosion. The Government , failed to do their job in the first place as they didn't inspect the blow out preventer. Had they done their job with due dilligence this situation should not have happened. Lets put more laws on the books they cannot or will not enforced either, so we can put more laws on the books, etc., etc., etc.
Accidents and greed cannot be legislated out of existance, but the bigger the govt. gets the more greed (fraud) and waste has increased.
1.4 trillion in waste and fraud in medicare (GAO report#159) this would be enough to bankrupt a healthy company. Govt. bureaucray has never been, in modern times, efficent nor effective.
Nice article Mr. Lacey - it should be on the front page of every newspaper. About a year ago, I was at a talk by Charles R. Kesler of the Claremont Review of Books. He made the point that the idea of delegating congressional rule-making authority to bureaucrats first surfaced duing the New Deal. Many people thought that such a thing was illegal. It got a lot of attention back then. Now it is pretty much taken for granted. I think your $100M threshold is way too high. Some out-of-control agencies (EPA) should be reduced to data collection and research only - EVERY regulation would need approval by congress.
In talking to a home plans designer recently, I found out that the wall bracing code section of federal regulations recently increased from 16 pages to over 100. He stated that they are going to have to raise their prices due to the increased calculations and planning required.
Frankly, the government is killing the country and things are rapidly approaching a situation where either the government survives, or the country does-but not both.
There's accountability, but not as direct. It's the price we are constained to pay to live in a country that can't be governed by direct legislation in 2011 the way it could be and was in 1811 (any more than the President can wait for a declaration of war before pushing the nuclear button).
It doesn't help that the courts have decided to give Chevron deference to federal agencies. A lot of the abuse could be reversed by having the agency with the burden of proof to show that their actions were reasonable and consistent with the statutory mandate, instead of what litigants currently face, which is showing agency action was arbitrary and capricious.
I to have been making this point on this site for some time.
In my version all rules and regulations passed by all agencies are promulgated into a single omnibus act every six months. Each member of Congress then has ten days to call out any rule or regulation from the omnibus act to be considered individually. The omnibus act could then be passed on voice vote since no one objects to the rest and the controversial portions would be considered individually. Now, if Congress votes down a rule or fails to act in 60 days the regulation is null and void.
Moreover, the authority to pass any further regulation in this area shall be removed from the agency making the rule and establishes discilpinary and criminal penalties for willfully violating Congress's discretion in removing regulatory authority.
This is eminently flexible in any 2011 scenario and requires legislative approval for all laws enacted in the United States by the elected representitives of the people as required by the Constitution.
NJ Jim - I've thought a bit about your idea and here's my problem with it: It lets the Congress off the hook too easily. If Congress is going to impose these regulations on us, then it has to go through all the usual rigaramole of passing the regulatons as a bill. There have to be committee hearings where interested parties can present their views. If Congress gets bogged down because there a gazillion regulations coming down the pike, it may think twice about encumbering the rest all with those regulations. Also, it will not be able to encumber us with those regulations if it gets bogged down in the nitty-gritty of the regulations.
