Friday, August 14, 2015

Let's Get THIS Amendment Started -- Now!

A few weeks back we were treated to a guest column from my MIT classmate Ed Fenstermacher, which dealt with young people letting their "destiny" be dictated to them rather than taking it on themselves.  A few days back, after my wrap-up piece on the Bill of Rights, Ed was kind enough to send me a lengthy message in comment, which included a suggested constitutional amendment I should give thought to.

Now, I don't have the readership of, say, a Mark Levin, who has actually taken time to write a book (a great Christmas present I got last year) suggesting some amendments which would greatly benefit the USA and enhance the reach of the Constitution.  I actually don't get to listen to Mr. Levin all that often, and so do not know if any actual effort to press these amendments has ever been made to Congress.  I certainly don't know why not; Mark is, well, brilliant.

That said, Ed's suggested text makes so much sense, and is so needed, that it merits a real "hearing" in our legislature immediately.  It is also so much to the benefit of Congress, in leveling power in its direction, that at least one Representative should see fit to be willing to introduce it.  One can only imagine that plenty, if not almost all, of the legislatures of the States would jump on it as soon as they could.

The text is simple, the concept very similar to one of those proposed by Mr. Levin in his book. As Ed actually drafted it, it reads:

No regulation proposed by any Federal Government agency shall have the force of law unless passed by Congress in the same manner as other laws.  No regulation currently in effect shall be enforced past five years from the passage of this amendment unless explicitly passed by Congress.

By "same manner", Congress would be expected to have a process for the validation of executive regulations that either (A) mirrors the manner in which Federal law is passed (in terms of its drafting and the percentages required for approval to sustain an Executive-Branch regulation before it is enforceable) or (B) is law, so that such regulations do not exist in the Executive Branch at all but only in the U.S. Code.

I cannot possibly say that this circumvents the Framers' intent in the Constitution; rather, it reinforces the notion that law is the purview of the legislature (duh) and the power to legislate -- and, more importantly, to create a state of illegality -- was given to Congress.

You have to love that its impact would be to sever regulations from the functions of the Cabinet departments.  They could "do" or "execute" -- hence their name.  But they could not "regulate" in the sense of creating rules which citizens must follow -- that would require them to go to Congress and ask for legislation.  They could administer what Congress has granted them legal authority to do then, just like they were formed to do.  But the only rules they could create would be their internal operations, covering their employees.

Every such effort has unintended consequences.  They're usually determined by imagining through the eyes of the non-participant how they would take advantage of this.  And I think Congress should certainly consider those consequences in taking up the amendment.  Do we handcuff our Defense Department through this, or is it not an issue because DoD doesn't really put rules on civilians?  Are we prepared to deal with the many regulations of the IRS, which pretty much only affect civilian citizens, or does that become the incentive for Congress to repeal and replace the tax code?

How many regulations has the Department of Labor promulgated that Congress has never sniffed, let alone voted on?  And whose lobbying to Labor has gotten them written as they have been?  How many of those "rules" are completely one-sided with no input from opposing voices?

What would the EPA do if it actually had to justify its rules to Congress to get them approved?  Might we not find ourselves forced to compromise for the sake of passage, with both sides -- business and the environment -- actually represented?

I love it.  I typically tweet out links to these essays to a few dozen readers every day, including members of Congress and presidential candidates.  To them I say that this brilliantly conceived proposed amendment to the Constitution should be taken up in committee promptly, while Congress's two houses actually talk with each other ... I think.

Let us balance powers, and balance them now.

 Copyright 2015 by Robert Sutton
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  1. Hi Robert,

    Ed and I go back to when he was a PhD student at Maryland. I believe that he has hit the nail on the head. However: I believe (I'm sure this can be researched) that congress, when they created these agencies, or at least approved them, delegated authority to them for the sake of creating regulations. While I believe that this was a gross dereliction of their duty, I can see how they wanted to save the trouble of having to deal with each regulation. With the mind-boggling volume of regulations being constantly pumped out by the executive branch, I can see why there will be many voices opposing this idea.

    Having said that, I really think it would be a great idea. We need to have the people's representatives forced to examine and approve/disapprove each regulation. It would surely slow down the increase of sclerotic damage to our economy!

    1. Thanks, George. The key, of course, is the existence of the "mind-boggling volume of regulations ...". With the immovable obligation of Congress to approve them going forward, and the immutable obligation of the agencies to produce only regulations defensible before Congress, the logical outcome would be fewer, better regulations. How much better could that be?