This week, House majority leader Eric Cantor (R., Va.) is promoting a series of ten bills as part of his Stop Government Abuse Week (hashtag: #StopGovtAbuse). They contain some good ideas, and three of the bills in particular will help to shine light on some government abuses that don’t get enough attention.
A major source of government overreach is excessive concentration of power in the executive branch. There are three main reasons for this.
First, Congress has given it that power. Take, for instance, the Consumer Financial Protection Bureau. Congress holds no power of the purse over it; the president cannot fire its head, except under extreme circumstances; and the courts are instructed to give deference to its decisions. The Russian czars would have been jealous of the powers its director wields. Is it any wonder this administration likes the title “czar” so much? It was Congress that, by passing the Dodd-Frank Act of 2010, authorized this agency to do what it wants.
Sometimes Congress is not so specific and passes a law so broadly worded that it might as well have delegated the power in question. A good example is the Unlawful Internet Gambling Enforcement Act of 2006. It did not ban online games of skill like poker, but it did not clearly specify which specific activities it did outlaw, so activist prosecutors used it to close online poker sites and extract multimillion-dollar settlements from the companies that ran them.
Second, there’s a lack of self-restraint among many officials in the executive branch. A good example is former EPA regional director Al Amendariz, who was caught outlining his “philosophy of enforcement” to colleagues in 2010. “It was kind of like how the Romans used to, you know, conquer villages in the Mediterranean,” he said. “They’d go in to a little Turkish town somewhere, they’d find the first five guys they saw, and they’d crucify them. And then, you know, that town was really easy to manage for the next few years.”
This attitude is clearly at odds with basic constitutional principles of limited government. Government officials are supposed to be servants of the people, not their conquering masters.
Worse, there is often among regulators a presupposition that the people they are regulating should be treated as criminals. We saw it most recently in Operation Chokepoint, which threatens to shut down some payday lenders and other non-bank small financial institutions. In this case, the regulators’ operating assumption seems to follow the non sequitur that if fraud exists in an industry, the industry is fraudulent and the whole thing should be shut down.
Third, there’s one branch of government that could do with a little less self-restraint vis-à-vis the executive. The judiciary has been compliant in the growth of government power, and I often find myself telling people, “Put not thy faith in judges.” The judicial policy of deference to agencies, established in the Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), holds that courts should defer to an agency’s interpretation of a statute unless that agency has so twisted its interpretation as to distort the meaning. Combine this doctrine of judicial passivity with the vague wording of statutes mentioned above and you have a recipe for executive-branch bureaucrats to do as they like.
If the courts were to abandon this doctrine and examine the letter of a law rather than an agency’s “permissible” interpretations of it, we might see a lot more decisions unfavorable to the executive of the day. Indeed, it is hard to see how we would ever have had anything approaching an independent judiciary had such early common-law jurists as Sir Edward Coke not ended the practice of deference to royal authority in English courts.
The bills introduced this week that promote transparency in government offer a good beginning for some real reform toward curbing government overreach.
The Regulatory Accountability Act (H.R. 2122) would give the Office of Management and Budget oversight over independent agencies; currently OMB oversees only cabinet-level agencies.
The ALERT Act (H.R. 2804) would require agencies to publish online a monthly update on their proposed regulations.
The Taxpayer Transparency Act (H.R. 3308) would require agencies to publish an annual tally of their programs’ costs and other basic information.
If enacted, these bills would bring more executive power under the oversight of Congress and make it easier to see where officials are transgressing. It’s a beginning, though ending government abuse will require more than a week’s work. It might take a lifetime.
— Iain Murray is vice president for strategy at the Competitive Enterprise Institute in Washington, D.C.