Imperial Presidency rules through regulations

“It’s a new year and you know what that means — new regulations. The Obama administration has wasted no time in writing them.”

I couldn’t have said it better myself.  Now, to be fair, every Presidential administration issues rules and regulations, that’s how laws are implemented.  However, some Presidents issue more regulations than others and seem to use regulations to legislate directly, skipping the legislative process, by stretching the rules and regulations issued beyond either the letter or intent of the law upon which they are supposed to be founded.  In this President Obama has few Presidential peers. 

As proof, an annual analysis by my friends at the Competitive Enterprise Institute, finds that the Obama administration issued an average of 56 new regulations for every law passed, a record high ratio. 

Keeping up his record pace, without any new laws having passed, on just three days in January 2014, the Obama administration posted 141 new regulations. 

This move to rule through regulations is in keeping with Obama’s stated commitment to “not wait for Congress to act,” if Congress refuses to enact the President’s policies, Constitution be damned.

Of course successive sessions of Congress are largely to blame for the rise of the Presidential ability to rule by fiat.  Since the beginning of the Progressive era in the late 19th and early 20th Century,  the country has seen rise of the administrative state accompanied by the growing list of alphabet agencies (each approved by Congress) needed to manage it.  Congress has largely abdicated it’s constitutionally assigned role of legislating, and delegated it to executive branch agencies.   The problem is, Constitutionally, Congress alone is empowered to pass laws and there is no provision in the Constitution for it to delegate that power to others.  Still, successive Presidential administrations have encouraged Congress’s trend of delegating authority (and why not, it gives the President more power) and, alarmingly, the Courts have acquiesced in the trend — in the meantime seizing power for themselves. 

David Schoenbrod has written a number of insightful books on Congresses irresponsible delegation of authority and the tragic consequences it has had for this country including: Power without Responsibility: How Congress Abuses the People through Delegation. 

I’d like to propose a remedy, though it would require an act of Congress, a President who would sign off and future Congresses to actually exercise the power — each and every step, probably wishful thinking.

Congress should enact a law that requires every rule or regulation proposed to define, enable, carry out and enforce a law or portion thereof, to come before itself for an up or down vote on the regulation – thus, establishing its authority and responsibility for the it.  No longer could Congress pass a vague feel good laws, allow executive agencies to fill in the details and then complain that the agencies overstepped their authority when adopting or imposing the regulations.  If hoping Congress would approve every regulation is too much (though I think it is actually in the spirit of the Constitution), perhaps they could vote on every rule or regulation that had over a $25 million impact on the economy.  Having passed a law, if a regulation stemming from the law could not get a majority vote from Congress, one can assume it did not conform to Congress’s will in passing the law — which would also leave much less for the Court’s to interpret.  This would not solve all the problems the country faces but it would be a step toward greater accountability for the Legislature.

One can dream.

Print