I am just getting around to reading a book I have meant to read for over a year, Is Administrative Law Unlawful? By Philip Hamburger (University of Chicago, 2014). Besides, this is also a good time to raise the whole issue of administrative rulemaking, regulations and judicial hearings, something that in the last 70 years has become more than just common, but pervasive. Here in DC of course we are pretty close to it physically, but it affects all citizens to one degree or another in the United States, at the local levels (for example, zoning), the states (education, licensing) and the Federal government (literally thousands of pages of regulations on almost every conceivable issue–the environment, safety, education, financial transactions, election issues, communications and the internet, school affairs, such as use of facilities and discrimination, and on and on).
Usually the multitude of regulations begins with some perceived problem (“crisis”) that quickly gets politicized instead of thought through carefully and rationally. Then, using Congress as our example, the Senate and the House politicians exclaim, “something has to be done,: when of course in many cases doing nothing may be best. The someone adds, “Pass a law.” Then some vague and impossibly arcane law is passed and Congress delegates (there is that ugly word) power to the agency given charge over the implementation of this new law, to decide how to implement it. That means defining undefined terms, interpreting the law as the agency sees fit, setting parameters, etc. Of course all of that is done with no accountability to Congress or to the people, except for the rather superficial rulemaking procedures required by the Administrative Procedures Act or in some cases, Congress–there is no ability to veto the rules.
What has happened in all this is that right under Congress’s nose and even with its approval, it has given away its own constitutionally designated power to an unaccountable, unelected agency, whose collective intentions may be far from the intent of the law itself and may even be radical. Unfortunately the courts have done little to stem the tide, often simply rubber-stamping the agency by giving it deference (a rather ridiculous and made up legal fiction under the Cevron case doctrine). What John Q. Public then gets is a detailed, even totalitarian intervention in the smallest and most insignificant details of life, along with, yes criminal penalties for unintentional lapses and failures to be an all-knowing seer with respect to hundreds of thousands of regulations. Moreover, these rules often keep potential entrepreneurs from entering markets to compete, offer consumers better and lower-priced services, and attain earned success. The latter result to usually due to the “capture” of the regulatory agencies by those whom they are supposed to regulate.
And then there is the nearly impossible task of legally challenging the rules, simply out of the sheer complexity of the cases themselves as well as the deference given by courts.
Congress has given away its power under Article Two of the Constitution. But let me ask a more fundamental question: Could most of these rules, regulations and judicial decisions actually be unlawful? Now I don’t believe for a moment that we can get a court any time soon to simply declare a halt to delegation. But the question is still worth asking if only to wake some people up from their stupor. It is time for Congress to take back its authority in no uncertain terms.
But how would it do that? First, stop passing huge, lumbering, indecipherable, and vague laws which Congress has no desire to oversee. Make fewer and much simpler laws, and ones that are as Locke urged, knowable, clear, and reasonable. Second, Congress ought to simply stop delegating most of its power, and when it does it should be clear that the delegation is only for the purpose of an implementation of clearly defined terms and phrases. But someone will (correctly) ask, how could Congress keep bureaucrats from necessarily interpreting a statute when implementing it? Answer: They cannot. But they can devise statutes so clear and simple that the interpretations will be easy and the misinterpretations clear and judiciable in a court. In fact, Congress could state in a statute itself that no interpretations can be made of the terms of a statute without first going back to Congress for approval. Would that inundate Congress with the fine details of governance? Yes. The solution is, as I said earlier, fewer and much simpler laws. Moreover, the few important terms in laws must be defined very carefully and clearly.
As I said, I don’t believe we can rely on the courts to rein in the agencies. The legislative bodies themselves must stop giving away their rightful power. Until they do, the executive branch will be more than happy to take it from them for its own motives. As for state governments, our constitutional system has left to the states a very broad range of powers, but even there state agencies also can usurp the legislative power through their rule-making. State legislatures have an obligation to protect their citizens from such abuse. If we don’t see progress in this issue, we will see a greater and greater loss of freedom, economically and politically. Even the church may suffer in the long run. Christians have already, for example, in areas that have passed anti-discrimination laws that have been unilaterally reinterpreted by agencies. The EEOC has done the same thing in its “Guidance Letters.” No one is safe from the threat of the wrath of unelected bureaucrats who are zealous for bad causes. Contact your legislators at all levels and request that they stop allowing it. Of course, if they don’t listen, you can vote them out–hopefully.