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If there’s one front where both Congress and Trump appear poised to put some actual limits on the government, it’s the regulatory state.

Bureaucrats in unaccountable executive agencies — often called the “fourth branch of government” — have churned out tens of thousands of pages of new red tape every year, at a pace that only accelerates despite which party is in charge. Such is their power that Congress has mainly focused on adding new layers of laws to try to slow down their growth.

But is merely putting roadblocks in front of the regulators sufficient, or can Congress do better? Where has the idea gone of actually eliminating programs and agencies (and, yes, even departments), or at least devolving their authority back down to the states?

The struggle here is Congress finally recognizing its increasing irrelevance in our system of government in relation to an increasingly imperial presidency. The size of the leviathan state that has been created over the past century is staggering — far beyond the ability of any one central authority to govern effectively — that it’s natural that Congress might be intimidated to even try.

Perhaps the most important reform in the bill is the Separation of Powers Restoration Act, which requires courts to defer to Congress — not the regulatory agencies — when determining whether a regulation conforms with the law.

So it’s very encouraging to see a continued, strong effort to pass bills like the REINS Act, which would require that “major” regulations (those that are scored as causing more than $100 million in economic impact) get voted on in Congress before being allowed to take effect.

Even better, Rep. Steve King, R-Iowa (B, 81%) introduced an amendment to REINS that passed, which would apply the bill not just to future major regulations, but also to all major regulations currently on the books. Although combing through decades of regulations to evaluate whether to keep them would tie Congress in knots for years, presumably a great many obsolete, ill-advised, useless, and economically devastating regulations would be struck down by such a process.

Moreover, the House is set to pass a series of regulatory roadblocks that have been bundled together into the Regulatory Accountability Act. Perhaps the most important reform in the bill is the Separation of Powers Restoration Act, which requires courts to defer to Congress — not the regulatory agencies — when determining whether a regulation conforms with the law. In addition, the bill contains provisions to require extra studies to justify major regulations, and a provision that all legal cases against a new regulation must be resolved before it can take effect.

All in all, the REINS Act and Regulatory Accountability Act would do much to stop the expansion of the regulatory state if they can somehow make it into law. The current bills Congress is considering are a hedge against some future expansion of the bureaucratic state.

If Congress is actually concerned about reining in the natural growth of the bureaucratic state, it’s going to have to start actually changing laws — eliminating programs that are obsolete or have outgrown their purpose.

But other than just adding obstacles, whatever happened to reducing the actual physical and fiscal size of government? Whatever happened, in other words, to eliminating whole programs, agencies, and even departments from federal control?

At the end of the day, regulators can always find ways around whatever barriers Congress creates for them. They can break regulations into smaller chunks in order to not trigger restrictions on "major" rules, and they can play with how the cost of regulations are accounted for.

The regulators are all too often given open-ended missions by Congress and justify their continued funding and existence by constantly finding hundreds of new little things to regulate and control. If Congress is actually concerned about reining in the natural growth of the bureaucratic state, it’s going to have to start actually changing laws — eliminating programs that are obsolete or have outgrown their purpose.

So while the regulatory reform bills that Congress is advancing are absolutely encouraging and hopefully get signed into law, they are only a beginning. Weakening the hydra that is the federal leviathan doesn’t just mean putting a leash on it — it takes cutting off some of its many heads and sealing the wounds with fire.



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Josh Withrow is an Associate Editor for Conservative Review and Director of Public Policy at Free the People. You can follow him on Twitter at @jgwithrow.

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