Regulatory Law-Making
by Robert W. Lee

In The Federalist, No. 47, James Madison observed, "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." To guard against such an accumulation of power, the Constitution not only divides the limited powers of the federal government among the three branches, but contains a brilliant system of checks and balances intended to head off the unconstitutional encroachments by any one branch on the constitutional duties of another.

One example of this separation of powers is found in the very first sentence in Article I, Section 1, of the Constitution: "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Neither the President nor the regulatory agencies (all of which inhabit the Executive branch) are granted law-making authority. And there is no provision authorizing Congress, to whom the power to make laws has been delegated by "We the People," to breach the separation of powers by delegating unconstitutional authority to the President or other federal executives. Yet this is exactly what Congress has done, not just by tolerating outright usurpations, but by authorizing myriad Executive branch regulatory agencies that then issue countless regulations possessing the force of law once published in the Federal Register. Today the American people are subjected to more laws imposed by the regulatory agencies (administrative law) and by Executive Orders than by Congress itself.

The now-defunct Interstate Commerce Commission, established in 1887, was the first federal regulatory body allowed to propose rules having the force of law. Its alphabet-soup heirs (EPA, OSHA, CPSC, FDA, FTC, NLRB, etc.) have followed that illicit course to the point that the Federal Register now contains some 60,000 pages of directives annually -- largely "administrative law" that Congress has not approved -- which must be meticulously scrutinized by businesses, property owners, and others who risk fines or worse for running afoul of some obscure regulatory requirement.

Executive Action

In our country's early years, Executive Orders were employed by Presidents or Cabinet officers as in- house directives intended to affect only government administrators and agencies -- not the general public. During this century, however, they have metastasized to the point that they often have an enormous impact on both foreign and domestic policy, and the lives of all citizens.

Executive Orders have been employed to instigate or fuel many of the tumultuous political issues of our time. For instance:

• In February 1960, the House of Representatives overwhelmingly approved a Concurrent Resolution aimed at precluding the Panamanian flag from being raised in the U.S.-owned Panama Canal Zone. But on September 17th of that year, President Eisenhower issued an Executive Order directing that Panama's flag be flown alongside the Stars and Stripes in one area of the Zone. It was an important step on the road to the 1978 treaties transferring the vital American-built waterway to Panama at the end of this century.

• In 1965, President Lyndon Johnson instigated the drive for race-based "affirmative action" programs with an Executive Order mandating non-discrimination in hiring practices for firms working on government contracts.

• As one of his first acts as President in 1989, George Bush issued an Executive Order banning the importation of dozens of military-style semi-automatic rifles, a move which helped pave the way for eventual passage of the Clinton Administration's controversial 1994 "assault"-weapons ban.

• On January 22, 1993, two days after being sworn in as President, Bill Clinton signed a series of Executive Orders striking down federal prohibitions on sundry abortion-promoting practices, including a ban on abortions in U.S. military hospitals.

In the area of environmental regulation, the Environmental Protection Agency is the biggest bully on the block, with more than 13,000 full-time equivalent employees and a budget of nearly $6 billion. On May 29, 1969, President Richard Nixon issued an Executive Order creating the Environmental Quality Council, a maneuver which served as a precursor to creation of the EPA in 1970.

The contempt in which the EPA holds the constitutional law-making process is evident in the recent disclosure of an October 31, 1994 in-house memo prepared by the agency's Office of Policy, Planning, and Evaluation. The memo included a scenario for imposing, without congressional approval, a 50-cent- per-gallon hike in the federal gasoline tax to discourage automobile use and thereby reduce so-called "greenhouse" gases in compliance with the UN global warming treaty signed by President Bush in 1992. The U.S. Senate has not even ratified the treaty. The memo claimed that "the administration has the authority to begin rulemaking on its own, without legislation." Such authority, claimed the memo, derived from an obscure provision of the 1962 Trade Expansion Act in which Congress delegated to the President authority to impose a 50-cent-per-gallon gasoline tax increase if (in the memo's words) the Commerce Secretary "finds that oil imports threaten or impair national security."

The tax has yet to be imposed, for as the memo noted, "the option would require the use of substantial political capital since the levying of a gasoline fee would probably be politically unpopular." Now that President Clinton has been re-elected to the last term that the Constitution allows, he need not worry so much about the loss of "political capital."

Reining-in the Thieves

In December 1995, Representative J. D. Hayworth (R-AZ) introduced a commendable bill which, hopefully, he will reintroduce in the new Congress. The purpose of the proposed Congressional Responsibility Act, as stated in the legislation itself, is "to promote compliance with Article I of the United States Constitution, which grants legislative powers solely to Congress. Article I ensures that Federal regulations will not take effect unless passed by a majority of the members of the Senate and House of Representatives and signed by the President, or that the members of the Senate and House of Representatives override the President's veto. This Act ends the practice whereby Congress delegates its responsibility for making regulations to unelected, unaccountable officials of the executive branch and requires that regulations proposed by agencies of the executive branch be affirmatively enacted by Congress before they become effective. The Act will result in a more democratic and accountable Congress and protect the public from regulations for which elected, accountable officials are unwilling to take responsibility."

Under terms of the Hayworth bill, proposed regulations could not take effect unless passed into law by Congress. Whenever an agency promulgates a regulation, it would be required to "submit to each House of Congress a report containing the text of the proposed regulation and an explanation of the proposed regulation." A bill to approve the regulation and give it "the force and effect of law" would then be introduced, debated, and either passed or scuttled. The Hayworth bill would be an important step toward restraining the current congressional tendency to delegate law-making authority to the Executive branch. It does, however, suffer from a flaw that will hopefully be corrected. Section six of the bill as presently written provides that it will "apply to agency regulations promulgated after the date of the enactment of this Act," thereby giving a grant of immunity to existing administrative law. A substitute provision is sorely needed that would instead enable Congress to reconsider earlier regulatory edicts.

Also during the 104th Congress, Representative Nick Smith (R-MI) introduced a bill to deal with the delegation problem. Though inferior to the Hayworth bill overall, in that it would apply only to "significant" (rather than all) new regulations, section six of the Smith bill did propose a procedure whereby a regulation spawned prior to the bill's enactment could be reconsidered if 30 senators, or 120 representatives, signed a petition calling for such a reconsideration. The substitution of section six of the Smith bill (or something similar to it) for section six of the Hayworth bill would significantly strengthen the latter.

It should be noted that terminating its existing delegation policy would not by itself preclude Congress from adopting further destructive regulatory legislation. As the Cato Institute's Jerry Taylor has observed, theoretically "the entire code of federal regulations as it exists today could have been enacted under the rules changes proposed by Rep. Hayworth." But from a practical standpoint it would not have happened, since senators and representatives would then have been directly and fully accountable to their constituents for the impact of the regulations. As Taylor notes, it is likely "that a return to nondelegation will mean a return to prescriptive laws, a new respect for federalism, and a renewed appreciation of the Framers' view that the chief danger to republican government lies in legislative overzealousness, not legislative inaction. If Congress is to reclaim the law, it will be necessary for Congress to do less, do it properly, and be held accountable for the results."

The House, by itself, could bring the regulatory war on America to a conclusion were it motivated to do so. Article I, Section 7 of the Constitution states unambiguously, "All bills for raising revenues shall originate in the House of Representatives...." Were the House to refuse to "originate" bills to fund the EPA and the other rampaging regulatory Godzillas that are trampling the Constitution, such entities and their costly, freedom-eroding, government-expanding edicts would be vanquished virtually overnight.

Source:  January 6, 1997 issue of The New American