The main threat facing our personal liberty in the United States is not a military coup or Congress passing a Super Duper Patriot Act, it is the day-to-day arrogation of power from the Congress to Executive Branch agencies by their so-called “rule making” authority. This ability, naturally discovered while the Supreme Court was cowed by FDR, allows unelected bureaucrats in agencies overseen by the Executive Branch to make “rules” to flesh out what they think are incomplete laws. This is how a law, the Clear Water Act, transforms from a very simple purpose into a hulking, rampaging brute that has decided that backyard mud puddles can be classified as “waters of the United States” and you could very well be fined or go to jail for tampering with it.
I’ve written on this a bit over the years including these recent posts herehttps://redstate.com/streiff/2016/12/17/roadmaps-undoing-obamas-regulations-mask-real-problem/ | here | here.
As much as Trump talks about undoing Obama’s regulatory orgy that has been going on since November, the fact is that he can’t. The Catch-22 of the rule making process is that to remove a rule you have to through the same process it takes to make a rule. Over time, progressive judges have created a body of law that gives every whiny special interest group in the nation the right to sue to block removing regulations. In some cases, groups have even sued to make the EPA interpret in a way they like.
There is an encouraging sign that the GOP in Congress may have decided that things have gone too far. Last week, the House passed two bills to roll back the regulatory state:
On Tuesday, the House passed legislation to allow Congress to repeal — in a single vote — any rule finalized in the last 60 legislative days. The Midnight Rules Relief Act amends the Congressional Review Act to let lawmakers bundle together multiple rules and overturn them en masse with a joint resolution of disapproval.
A day later, the House approved legislation to curb costly rules. The Regulations from the Executive in Need of Scrutiny (REINS) Act requires the House and the Senate to pass a resolution of approval, which the president must sign within 70 legislative days, before any major regulations can take effect. It covers regulations with an estimated annual economic impact of $100 million or more.
Both of these are great. The first allows Congress to disapprove a large number of rules at the same time without having to vote on each particular rule. (The Congressional Review Act,itself, is an abomination worthy of Bob Corker’s Iran nuclear bill. Instead of requiring Congressional assent before rule making can proceed, it requires Congress to disapprove a rule subject to the veto of the president whose administration made the rule.)
The second is important because these “major regulations” are promulgated at least weekly
Unfortunately, it is also subject to abuse. Look for with an impact of $99 million to flourish or for a single regulation to be broken up into smaller pieces to escape scrutiny. If drug dealers can do it there is no reason the federal bureaucracy can’t.
This week is going to be a cornucopia of bills designed to control regulations:
The package includes Goodlatte’s Regulatory Accountability Act, which requires agencies to choose the lower cost rulemaking alternative when issuing new rules.
Also in the package is Rep. John Ratcliffe’s (R-Texas) Separation of Powers Restoration Act. Ratcliffe’s bill repeals the Chevron and Auer doctrines, which direct courts to defer to an agency’s interpretation of a statute when there are challenges over ambiguous rules.
The other bills in the package require agencies to calculate the direct, indirect and cumulative impacts of new rules on small businesses, as well as publish timely information and summaries in plain English online for proposed rules.
Another bill, introduced by Rep. Tom Marino (R-Pa.), would automatically block high impact rules — those with costs over $1 billion dollars annually — from taking effect for 60 days. It’s intended to give businesses and other entities the opportunity to challenge them in court.
All of these are very useful and log overdue. One hopes that the Senate also follows through and passes the bill.
So long as we citizens are unable to meaningfully contest regulations our freedom is in peril