Unless they are part of the problem, Americans do not generally wake up thinking about the federal regulatory superstructure. They usually wake up thinking about their job, their business, and their family.
Unfortunately, the federal government has worked diligently for more than a century to insert itself into every nook and cranny of American life. Just about everything is regulated — everything built, bought, sold, processed, and everyone hired, fired, or working a little overtime.
The Founders’ bargain was simple. An ordered liberty — one with the smallest number of rules and having those rules apply to everyone — enables opportunity. The opportunity to prosper under that bargain is the American promise. The federal government is supposed to protect that bargain. Instead, it has grown into a sprawl that regulates every corner of American life, imposes compliance costs that crush small businesses, and employs a permanent class of unelected officials who answer to no voters and are, as a practical matter, impossible to fire.
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The good news is that the Supreme Court has handed Congress a generational opportunity to act. The only question is whether Congress will act.
The Supreme Court has delivered four consecutive blows to the administrative state. Judicial deference to agencies is gone. Barriers to challenging bad regulations are gone. Bureaucratic tribunals replacing jury trials are now gone. Finally, and perhaps most importantly, the leaders of “independent” agencies can now be fired by the president for any reason or for no reason.
The Court has restored accountability. It has not restored the republic. That work belongs to Congress, and Congress needs to get going.
The federal government does not need to be this large. It does not need duplicative regulators with overlapping authorities spread across dozens of independent fiefdoms, each with its own staff, budget, enforcement apparatus, and, sometimes, even its own police forces.
What the federal government needs is enough expertise to faithfully execute the laws under which the economy functions and enough restraint to leave Americans the freedom to live their lives. That should be our standard.
Congress must go back to the organizing statute of every agency and ask questions it has avoided for a hundred years: should this agency exist, and if so, in what form? Is this agency’s responsibilities within a power the Constitution granted by the federal government? Is the agency’s authority specific enough that it cannot expand beyond what Congress intended? Can its function be performed better by some other agency — preferably by a Cabinet agency rather than by an independent regulatory agency?
In the wake of the Supreme Court decision in Trump v. Slaughter, it seems likely that the independent regulatory agencies will be folded into the nearest Cabinet agency. The SEC folded into the Department of the Treasury, EPA to the Department of Energy. The Federal Trade Commission to the Department of Commerce. That consolidation is constitutionally preferable to our current arrangements, in large measure because cabinet departments answer to the president, whom the people can remove.
It is important to recognize, however, that consolidation without congressional authorization is not reform. It is the administrative state with a new landlord. The bureaucracy remains. Only the chain of command changes.
A unitary executive operating with a Congress that refuses to legislate is not the republic imagined by the Founders. The Founders did not design a strong presidency to substitute for a weak legislature. They designed ambition to counteract ambition — three branches, each doing its job, each checking the others. A Congress that abdicates to the executive has not reformed the administrative state. It has handed it to a different master.
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The federal government must be smaller. It must be less intrusive. It must provide what is necessary for the economy to function and the people to be secure, and nothing more. Every agency that duplicates another’s function should be eliminated. Every regulation that cannot be justified by a specific congressional authorization should be rescinded. Every bureaucratic empire built on vague statutory language and decades of unchecked expansion should be dismantled by Congress, under law, with clear lines of accountability.
The Founders envisioned a government expert enough to serve the economy and accountable enough to serve the people. Congress must restore it, before executive branch cupidity makes that impossible.
Christopher A. Iacovella is the President & CEO of the American Securities Association. Michael McKenna served in the first term of the Trump administration.
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[ H/T Washington Examiner ]
