During last week’s Conservative Political Action Conference, President Donald Trump’s chief strategist Steve Bannon espoused what he believes is the foundation of the Trump administration’s agenda: national security, economic nationalism, and the deconstruction of the administrative state. Elaborating on the third item, Bannon said, “The way the progressive left runs, is if they can’t get it passed, they’re just going to put in some sort of regulation in an agency.” This unnecessary expansion of the federal bureaucracy, he told the crowd, is what the Trump administration plans to deconstruct.
That work has already started. Just ten days after taking the oath of office, Trump signed Executive Order 13771, which requires that for every new regulation issued by the executive branch, the administration must seek to identify and repeal two existing regulations. On the campaign trail, Trump also threw his support behind the Regulations from the Executive in Need of Scrutiny (REINS) Act, which passed the House on January 5 and awaits Senate consent.
As David French noted last Friday,
[The REINS Act] is a simple but profoundly important bill. It prohibits any significant new agency regulation from taking effect unless it is ratified by each house of Congress. In other words, the Act will make Congress do its job. Congress will have to vote for the laws that have an impact on our lives for them to become law at all. The lawmaker will actually make law. The Founders would be pleased.
Signing into law the REINS Act would shift regulatory powers out of the bureaucracy and into the hands of elected officials, specifically when implementing regulations with major economic costs. A better way, however, would be to pass an amendment to the U.S. Constitution — the Regulation Freedom Amendment — that requires Congress to review all regulations.
The Madison Coalition, an organization that seeks to restore the proper balance between the states and federal government, is spearheading the movement to implement the Regulation Freedom Amendment.
“A Constitutional Amendment would bring a permanent end to ‘regulation without representation,’ no matter who controls Congress,” says the Madison Coalition’s director Roman Buhler. Ultimately, the amendment would require Congress to approve major federal regulations, and unlike the REINS Act, it would be difficult for pro-big government Congress’s to repeal in the future.
The proposed amendment has earned the endorsement of 21 state legislative chambers (seven states with bicameral legislatures), and if two-thirds of all state legislatures (34 states) pass resolutions in support the regulatory reform, Congress would be urged to — but not required to — propose and vote on the amendment. Last week, Arizona’s House became the latest legislative chamber to pass such a resolution.
Although earning support from two-thirds of the state legislatures seems to be a difficult task, it is certainly feasible. The Republican National Committee has already publicly endorsed the amendment, and if the 32 states with Republican control of both legislative chambers (plus Nebraska, a unicameral legislature with a Republican majority) pass resolutions in support of the Regulation Freedom Amendment, only one state would be missing.
According to Buhler, Republicans almost unanimously favor regulation reform like the Regulation Freedom Amendment, while “many Democrats who thought that a Democrat would be President for many years may now more fully appreciate the value of checks and balances on executive power.”
Public opinion favors regulatory reform, too, as polling has found that by a two-to-one margin, voters support a constitutional amendment that requires Congress to approve regulations, restoring the power that the Founders granted Congress in Article I of the U.S. Constitution.
Moreover, if two-thirds of state legislatures endorse the amendment, and Congress still declines to vote on the proposal, a convention of states (outlined in Article 5 of the U.S. Constitution) would likely be called.
Aware that a convention of states is a possibility, advocates of the Regulation Freedom Amendment have urged state legislators to pass “Faithful Delegate” laws. Then, if a convention is called, delegates would be required to vote only on the amendment in question, limiting the scope of the convention.
The Madison Coalition, the 900 state lawmakers who have passed resolutions in their legislatures, and other advocates of the Regulation Freedom Amendment will continue to explore every way possible to make elected officials — and not the bureaucracy — implement federal regulations.
“The 2016 elections have given limited government conservatives an extraordinary opportunity to constitutionally restore checks and balances on the abuse of federal power,” Buhler concludes. “History will judge us harshly if we don’t use it.”