Thomas Jefferson feared the tendency for government to grow and for liberty to yield. The Founders' solution was to create a central government with explicitly limited powers delegated by the people and enumerated in a binding constitution.
Today the power of the federal government is nearly boundless. But even the critics of Big Government have overlooked an equally serious problem. Over the years, Congress has increasingly delegated its lawmaking powers to unelected and politically unaccountable bureaucrats.
A general principle of American jurisprudence, called the doctrine of "nondelegation," is that delegated powers cannot be redelegated. That is, Congress does not have the authority to give away its fundamental lawmaking powers. The Framers wisely followed John Locke's admonition that "the legislative cannot transfer the power of making law to any other hands." Thus Article I of the Constitution begins, "All legislative Powers herein granted shall be vested in a Congress . . . ." For generations, the Supreme Court held that the transfer by Congress of any of these legislative powers to another branch or agency is unconstitutional.
In the late 1930s, however, the Court reversed itself, and upheld laws by which Congress merely instructed agencies to make decisions that served "the public interest." Since then, Congress has ceded its basic legislative responsibility to executive agencies that craft and enforce regulations with the full force of law. The Supreme Court has not invalidated a single delegation of congressional power since 1935.
Today, evidence abounds that Congress has slipped its constitutional moorings. The Americans with Disabilities Act tells employers to make "reasonable accommodation" of handicapped workers unless there is an "undue hardship," but leaves it to the Department of Justice to determine what is reasonable (and required).
The Occupational Safety and Health Act calls for workplace standards that are "reasonably necessary or appropriate to provide safe and healthful employment" but allows the secretary of labor to decide what that means. The Clean Water Act's mandate to protect "navigable rivers" permits the Army Corp of Engineers and the EPA to exercise control over any land that has a certain minimum water content. By law, commercial banks and investment firms can only affiliate if they are "well capitalized," a vague determination made by the Federal Reserve Board and the FDIC. In 1994, the General Accounting Office measured the economic, social, and environmental cost of all regulations at more than $647 billion.
The dangers of delegating congressional authority to unelected bureaucrats are many. For one, it allows Congress to exercise its lawmaking authority and enjoy the plaudits from popular laws without taking responsibility for their legal consequences or their costs.
But the chief victim is accountability in government. Originally designed to be the most accountable branch of government, Congress has grown increasingly irresponsible. The fundamental link between voter and lawmaker has been obliterated by unelected regulators hiding behind bad laws. A handful of broadly written laws has spawned an alphabet soup of government agencies and an overwhelming regulatory burden that undermine the very idea of representative government.
Several bills now before Congress seek to rein in unaccountable regulatory agencies. Unfortunately, these reforms aim only to improve regulations by imposing additional procedural requirements on the agencies. In effect, they seek to regulate the regulators.
Instead, Congress should act to restore accountability in government by requiring itself to comply with Article I. The Congressional Responsibility Act would subject all regulation to Congressional approval. Under the bill, a regulation can be approved in one of two ways: (1) through an expedited process designed to limit debate and amendment and allow for a quick vote on uncontroversial regulations; (2) through the regular legislative process, whenever a majority of members agree to waive the expedited method. Regulations would only take effect if approved by both houses of Congress and signed by the president. There would be no need to impose additional procedural requirements on agencies. The bill would not be retroactive.
Sounds radical? This is an ideologically neutral and nonpartisan reform. Concerns about legislative delegation have been voiced by people as politically diverse as Judge Robert Bork and Nadine Strossen, the president of the American Civil Liberties Union.
If we are to restore constitutional government, Congress must first recover its legitimate powers and rein in the regulatory agencies of the executive branch. After all, rebuilding a limited federal government, whose elected representatives are accountable for the laws they pass, is the first step toward restoring the faith of the American people in their leaders and returning to the republic envisioned by our Founders.
