From House Speaker John Boehner

Dear Mr. President:

Last year, on August 16, 2010, I wrote to you about my concern that the Administration’s published regulatory agenda included a total of 191 planned new regulations, each of which had an estimated annual cost of $100 million or more, with some involving billions of dollars annually. In my letter, I noted that at public forums, private sector job creators were citing this regulatory agenda as one of the primary impediments to job creation, especially for small businesses. I asked that your Administration identify for Congress all of your planned new rules that would have an estimated economic impact of more than $1 billion. Unfortunately, that requested information was not provided to Congress nor to the American people. (more…)

The current regulatory regime we live under is nothing short of an abdication of authority by the Congress and an affront to the Constitution. Sometimes regulatory agencies so overstep the bounds of commonsense that they get smacked down by the court, as in Citizens United, sometimes they are barely restrained as in Rapanos. More often than not the regulatory agencies act as the pot of gradually heating water while we play the part of the frog.

Even in the hands of a friendly administration the regulatory agencies continue to arrogate power to themselves. In the hands of an administration, such as that we have now, that is overtly hostile to free enterprise and personal liberty the pace of power grab accelerates.

I’m not a libertarian but I do have a deep and abiding skepticism in government. I believe government has a critical function in ordering a civilized society. The key concept, at least from my point of view, is that government, like fire, is a useful servant so long as it is kept under tight control. Once it frees itself from constraints it is dangerous in the extreme. I believe we have passed that threshold.

However, I don’t believe ending the regulatory state is any more possible than I believe closing down various cabinet level departments is possible. I don’t even believe it is desirable. What I do believe is that the imposition of regulations should be more onerous on the agency than the public and that regulations should augment the legislative process not supplant it.

As part of the Contract With America, the Congress passed the Congressional Review Act. This law requires an agency to give Congress advance notice of rulemaking and it sets up procedures for Congress to set aside any regulation. This is only half right. While the CRA sets a procedure to overturn regulations, that power had, in fact, always existed. The CRA is little more than an exercise in kabuki which nearly inevitably results in a regulation being passed because the disapproval has to pass the House, Senate, and be signed by the president.

The difficulty presented in restricting the regulatory impulses of federal agencies is illustrated in today’s Washington Post:

The next month or so will focus on EPA regulations. House Republicans would pull back an effort to regulate coal ash in mining-heavy states that they say would hinder concrete production and cost more than 100,000 jobs. Through the fall and winter, Cantor said, the caucus will vote on at least 10 regulations that committee chairmen have identified as “costly bureaucratic handcuffs that Washington has imposed upon business.”

The result of these votes is likely to mirror failed efforts this year to repeal landmark legislation that was approved during Obama’s first two years in office — his health-care law and the Dodd-Frank consumer protection bill — but it will provide a framework for Republicans to highlight a jobs agenda. Also, leaders have pushed several of their freshmen lawmakers to advance the anti-regulation bills, providing the newcomers with a chance to tout proposals that could resonate with voters in their districts.

If a theoretical Republican Congress working in concert with a theoretical Republican President wants to “make Washington inconsequential in your life” what is needed is a re-ordering of the process. Rulemaking should be seen as a creature of the enabling legislation not as a lawmaking process itself. Rules made by bureaucrats should not endanger our livelihoods, our property, and our liberty without the affirmative consent of the Congress.

The process of is not irretrievably broken and can be remedied if our political class truly wants to rein in agency regulatory power and not simply use the regulations as foils for gamesmanship and posturing.

Each year over 10,000 new lieutenants are commissioned into the armed forces, they received those appointments with the advice and consent of the Senate. The same is true for the results of promotion boards. Each officer is voted on by the Senate. Usually this moves smoothly. Sometimes a name comes up that the Senate will not go for. Two such instances come to mind. In the aftermath of the Tailhook investigation and the USS Cole attack the Senate essentially held promotion lists hostage to ensure that certain officers would not be promoted even though they had been selected.

So why should the commissioning of a lieutenant or the promotion of a mid-grade officer merit positive action on the part of Congress but an EPA regulatory regime that seems focused on making the use of coal illegal allowed with no action?

The same system should be in place for agency regulations. Once a regulation is finalized it should go back to Congress for a vote. There is no reason that non-controversial regulations shouldn’t be bundled together and passed by unanimous consent. However, egregious powergrabs like those underway in the NLRB, the FCC, and the EPA would get the debate and scrutiny they need.

Speaker Boehner’s letter is a small step in the right direction. But being given advance notice of job killing regulations without any reasonable hope of stopping them is cold comfort. Congress needs to step up and reclaim the responsibility it has willingly abdicated to regulatory agencies.

When Gideon Tucker penned the phrase “No man’s life, liberty or property are safe while the Legislature is in session”he had no concept of the regulatory state that has come to control our lives. At least when contending with the legislature you could look forward to vacations and recesses.