The old saying “don’t make a federal case out of it” once implied that federal involvement in American life was reserved for those matters of significant national import. Today, that saying has given way to a federal government that has produced roughly 90,000 regulations covering virtually every facet of life and costing Americans an estimated $1.8 trillion annually. To help enforce these rules, federal agencies are armed with more than 35,000 lawyers and 130,000 law enforcement agents, including from such legendary crime fighting agencies as the National Oceanic and Atmospheric Administration.
It’s time for Congress to rein in this ever burgeoning administrative state.
The rise of the administrative state has been a bipartisan affair, going back decades, in which Congress gleefully has ceded more and more authority to regulatory agencies. In 2013 alone, those agencies issued 3,659 new rules, according to the Competitive Enterprise Institute. In contrast, Congress passed 72 bills that year. This is not a call for more laws out of Congress, but this difference shows the corrosive impact the administrative state has on the separation of powers and the very foundation of representative democracy by eroding accountability in Congress and empowering bureaucracies.
The last six years have seen an alarming acceleration in the administrative state’s growth with the federal takeover of health care and the subsequent implementing regulations, including the regulation that caused millions of insurance policies to be canceled. Meanwhile, the energy sector and the Internet remain in the regulators’ crosshairs in the name of protecting the environment and consumers.
Indeed, every action giving rise to the administrative state has been couched in terms of protection. The result, however, is almost always the same: A legitimate set of regulations gives way to an ever expanding universe of rules, which often have only tenuous ties to an agency’s enabling statute, leaving the American people with less freedom, opportunity and prosperity. It’s no coincidence that while the administrative state has expanded over the last six years, median household income actually has dropped and the U.S. economy simultaneously grew at one of the slowest rates ever in a post-recession environment.
In 2013, the House of Representatives passed the Regulations from the Executive in Need of Scrutiny Act, or REINS, in an attempt to take back a portion of its legislative power from the administrative state. Specifically, the REINS Act requires, among other things, congressional approval for any new regulation with an economic impact exceeding $100 million. This strikes the appropriate balance by allowing the regulatory agencies to use their expertise to craft major new rules while maintaining ultimate authority and accountability in Congress.
In the Senate, the Regulatory Improvement Act, or RIA, of 2013 was introduced by Maine’s own Sen. Angus King. The RIA would create a commission whose job would be to go through the 180,000 pages in the Code of Federal Regulations to find the existing dead weight rules. A list of those rules would then be provided to Congress for an up or down vote, similar to the successful Base Closure Commission model used in the 1990s to shutter military bases after the Cold War ended.
Like so many bills passed by the House during the last four years, the REINS Act died in the Senate. The RIA hasn’t even made it out of committee. But come 2015, there is a chance to test King’s ability to lead and work across the aisle and pass these bills. In doing so, the new Congress should strengthen the REINS Act by requiring congressional approval for any new regulations that impose criminal penalties. The people’s representatives in Congress should be directly responsible for the imposition of any federal criminal sanction on Americans. To that end, as part of the RIA, Congress should also vote up or down on all existing federal criminal regulations.
Proponents of America’s regulatory paradise and their media bodyguards will howl that any restrictions on the administrative state will result in dirty water and air, unsafe infrastructure and the general demise of our republic. But more Americans are realizing the benefits from the continuing onslaught of regulations are de minimis at best, especially when compared with the cost — in liberty and prosperity — that is being paid.
Joshua D. Filler served from 2002 to 2003 at the White House as Director of Local Affairs for Homeland Security and from 2003 to 2005 at the Department of Homeland Security as director of the Office of State and Local Government Coordination. He is an attorney and homeland security consultant living in Falmouth.