“Who Should Rule?” and the Administrative State

Alan wrote a post over at his blog discussing the EU from a Popperian perspective (read his whole post, especially if you don’t know what a Popperian perspective on “Who Should Rule?” questions means):

The short version of how the EU works runs as follows. The heads of EU states form the European Council. The European council picks a group of politicians called the European commission who are responsible for originating and writing EU regulations and that sort of thing. The European parliament is an elected body who can vote up or down legislation written by the European commission, or amend it, but are not allowed to originate legislation. So the people who are legally supposed to originate and write all the laws can’t be voted out of office by the public. The people who are subject to being removed by the public always have the excuse that they aren’t allowed to originate laws, so they can’t deliver any specific policy.
By contrast, an MP in the British parliament can originate, amend or revoke laws and can be voted out for failing to deliver on policy promises.
The competition for which set of institutions is better isn’t even close.

This sounds really dumb. It also got me thinking about the administrative state in the United States, which has similar accountability problems to the EU and is basically a big rights-violating scam.

There’s a bunch of agencies under the Executive Branch, the administrative agencies, which do a lot of the actual law-writing (in the form of issuing regulations).

How the scam works is: Congress writes a law which empowers some agency to do something. But the law is pretty vague, and leaves a lot of the implementation details up to the agency.

So then an agency issues some regulation pursuant to the law. Since the heads of the agencies are appointed by the President and since the agencies are in the Executive Branch, the President gets to exert a lot of control over the general shape of how the regulations come out.

So then some regulation comes out. Say it’s a terrible regulation. Tons of people are mad. But Congress shrugs and says “Hey man we just wrote the Making America Healthier and Happier Act, we had no idea HHS would take that act and hire a bunch of people to force-feed Americans their broccoli!!”

And some Congressmen maybe try and change the law to stop the agency from doing the bad regulation, but changing laws is actually quite hard. And maybe they try and do something else to deal with the regulation (using control over funding, using some kinda congressional veto they made up, whatever) but those efforts fail because politics. And maybe some people try and sue and maybe they win cases or maybe we’re stuck with a bad regulation until we GET A NEW PRESIDENT. Or maybe we’re stuck with it FOREVER.

One example of this is the Waters of the United States rule, a recent rule which greatly expands the EPA’s regulatory powers over private land by changing the definition of “waters of the U.S.” The EPA’s authority here comes from the Clean Water Act (who can oppose clean water right??) The EPA has been strongly opposed on this by Congress. But what has it come to? Well, some people in Congress tried to use the Congressional Review Act to overturn the rule, but Obama vetoed them and they didn’t have enough votes to override his veto.

That’s not what the procedure should be like. It shouldn’t be the same procedure to overturn a bad regulation as it is to enact an entire law in the first place. The current system makes it way way too hard for there to be any accountability.

Ideally, Congress should be able to overturn any regulation of any administrative agency that it doesn’t like with a simple majority vote that the President can’t veto. And if there’s a Constitutional issue with that, we should amend the Constitution to fix it. That’d be a pretty big change, but we need some big change in order to get the out-of-control administrative state under control and fix the system.

The current system of hoping you get a favorable President to fix a bad regulation rom the EPA is ridiculous. Presidents are elected only every four years and have a lot on their plate. Fixing some dumb regulations isn’t going to be a huge priority for most of them. Ted Cruz, to his great credit, has talked repeatedly about the Waters of the United States rule and his intent to repeal it. But there needs to be some delegation of these issues to people like Congressmen who can be held accountable. Otherwise, we might as well be Europeans!

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