Congress may be getting serious about reclaiming its constitutional power. After decades of ceding power to the federal bureaucracy, the 115th Congress is attempting to check overzealous regulators, trim bureaucrats’ broad discretion, and ensure that federal policy is set in the halls of Congress rather than the myriad federal agencies spread across Washington.
Speaker Paul Ryan’s (R-WI) A Better Way initiative and Sen. Mike Lee’s (R-UT) Article One Project, both drafted while President Obama was still in office, laid out comprehensive programs for reestablishing a balance between the legislative branch and bureaucracy. Since President Donald Trump’s election, Congress has taken several concrete steps toward that end.
The House of Representatives passed a bill to require all major regulations to get congressional approval before taking effect (the REINS Act) and another (the Regulatory Accountability Act) to ensure regulators are more considerate of implementation costs and public input when drafting new rules. A third bill, designed to defund “zombie programs” that have outlived their congressional authorization, is being considered by the House Rules Committee. Since President Trump took office, Congress has also eliminated 14 costly regulations via the Congressional Review Act.
The Article One Restoration Resolution (AORR), the latest effort to empower the legislative branch, promises to treat the root cause of executive overreach rather than mitigating the consequences as these other congressional actions do. The bill, authored by Rep. Warren Davidson (R-OH), would require each congressional committee to review the portions of the U.S. Code under their jurisdiction and identify places where vague or unclear statutory language allows agencies undue discretion to interpret the law as they please.
“For too long Congress neglected the hard work of legislating, and instead passed vague laws that give way too much authority to unaccountable bureaucrats,” said Davidson upon introducing the bill. “That must stop. We owe it to the American people that the laws we write are clear, transparent, and constitutionally limited.”
Why We Need This Law
The need for a bill like the AORR came into sharp focus during the Obama presidency. Over the last eight years, the president and federal agencies, all too often aided by the Supreme Court, took advantage of imprecise legal language to expand federal power.
For instance, the Environmental Protection Agency used its authority under the Clean Air Act to regulate “any air pollutant” that can “reasonably be anticipated to endanger public health and welfare” to limit carbon dioxide emissions, claiming they contribute to climate change. Acting on his own prerogative, Obama put 550 million acres of public land and sea off limits to any commercial use via his authority under the 1906 Antiquities Act, which gives the president authority to designate as national monuments “historic landmarks, historic and prehistoric structures, and other objects of historic and scientific interest.”
President Obama and the bureaucracy’s expansive interpretation of its own authority was the apex of a pattern that has developed since the middle of the twentieth century. Under President Franklin Roosevelt’s New Deal, federal agencies multiplied and expanded rapidly. At the same time, the federal government began to assume powers once solely possessed by state and local governments or individual citizens. Congress was eventually overwhelmed by the growing scope and complexity of federal public policy. Writing vague laws that grant broad latitude to regulatory agencies became a way for members of Congress to keep government growing apace despite their inability to manage its activities carefully.
For Congress, writing vague statutes that allow bureaucrats plenty of room for interpretation is not just a coping mechanism. This arrangement has positive advantages for individual representatives and senators. Sen. Heidi Heitkamp (D-ND) pins the problem the AORR is attempting to address on “laziness and risk aversion on part of the Congress.” Chiding her fellow legislators, she said, “We’d rather write nasty letters to regulators than to actually take responsibility for making the decision ourselves.” By passing bills that nominally address a societal concern while leaving hard choices and strict enforcement to bureaucrats, Congress gets to take the credit and pass on the blame.
Getting a Reluctant Congress to Do Its Job
Getting Congress to fulfill its constitutionally mandated duty to make policy rather than sweeping aspirational statements will be difficult task because, in part, it requires members of Congress to make certain tough choices they would rather avoid, as Heitkamp observed. One shortfall of the AORR is the lack of any incentive for congressional committees to take the resolution seriously. As written, the AORR does not offer any reward to committees that thoroughly scour the laws under their jurisdiction, nor does it sanction committees that let vague statutes stay put.
The proposed resolution’s lack of teeth may be a necessary nod to political reality. After all, a bill containing a draconian enforcement mechanism may not make it very far in Congress. Further, if the resolution passes, political pressure may force legislators’ hands. Chairing or sitting on a committee that could not find any opportunities to rein in bureaucrats may not bode well for members of Congress whose constituents are calling on politicians to drain the swamp.
Even if constituency pressure does not mount, there is reason to believe members of Congress will see the AORR as an opportunity to act rather than a chore to avoid. Passing vague laws and allowing the bureaucracy to pick up the slack served legislators’ interests so long as presidents and administrators had a reasonable sense of how far the law could be stretched. The Obama era showed that Congress can no longer assume the terms of this informal détente will be honored.
The president and the federal bureaucracy used any statutory or judicial imprecision to grow federal power and press a progressive agenda. This was a revealing—if costly—stress test for the nation’s laws. The last eight years revealed soft spots in the U.S. Code as a flood reveals holes in a dam. The water has receded for the moment and Congress, to its credit, seems intent to make repairs before the river rises again. With a president in the White House who fully understands the need to scale back on regulation and regain control of the career civil service, the time to act on proposals like the AORR is now.
This piece originally appeared in The Federalist