In late August House Majority Leader Eric Cantor published an open memo announcing that House Republicans would seek to block ten regulations currently being considered by various federal administrative agencies. Most of these regulations involve the Environmental Protection Agency, including ozone protection, greenhouse gas regulation, coal ash and utility pollution standards. The National Labor Relations Board is also targeted for its proposed union election rules and its attempt to block Boeing from opening a new, non-union factory in right-to-work South Carolina.

Rep. Cantor has sound reasons to target these regulations. The economic impact of any one of these ten regulations on an economy already on the brink of a double-dip recession would be severe. Some, like new emission rules for utility plants are guaranteed to increase energy costs, which would have a cascade effect on all aspects of the economy. Others, like NLRB’s Boeing decision, are bald-faced pandering to the labor interests that shower so much support on Democrats in general and President Obama in particular. Put bluntly, the targeted regulations serve special interests like unions or environmentalists at the expense of the public interest.

While having the virtue of being good policy, and probably good politics, Rep. Cantor’s strategy has the vice of treating the symptoms while ignoring the underlying cause. The larger problem with these regulations is not that these agencies are abusing their rulemaking power; the problem is that these agencies possess rulemaking power in the first place. Administrative agencies are exercising authority which properly belongs to Congress.

The Constitution is unmistakably clear. Article I, Section 1 states that “All legislative Power herein granted shall be vested in a Congress of the United States….” If the power is legislative, and if the power is granted to the federal government by the Constitution, then the power must be exercised by Congress, and only by Congress. Congress is nowhere authorized to transfer the power to make laws to any entity. Only Congress is constitutionally empowered to make laws.

Moreover, Article I, Section 7 mandates that any action of the federal government, which has the force of law, must be enacted according to the specific process enumerated therein. Both houses must approve, and the bill must be sent to the president for his signature. His veto may be overridden, but only by a supermajority in each house. The very act of enacting rules on the part of the EPA or any other agency is thus a violation of this provision of the Constitution, because it deviates from this process.

(more…)

Inside the Beltway, Democrats are touting the achievements of the outgoing Congress.  Historian Alan Brinkley asserted that this is the most productive Congress since the Great Society.  These congratulatory assessments stand in stark contrast to the fact that Democrats, for all their labors, suffered a defeat of such historic proportions that it gave rise to a new word: “refudiation.”  What explains this paradox?

First, much of the legislation passed in the 111^th Congress is not really legislation at all.  For all of its verbosity, and for all the outrage surrounding provisions like the individual mandate, the health care legislation enacted in 2010 makes precious few decisions.  Instead, vast discretionary authority is vested in dozens of different agencies and officials, in particular the Secretary of Health and Human Services.

When confronted with tough decisions, Congress prefers to let someone else make laws.  Congressmen can then claim credit for providing Americans with health care, while evading blame for increased costs and premiums, poorer quality of care, rationing, massive uncertainty, and higher wait times.  The rules that led to those unfortunate consequences were made by regulators, who will give shape to legislation, and who would bear the brunt of public ire.

Second, Washington insiders tend to subscribe to the belief that what Americans expect of Congress is that it produce a certain quantity of legislation.  Outgoing House Rules Committee chairman Louise Slaughter (D-N.Y.) captured this belief when she lamented that “what we did was work, and our reward was, ‘Get out of here.’”  The volume of legislation produced by the Democratic 111^th Congress should have been reason enough for voters to sustain Democrats in office.

(more…)

When Senator Evan Bayh (D-IN) announced that he would not seek re-election this fall, he contended that “Congress is not operating as it should.” He lamented that partisanship and ideology have so pervaded Congress that “the people’s business is not being done.” Bayh cited the recent scuttling of a proposal to create a commission on federal spending, and the handling of a jobs bill. In short, Congress is no longer a properly functioning legislative institution.

Woodrow Wilson’s 1885 book Congressional Government is cited by virtually every scholar as seminal study of that institution. In it Wilson contends that the problem with Congress is that it is too preoccupied with legislating; the most important function of a democratic legislature is debate. Congress must debate, so that the people might receive “instruction and guidance in political affairs.” Legislators must constantly and publicly articulate their positions and attack those of their opponents. The New Republic co-founder Herbert Croly concurs, maintaining that Congress be transformed into “a parliament in the old sense of the word – a talking body, a battleground of opinion.”

The actual business of legislating would be handled by administrative agencies, which Congress would empower to devise and implement the means necessary to accomplish socially desirable ends. Croly observes that “social legislation is coming more and more to demand results rather than prescribe means.” With this understanding, Congress has been delegating legislative power for decades. Confronted with growing public concern over air pollution, Congress created the Environmental Protection Agency to implement regulations to clean the environment. The response of both parties and the White House to spiraling budget deficits has been to propose the creation of a commission to balance the federal budget. Over time, as political scientist Morris Fiorina has argued, congressmen have come to realize that delegating is electorally profitable. Congress earns credit for supporting environmental protection, but public blame for the burdensome rules necessary to achieve clean air is shifted to the EPA.

Freed from the arduous business of legislating, congressmen are able to focus upon debate. Debate, however, devolves into little more than posturing and maneuvering. Members have an incentive to take and hold extreme positions favored by core constituencies, demonize the opposition in order to score political points, and employ overheated rhetoric in support of both. These tactics mobilize supporters and win elections, but are not conducive to effective legislating. Deliberation is not a skill valued by the progressive understanding of a legislature. Such a legislature does not attract members of a deliberative temperament; once there, they have little opportunity for real legislating. The self-interest of legislators is effectively divorced from the exercise of legislative power.

(more…)