The Liberty Amendments: Restoring the American Republic (13 page)

But once again, in the late eighteenth century, as part of the Progressive movement’s agenda, a concerted campaign was launched to undo the constitutional construct by concentrating and consolidating power in the federal government. As Woodrow Wilson exclaimed in 1908:

The makers of the federal Constitution followed the scheme as they found it expounded by Montesquieu, followed it with genuine scientific enthusiasm. The admirable expositions of the
Federalist
[
Papers
] read like thoughtful applications of Montesquieu to the political needs and circumstances of America. They are full of the theory of checks and balances. The President is balanced off against Congress, Congress against the President, and each against the courts. . . . Politics is turned into mechanics under this touch. . . . The trouble with the theory is that government is not a machine, but a living thing. . . . It is modified by its environment, necessitated by its tasks, shaped to its functions by sheer pressure of life. No living thing can have its organs offset against each other as checks, and live. . . .
¹²

In the 1930s and 1940s, President Franklin Roosevelt launched the New Deal, in which Congress passed laws creating federal agencies and delegating power to them to regulate vast segments of the economy and daily life, in many instances bypassing or supplanting state lawmaking authority. Initially, the Supreme Court struck down a number of these programs—ruling that they went far beyond the authority granted the federal government under the Interstate Commerce Clause—including the Railroad Retirement Act’s compulsory retirement plans in
Railroad Retirement Board v. Alton R. Co.
;
¹³
sections of the National Industrial Recovery Act’s wage and hour requirements in
Schechter Poultry Corp. v. United States
;
¹⁴
and the Bituminous Coal Conservation Act’s establishment of a national coal commission and coal districts as well as the fixing of prices, wages, and hours in
Carter v. Carter Coal Company
.
¹⁵

However, the Court would soon reverse course and abandon its own precedent after Roosevelt threatened to change the Court’s makeup. Over time, he did in fact replace the sitting justices with men who shared his ideological views. Subsequently, in the 1937
Jones v. Laughlin Steel Corp
case, the Court held that “intrastate activities that ‘have a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions’ are within Congress’ power to regulate”;
¹⁶
later, in the 1942
Wickard v. Filburn
decision, it went much further, ruling that withholding goods from interstate commerce affects interstate commerce and therefore such activity is subject to congressional lawmaking power.
¹⁷

One of Roosevelt’s most prominent advisors, Harvard law professor James Landis, insisted in 1938 that “[i]n terms of political theory, the administrative process springs from the inadequacy of a simple tripartite form of government to deal with modern problems.”
¹⁸

These days, each of the federal branches has seized expanded authority over the states and the individual. In addition to Congress’s legislative authority, it is now commonplace for the courts to legislate by judicial review and the executive branch to legislate by regulation and executive order. More to the justification of the proposed amendment, the vastness of the federal bureaucracy—that is, an administrative state or what has become a fourth branch of government—destroys the very idea of a representative legislature and does severe damage to the separation-of-powers doctrine. Departments and agencies created by Congress are attached to the executive branch and exercise lawmaking power that is both delegated and not delegated by Congress. And
their myriad regulations and rules have the force of law, including criminal and civil penalties. Under present conditions, the administrative state’s omnipresence makes congressional oversight, political accountability, and rational reform mostly impracticable if not impossible. And Congress seems more than willing to abandon its core function to the executive branch and accept the status quo, having taken rare and minor steps to rein in the bureaucracy.

Ironically, judicial review, which is exercised vigorously and expansively by the Courts, is all but nonexistent in matters involving congressional delegations to administrative agencies. They mostly defer to the discretion of Congress and, with few exceptions, uphold administrative actions to the extent they consider them seriously at all. Moreover, on those occasions when the Supreme Court does exercise judicial review in these matters, it has been known to extend the power of the administrative state beyond Congress’s already broad delegations. For example, in the 2007 case
Massachusetts v. Environmental Protection Agency
, by a 5 to 4 vote the Court actually expanded the Environmental Protection Agency’s (EPA) authority to regulate carbon dioxide and other greenhouse gases, despite the agency’s long-held determination that these gases are not pollutants subject to regulation. The Court opened the door to an infinite number of agency regulations affecting an endless line of industries, products, and processes.
¹⁹

The modern administrative state has power, resources, and tentacles that boggle the mind. For example, in 2008, the Small Business Administration estimated that annual regulatory compliance costs amounted to $1.752 trillion.
²⁰
In 2012, the Obama administration issued new regulations costing $236 billion. New
EPA regulations alone resulted in $172 billion in regulatory costs.
²¹

The 2012
Federal Register
, the official federal publication documenting administrative rules and proposed rules, exceeded 77,000 pages. The 2011 and 2010
Federal Register
s were 81,247 and 81,405 pages long, respectively. In 2011, regulatory agencies issued 3,807 final rules, yet Congress passed and the president signed 81 laws.
²²
In 2012, the bureaucracy reportedly issued 212 “economically significant” federal rules, each projected to impose more than $100 million in economic costs. In the last ten years, the issuance of economically significant rules has increased 108 percent.
²³

Furthermore, the number of criminal offenses spawned by these regulations, for which citizens are liable, is unknown even to the federal government. The Heritage Foundation observed that “[s]cores of federal departments and agencies have created so many criminal offenses that the Congressional Research Office (CRS) [an arm of Congress] . . . admitted that it was unable to even count all the offenses. The Service’s best estimate? ‘Tens of thousands.’ . . . Congress’s own experts do not have a clear understanding of the size and scope of federal criminalization.”
²⁴

Most jarringly, presidents will not hesitate to use the administrative state’s rulemaking processes to circumvent Congress when Congress refuses to enact legislation demanded by a president, or does not act quickly enough to satisfy a president’s ambitions. Indeed, President Barack Obama has declared repeatedly, including in his 2013 State of the Union speech, that “
if Congress
won’t
act
soon to protect future generations, I
will
”—threatening to legislate by executive branch regulation in lieu of congressional action.
²⁵

The system of federalism is also undermined severely when federal departments and agencies commandeer and preempt state authority, destroying state sovereignty and forcing states into their service—or, conversely, when states surrender their sovereignty in exchange for federal grants and subsidies conditioned on a state’s compliance with the mandates of a federal department or agency.

To shed some light on the process, it is worth a brief primer on administrative law—in plain English, of course. Consider that in 1972, Congress passed the Clean Water Act, a law that empowered the EPA to take steps to reduce water pollution by enacting rules or regulations. Once Congress grants such regulatory authority, the agency has discretion to achieve the stated goal.

The actual process of enacting a regulation is somewhat technical. Regulations often originate with what is called an “Advance Notice of Proposed Rulemaking.” This initial step consists of a proposal of the action the agency is planning. After a given period of time, the agency releases a “Proposed Rule” for the public to consider and, if moved, submit formal comments. Comments pertaining to a given rule are usually filed by those parties or individuals who have a specific interest in the substance of the rule. The EPA will elicit comments from, say, environmental groups or businesses affected by the regulation. Comments are intended to notify the agency of any legal or perceived legal deficiencies in the proposed rule. Interested parties can notify the agency of widespread support or opposition. The standard time frame for submission of comments to a proposed rule is usually sixty days.
²⁶

Unfortunately, the process is not always as transparent and professionally objective as might appear on the surface. It can be beset with political and ideological agendas, cronyism, and secret
communications, making the comment period a formality, not a serious pursuit of useful information and advice.

The agency has wide latitude in determining when to promulgate a final rule. The Congressional Review Act (CRA) provides that Congress may review these regulations and, if a joint resolution susceptible to a presidential veto passes, the regulation can be overruled.
²⁷
Since 1996, Congress has disapproved only a single rule. Clearly, the CRA is not an effective tool for ensuring congressional oversight or curbing regulatory overreach.

Private parties wishing to challenge the legality of a final rule are obligated generally to file a petition in the U.S. Court of Appeals for the District Columbia Circuit within sixty days of the promulgation of the final rule.
²⁸
Challenging the legality of a regulation is a difficult and expensive process and succeeds in very limited instances. A number of factors make challenging federal regulations in court particularly difficult.

First, the court hearing the challenge presumes, as discussed earlier, that the rule is valid. The private party challenging the regulation must demonstrate that the agency exceeded its rulemaking authority. The burden is on private parties to show that the regulation is illegal. Under current law, the reviewing court will rule a given regulation improper if it determines the agency acted in an “arbitrary or capricious” manner or if the agency abused its discretion or acted “not in accordance with the law.”
²⁹
Therefore, an agency’s regulation will be upheld provided it is rationally based. What constitutes “rationally based” is not always clear, and individuals and groups spend many thousands of dollars on expensive lawyers who attempt to convince courts the agency has acted in an unreasonable manner. It is difficult, if not impossible, for most individuals to husband the resources and expertise
to challenge effectively these regulations. Even lawyers who specialize in administrative law often fail. Moreover, most citizens have no idea that rules that may affect their daily lives are being promulgated, given the insular nature of the process, the quantity of regulations being issued, and the news media’s disinterest.

Second, courts have dismissed categorically the allegation that a particular agency action constitutes impermissible legislative activity. In other words, courts reject the argument that Congress cannot delegate its core function of legislating to an executive branch entity—known as the
nondelegation doctrine
. The Constitution’s plain language makes clear that Congress is vested with “all legislative powers herein granted.” But the Supreme Court has declared the doctrine unworkable, which, in turn, damages the separation-of-powers doctrine. The Court, which often exercises judicial review in an activist fashion, believes it is “almost never qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.”
³⁰

Another factor favoring federal agency rulemaking authority is the overwhelming deference paid by the courts to the agency’s positions. When private entities challenge a given regulation, they often allege that the agency acted improperly. Under a Supreme Court–invented legal standard known as the
Chevron
doctrine, when Congress passes a broadly worded law, the agency’s interpretation of what the law means will be controlling unless such interpretation is unreasonable.
³¹
Thus, for example, Congress passes a generic, benign statute and delegates the authority to work out the details of the law to the federal bureaucracy, which is not accountable to the electorate. Lower courts, which often hear cases involving regulatory challenges, are bound by the
Chevron
doctrine and will uphold agency regulations in all but the most extraordinary challenges.

There are numerous regulations that exceed their respective statutory mandates—so many, in fact, that they cannot all be discussed here. However, a group of recent environmental regulations—recently upheld as valid by the D.C. Circuit Court of Appeals—illustrate the desirability of the proposed amendment.

In 1970, Congress passed significant amendments to the Clean Air Act (CAA) that were designed to reduce air pollution from stationary sources, such as factories and power plants, and mobile sources, such as cars and airplanes.
³²
The newly created EPA was tasked with enforcing and administering the law. Congress passed additional amendments to the CAA in 1973 and 1990. Each time, Congress decided to expand the EPA’s authority to regulate a growing number of hazardous substances.