Congress needs to fight the bureaucracy – and itself

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After testifying before the House Committee on Administration in July on Congress in a Post-Chevron World, I received a series of Questions for the Record (QFRs) from the majority and minority staff, which I addressed in a detailed response just before Labor Day weekend.

These questions provided an opportunity to delve deeper into the critical issues surrounding the role of Congress in overseeing the ever-expanding Administrative State, as well as its culpability in the same. The balance of power between the legislative and executive branches is critical and I said as much. However a major focus needs to be on Congress's abuse of power, from which the derivative regulatory state takes its marching orders and cues.

I have in the past made the case for a congressional body chartered to continually advocate moving regulatory functions out of the federal government. The agency should relentlessly challenge the premises of market failure and supposed administrative expertise.

The majority inquired whether existing bodies like the Congressional Budget Office (CBO), Congressional Research Service (CRS), and Government Accountability Office (GAO) could serve as "force multipliers" to scrutinize executive actions and ensure they align with Congressional intent. The majority recognizes that, given our new post-Chevron era, judicial deference to agency interpretations of statutes is waning. The onus is on Congress to reclaim its lawmaking authority and write law more clearly.

It was an interesting question that got my wheels turning. Existing bodies can certainly serve a role in more rigorous oversight of agency actions, particularly if resources and staff are allocated to them and away from the executive branch. Without such a move, they would probably resist the new responsibilities.

I listed in my response to the QFRs several steps offices like CBO, CRS and GAO might take. These agencies could ensure regulatory oversight laws get followed, for instance. Currently, they are often ignored. Congressional agencies could also restrain the use of guidance documents, encourage the formal rulemaking provided for in the APA, and assess the regulatory implications of hundreds of billions in subsidies, loan guarantees, public-private partnerships, state grants-in-aid, and the like.

The minority staff was skeptical of the regulatory sunsetting I advocated in July testimony, and of my claim that expertise lies outside, not inside, agencies. I frequently make the observation that regulations can often hinder, rather than help, regulatory discipline and the public interest, and naturally took the opportunity in the response to their QFRs to do so again. The left tends to conjure up a value or pursuit and name an agency after it. Congress then shovels in money and considers that the right way to do regulation. It is not.

Sunsetting, as part of the pathway to a restoration of constitutional normalcy, would let Congress regularly reassess regulations and eliminate outdated or counterproductive ones. Congress could and would extend rules that truly protect public health and safety. Legislators need to do so with a skeptical eye regarding whether such functions properly lie with the central government, or instead with state and local bodies. The goal of sunsetting is not undermining necessary protections, but rather to serve a necessary tonic to keep a permanent executive branch bureaucracy from causing more harm.

I also addressed the misconception that regulatory expertise resides primarily within federal agencies. The private sector possesses the specialized knowledge needed not only to create new products and services but also vital information from market discipline.

With truly competitive free enterprise, corporations are subject to multiple pressures such as media outrage, consumer expectations, price competition, and investor takeovers. These forces drive both innovation and discipline, which is a kind of regulation, and are almost wholly lacking in government agencies that purport to do the job. The government currently does not have many tools to check either regulatory zeal or regulatory capture by the most well-positioned of the corporations these agencies allegedly discipline.

The minority expressed concern over environmental stewardship and access to goods and services for the less fortunate, but private sector initiatives frequently outpace government regulations and deserve praise. Companies that fail to adapt to these market-driven disciplines risk damaging their reputations, losing customer loyalty and being trounced by competitors.

The minority staff's questioning implied that the Administrative State model is the reason for stability. Absent government regulation, corporations would engage in harmful practices such as pollution or discrimination. I emphasized that various legal frameworks-such as property rights, common law principles, and state laws-already provide robust protections against offending behaviors in ways that exceed federal government's standards. This is particularly true in rapidly evolving fields like technology and the management of environmental amenities.

The question isn't whether regulation is necessary, but rather what form it should take and who should be responsible for its implementation. Right now, the federal government is generally a bad bet. The traditional regulatory oversight mechanism housed at the White House has been compromised perhaps irretrievably by progressive activism. Executive oversight has turned from vigilant watchdog to pom-pom totting cheerleader who can't understand why Team Regulators could ever be in the wrong.

Congress's over-delegation of power to regulatory agencies has been a problem for some time. The end of the doctrine of Chevron deference wherein courts yielded to agencies' purportedly reasonable interpretations of ambiguous statutory language is an extremely important development. The Committee is right that Congress must prepare and build in robust support tools. However, the last few years of large-scale legislative actions with regulatory effect (like the inflation, infrastructure and tech subsidization laws) have demonstrated that Congress's unambiguous statutes are a huge problem. Over-delegation is a crisis; disregard of enumerated powers is a worse one.

The QFR responses afforded me an opportunity to highlight the ongoing struggle with the hazards of overregulation whether its source is agencies or Congress. The Administrative State is indeed expanding, but so is the legislative one. It is imperative that Congress steps up to exercise its constitutional authority in oversight and also find some way to prevent its own abuses of power.