This Constitution Day marks 229 years since the Framers signed the U.S. Constitution following more than four months of debate, votes, and revisions in Philadelphia.
The Constitution deserves celebration.
Civil rights enshrined in the Bill of Rights ensure numerous freedoms absent in other parts of the world. We are not kidnapped and detained without cause. We are free to practice our faith, and wear religious garments as suits our conscience. And we are free to group together and participate in political debate.
But we often overlook the benefit of a checked and balanced government. The Constitution prescribed a three-branched government to ensure that no faction could unaccountably overstep its authority. As children learn, the legislative branch makes law, taxes, and spends (Article I), the executive branch enforces law (Article II), and the judicial branch resolves cases and controversies before it (Article III).
For most of the our history, the Constitution has limited the federal government’s capacity to create law, tax, regulate, and criminalize. The three branches have the power to check each other, and the ballot box ultimately holds politicians accountable.
But the Framers could not foresee the emergence of the regulatory state, which has effectively become the fourth branch of U.S. government.
Congress abdicated its lawmaking powers to literally countless agencies from the New Deal era to the present day. Agency bureaucrats can and do generate regulations autonomously. In 1946, Congress passed the Administrative Procedures Act, which prescribed the “notice-and-comment” process to constrain agency rulemaking, but this is a poor substitute for the accountable and divided government framed by the Constitution. While the public may comment on proposed regulations before enactment, regulators may ignore opposition to costly new rules, or even fabricate public support in favor of regulation.
Agencies increasingly avoid notice-and-comment rulemaking altogether using what Clyde Wayne Crews calls “regulatory dark matter”: industry guidance, opinions, and interpretations. Because many agencies have enforcement power, guidance and opinion letters—even blog posts—may effectively impose new requirements and certainly new compliance costs of businesses. Through new “interpretations,” agencies take advantage of the deference courts give them. Interpretations can effectively announce new rules by decree, as when the Department of Labor unexpectedly decided that a 1938 law makes certain independent contractors into employees.
Some agencies have also become adept at usurping legislative and judicial powers by settling lawsuits with non-government organizations, which creates de facto law without formal rulemaking or appropriation. For example, the EPA currently hopes to expand its authority by imposing clean fuel standards on Volkswagen to settle unrelated diesel fraud claims. The EPA has a track record of setting policy though settled litigation.
While the three canonical branches of government counterbalance each other, the “fourth branch” simply accumulates regulations and dark matter rules over time. Layers accumulate like debris in a neglected gutter. Regulations fossilize over time, as once-burdensome rules become the expectations of industry, deterring competition and hindering innovation. Volumes of code can block the flow of economic development indefinitely.
It would be a fitting tribute to the Constitution.