Who Will Regulate Our Regulators?

By | 2018-04-16T06:17:43+00:00 April 15th, 2018|
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The New York Times in an article reporting on President Trump’s efforts to dismantle the regulatory state, hit upon a divergence of thought on the Right.

The Times quoted Gordon Lloyd, a professor emeritus at Pepperdine University and a preeminent scholar of the American Founding and the nature of limited government. Rather than defend Trump’s efforts to chip away at the administrative state, Lloyd instead compared Trump’s actions to “Lenin dismantling the institutions.”

The comment likely raised a few eyebrows because, by and large, most on the Right would consider the deconstruction of bureaucracy a positive development; a long sought after goal, even. To reside on the American Right, generally, means you see regulation and regulators have run amuck—and certainly have extended beyond the safe confines of the Constitution.

But Lloyd’s comment points to an area where the minds of some limited government proponents diverge. While we may all agree on the principle that regulations are most effective when they are few, targeted and efficient, the disagreement comes over how we arrive at the sweet spot.

Trump has garnered plaudits with some on the Right for his aggressive tactics toward reining in the regulatory state: an executive order mandating that for every single regulation that is issued, two are repealed; appointment of judges who hold a skeptical view of the agency-friendly judicial doctrine known as “Chevron deference,”and directing his Cabinet heads to simply repeal regulations they deem to be economically harmful or outside the agency’s mission. (EPA Administrator Scott Pruitt, for all the unfavorable press coverage he’s received, has been a champion in this regard.)

It is not an understatement to see Trump’s actions as leveling the most significant blows to the bureaucracy that the country has seen in decades.

Yet, as positive as these outcomes are for many, some limited government proponents like Lloyd fundamentally disagree with Trump’s approach.

As Lloyd pointed out to me when I asked him to contextualize his comments, Trump’s actions strike at the very heart of executive power—the nature of which, according to Lloyd, the Founders intended to be limited. After all, regulating is a form of legislating. It is Congress that passes the statutes that initiate regulatory action, and thus, it is Congress that must issue the correction—not the president.

On this, Lloyd has a point. Regulations do initiate in the laws that are passed by Congress. To that end, they are a function of the policy making apparatus. But, while correct in the academic sense, Lloyd’s argument fails to account for the reality of the modern regulatory state: it has exploded in size, power and authority precisely because of the authorities that Congress is all too willing to give away, but far less willing to take back.

The result has been agencies churning out thickets of complex and overly burdensome regulations that are wildly out of touch with what Congress intended. And yet, Congress remains unwilling to do anything about it.

Justice Samuel Alito highlighted this development in his concurring opinion in Sackett v. EPA. The case centered around the Sackett’s alleged violation of the Clean Water Act, which regulators at the EPA and the Army Corps of Engineers had interpreted to mean that the federal government had authority to regulate homebuilding activities on dry land miles away from any navigable rivers.

The Sacketts were slapped with fines of $75,000 a day, and given no legal recourse to challenge the agency in court. The Supreme Court found that the Sacketts should, at the very least, be afforded a legal remedy to counter the actions of the agencies. But in his concurrence, Alito clarified that while the Court’s action was “better than nothing,” to truly fix the problem of bureaucratic overreach, Congress must “do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act.”

In a sense, he is making Lloyd’s point: Congress created this mess, and it’s on Congress to fix it.

Again, for purposes of instruction, the normative solution is correct. The nature of our government and the intention of the Founders was for Congress to be the policy making body, overseeing the process from legislation to implementation.

But what happens when Congress abdicates this responsibility (along with so many others)?

Enter Trump, who has decided, in the absence of congressional application of authority, the most efficient and effective form of trimming the overgrowth of regulatory hedge is by enforcing his executive power and daring opponents to challenge him.

While Lloyd and others argue this is an approach that is out of step with the balance of powers, I would argue that, right now, it is the best hope the country has from being choked out, dominated and ruled by the technocrats. I view it this way for two reasons.

First, there is the obvious issue that Congress has abandoned its duty when it comes to managing regulations. Yes, the executive weighing in with more authority than perhaps he should undermines the balance of powers, but so, too, does the unmanaged growth of unelected regulators. To the latter point, the country is rapidly approaching a crisis of unelected bureaucrats determining the details of how we all should live. This needs to be addressed, and soon, by the nearest and most willing authority available. When your house is on fire, you don’t stop and wait for the correct fire truck from the correct county to show up and put it out; you and anyone else you can find run at it with whatever you can find.

Second, however, agency-issued regulations and actions taken by prior executives are flung so far afield of Congress’ intent and jurisdiction that there is a case for executive action being the appropriate remedy.

To the former point, the Sackett case and others like them are clear examples. The Clean Water Act affords the federal government a modicum of authority over “navigable waters.” The authors of the law did not define navigable, perhaps because they thought it was obvious. But they clearly did not count on the imagination of a bureaucrat, as the EPA has invented a definition that includes dry land miles away from water and ditches that occasionally fill up with rain.

To any rational person, this is not what the original legislation was intended to do. Only a bureaucrat could come up with a definition of “waters” that includes dry land, and create endless justifications for doing so—none of which are reflected in the legislation that Congress passed. As these are executive branch agencies operating far afield of their original statutory mission, the president can plausibly argue that he shares an oversight role with Congress, and thus has a certain amount of authority to amend and repeal these regulations, or, at the very least, roll them back to better reflect what Congress intended.

Moreover, the president has taken a vow to uphold and honor the Constitution of the United States. And the Constitution, not the arbitrary will of legislators (and certainly not that of unelected bureaucrats) is the ultimate voice of the people’s sovereignty.

Trump’s actions to pull the United States out of the Paris Climate Accord fall into a similar category. President Obama unilaterally subjected the country to the accord in 2016, despite many experts  believing that the Accord met the terms of a treaty and thus required the consent of the Senate. Looking at it that way, the United States’ agreement to the accord was an illegal act, and one where it was appropriate for Trump to roll it back unilaterally.

In a perfect scenario, Congress would fulfill their legislative role to the fullest extent—jealously guarding its policy prerogative and checking agencies that overstep their mandate. If Congress wants to overrule any executive action of the president, they are certainly able to attempt this . . . with legislation. This is how the separation of powers is supposed to work.

But reality is messier, and the resulting crisis far more pressing than the intellectual desire to wait around for Congress to show up and do its job. To that end, Trump’s efforts to yield a unilateral axe against the regulatory state may represent an imperfect means to a generally agreed upon—and long sought after—end: a hemmed in regulatory state and more economic and individual liberty as a result.

Photo credit:  Carolyn Van Houten/The Washington Post via Getty Images

By | 2018-04-16T06:17:43+00:00 April 15th, 2018|

About the Author:

Rachel Bovard
Rachel Bovard is senior director of policy at the Conservative Partnership Institute. Beginning in 2006, she served in both the House and Senate in various roles including as legislative director for Senator Rand Paul (R-Ky.) and policy director for the Senate Steering Committee under the successive chairmanships of Senator Pat Toomey (R-Penn.) and Senator Mike Lee (R-Utah), where she advised Committee members on strategy related to floor procedure and policy matters. In the House, she worked as senior legislative assistant to Congressman Donald Manzullo (R-Il.), and Congressman Ted Poe (R-Texas). She is the former director of policy services for the Heritage Foundation. Follow her on Twitter at @RachelBovard.