Should Congress Take Charge? 1/9
One approach to regulatory reform
I have suggested designing a better regulatory state. This is not a typical idea coming from the right end of the political spectrum. I think that the most common view among conservatives and libertarians is that Congress should never have delegated so much power to agencies in the first place. Let me try to articulate the more typical right-of-center stance.
First, focus on the question of whether the Administrative state violates the Constitution. The Constitution embodies the principle of separation of powers: Congress writes laws, the Executive branch enforces laws, and the Judicial branch settles disputes.
With the rise of the Administrative state, agencies are given powers to make rules that are indistinguishable from laws. Moreover, they have enforcement power. Finally, many agencies also have quasi-judicial units empowered to settle disputes. In sum, the principle of separation of powers is totally violated.
The reforms that I suggest, of having the Administrative state overseen by a chief operating officer and checked by a chief auditor, would do nothing to take us back to the original Constitution. I am not a Constitutional scholar, but in my amateur opinion, neither the Administrative state as it now exists nor the reforms discussed in my essay are consistent with the original Constitution.
So I am quite sympathetic to the view that the Administrative state violates the spirit of the Constitution. But that does not mean that I think we should abolish the Administrative state. In my opinion, the right thing to do is to rewrite the Constitution to take account of the Administrative state, either as it is now or as reformed in some way.
The Supreme Court is looking into the OSHA mandate for businesses to require vaccines. But even if that particular regulation is ruled unconstitutional, there are still all of the other OSHA regulations, which in my unprofessional opinion are just as unconstitutional. The train that departs from separation of powers left the station many decades ago.
Under the reforms proposed in my essay, the check on the regulatory agencies would come from a powerful chief auditor position. In order for this to work, the chief auditor would have to enjoy much more clout than any of the many audit agencies that currently exist within the U.S. government. It is by no means assured that the chief auditor position would perform as I envision it.
Next, let us set aside Constitutional questions and ask: would we better off with Congress making all of the rules and regulations, rather than having that power delegated to agencies?
Of course, the agencies are not as competent as we would like. But I don’t think that one can argue that members of Congress are more knowledgeable than agency bureaucrats. My hope is that a chief operating officer devoting full time to managing the agencies would improve their competence.
In fact, I am pretty sure that members of Congress are even less qualified to design regulations protecting against securities fraud, unsafe transportation equipment, environmental hazards, and so on. I do not see that we gain competence by having them take responsibility back from the agencies.
In theory, one could hope that Congressmen, knowing their limitations, would hesitate to attempt aggressive regulation. They would humbly respect market outcomes. But. . .consider the Congressmen we actually have.
The most plausible-sounding argument for putting responsibility back on Congress is that members of Congress are accountable to the public, in contrast to the unelected technocrats ensconced in the bureaucracy. But this argument also seems less than compelling. Do we really think that a Congressman’s electoral chances will depend on how he votes on a rule about, say, how the Annual Percentage Rate on a loan is calculated and disclosed to consumers? And if the Congressman does face constituent pressure on such an issue, will it not come from special interests, rather than from the general public?
My bottom line: the status quo could be reformed to make it better; having Congress take charge would be even worse.
I recently read a book called "The Great COVID Panic" discussing among other things the failures of administrative agencies in the past two years. (Disclaimer of bias: one of the authors is a friend). The book has a very interesting proposal at the end: keep or even expand the powers of leaders of administrative agencies, but convene randomly chosen citizen juries to choose those leaders. So you would have one jury assembled every so often to choose the head of the EPA, another for OSHA, etc. The idea is to preserve expert independence and get superior leadership competence in the specialist domains to that of Congressmen, but check elite corruption by making sure a representative sample of ordinary people gets to decide which experts to empower.
I don't know if this would do better than what we have, but it strikes me as an example of mechanism reform worth trying. We need popular accountability and we need independent domain expertise, and ordinary democratic elections have proven to be a very poor means of balancing the two.
A very simple reform that would require a minimal tweak of the current APA system would be the simple requirement that Congress vote to approve any new rulemaking within 90 days of its submission - perhaps prior to publication in the Federal Register for public notice and comment - else it dies on the vine.
The current budget process is permanently and awfully messed up and so probably not a good example for anything. But still, in general, the President comes up with a proposal, but must submit it to Congress for approval so that some modified version can 'originate' in the HOR. By this mechanism, Congress maintains and exerts a lot of political control - theoretically on behalf of the members' constituents - over what gets done. And if the White House is trying to sneak some really objectionable stinker in there, it gets nipped in the bud.
The only reason the Executive bothers with any of this at all is because the Constitution explicitly says it has to, but it's a good check. In circumstances in which the executive can fund itself - for example, when an agency is authorized to collect fees and *keep the money as a slush fund to spend with wide discretion* instead of immediately handing it over to the Treasury, to say that the ways the money gets spent evades public awareness and democratic accountability is to put it extremely mildly.
But that's how new rules get made, and what causes a lot of deadweight loss from regulatory uncertainty and "policy whiplash", not to mention greatly increasing the stakes of already hyper-staked Presidential elections which generates increasingly widespread and neurotic tensions.
To be fair, this would mean that the process of making any new rules might grind to a halt. On the other hand, that wouldn't be the worst thing in the world.