Breaking the Bureaucracy: How to Roll Back the Administrative State
The EPA is part of the vast alphabet soup of bureaucracies that have steadily gathered power in recent decades. Can President Trump and Congress rein them in?
Among the opportunities presented by Donald Trump's election is that we may finally witness fundamental reform of America's administrative state. This is no small thing, for administrative agencies — often called the fourth branch of the federal government — have been foisting countless rules on people and companies in lieu of Congress's own laws, or, too often, in outright defiance of them.
Instead of subjecting its policies to the checks and balances of the normal legislative process, the executive branch has been getting its way through the fiat of administrative law. Washington's regulatory agencies exert a dangerous gravitational pull on our politics.
When Barack Obama and Congress negotiated over proposed greenhouse-gas legislation in 2009, for example, the president knew that he could simply walk away from the discussions and enact his preferred policies via Environmental Protection Agency regulations.
Congressional Democrats knew this, too, and were happy to outsource policymaking to the EPA. Similarly with other policy areas: If administrative agencies are ready to do the president's bidding, what need is there for legislative give-and-take?
Supreme Court Chief Justice John Roberts described the problem acutely in a 2013 dissent in a telecommunications case, criticizing the court's deferential opinion in favor of the Federal Communications Commission. "The administrative state wields vast power and touches almost every aspect of daily life. . . . The Framers could hardly have envisioned today's vast and varied federal bureaucracy and the authority administrative agencies now hold over our economic, social, and political activities. . . . (T)he administrative state with its reams of regulations would leave them rubbing their eyes. "
The Republican-controlled House of Representatives has recently passed several bills to rein in this bureaucratic behemoth, but the measures stalled in the Senate, and, in any event, President Obama would have vetoed them. Now, as the Trump presidency dawns, major reforms may be at hand.
President Obama didn't invent the regulatory state, of course, but he leveraged it more aggressively than did his predecessors — and he did so in areas of fundamental national importance.
Obama's EPA offers the most striking instance. Pursuant to Obama's goal of reducing greenhouse-gas emissions, the EPA's radical "Clean Power Plan" asserted unprecedented federal regulatory authority over states' energy policies — so unprecedented that the Supreme Court blocked the plan until courts could fully review its legality.
Obama's FCC, in turn, has sought to impose "network neutrality" — a regulation mandating that all broadband internet service providers treat the information moving through their "pipes" equally, transforming private internet firms into the equivalent of public utilities, potentially stifling investment in this crucial economic sector — via an "Open Internet Order" that claimed to find immense new government power over media platforms in the 80-year-old Communications Act of 1934 and its 1996 update, the Telecommunications Act.
Change By Regulatory 'Inaction'
In other areas, the Obama administration tried to change federal policy not through regulatory action but through regulatory inaction. Regulators adopted a comprehensive policy of nonenforcement of existing immigration laws, though leaving law enforcement with a fig leaf of discretion to depart from this position on a case-by-case basis.
Nor was this an isolated example. Shortly after Obama's first inaugural, his Energy Department and Nuclear Regulatory Commission tried to kill the Yucca Mountain nuclear repository, despite Congress's statutes to the contrary, by simply not proceeding with the project.
Perhaps the administration's most controversial regulatory innovation was its effort to make policy through administrative "guidance" documents. Normally, agencies make policy primarily through the process of "notice-and-comment" rule-making, in which an agency publishes a notice about its proposed regulation and gives the public an opportunity to comment on it; the agency then publishes a final version of the rule, after taking into account the public's views.
At its best, this process helps to improve initial proposals; at the least, it preserves some transparency and helps build a record upon which federal courts can conduct judicial review. But when regulators skirt this approach and instead issue "guidance" documents, such procedural protections are vaporized.
The most controversial instance of governance by guidance: the Obama Education and Justice Departments' announcement of a new policy requiring schools to....
Adam J. White is a visiting fellow at the Hoover Institution and a City Journal contributing editor
This piece originally appeared in Investor's Business Daily