Congress needs to restore representative government: A new legislative solution

Background

There is significant momentum right now to help restore our nation’s republican form of government and ensure that Congress and not unelected agency officials make the major policy decisions affecting the lives of Americans.

Much of the credit goes to the US Supreme Court for decisions like Loper Bright v. Raimondo (getting rid of the Chevron doctrine) and West Virginia v. EPA, which helped to flesh out the major questions doctrine. This judicial doctrine requires agencies to have clear authority to issue rules of major significance. What constitutes a major question is far from clear, but it involves “extraordinary cases,” as the Court has explained. So it will likely be applied in very narrow situations.

Loper Bright and West Virginia v. EPA are important cases, but there is only so much courts can do. Agencies are still going to have significant leeway to go way beyond the intent of Congress, especially when citing broad or vague statutory language that allows them to get creative with their rules.

Congress needs to take action

Congress needs to pass major reform that helps to restore representative government. Congress created the agencies and the rulemaking process and now it’s up to legislators to address the problems arising from its own creations.

There should be no tinkering or small ball. Enough trying to change the rules of a game that those who believe in our republican form of government don’t even want to play. We need to change the game. This simply means restoring representative government as envisioned by the Framers of the US Constitution and rejecting the President Woodrow Wilson-vision of a country run in large part by unelected experts. This also includes rejecting Wilson’s shocking disdain for voters. 

Regulatory reform is never easy, even for modest reforms. Plenty of people want to keep power within the agencies and give them a blank regulatory check to aid the ideological ambitions of those who seek greater governmental control. One new and simple solution would void this blank check.

The new legislative solution

Similar to the major questions doctrine, Congress should require that an agency have clear statutory authority for a rule if it would defy common sense to think Congress would have authorized such a rule without saying so directly.

For example, Congress should prohibit agencies from issuing rules outside their demonstrated regulatory expertise, unless clearly authorized to do so. After all, one of the biggest justifications for agency rulemaking is the alleged expertise of agencies. If they don’t have the expertise on certain issues, then it follows that Congress didn’t want them to promulgate rules on those matters.

That’s common sense, as are many other boundaries. For example, absent clear authority from Congress, it would be absurd to think lawmakers wanted agencies to equate shutting down businesses with regulating them, as the EPA is doing with its new power plant rule. The rule is creating infeasible requirements that necessarily will lead to plant closures.

It would also defy common sense to think Congress, without saying so clearly, is OK with an agency banning or limiting the availability of certain types of goods, such as gas-powered cars, or reshaping an entire industry. Therefore, legislators should make it clear that such rules are prohibited unless clearly authorized by law.

Even with the existence of the major questions doctrine, new legislation from Congress is required because a congressionally-passed law could provide both clearer prohibitions against certain agency rules and far more comprehensive protection from agency abuses than the judicial branch. 

Statutory language should serve as a first line of defense against agencies ignoring the will of Congress and, thereby, the will of the voters.

What would the reform mean?

There are many recent energy and environmental rules that very well could get shot down due to the major questions doctrine, such as the Clean Power Plan 2.0, the “EV mandate,” and the SEC climate disclosure rule. This doesn’t even include many other rules unrelated to energy and environmental issues.

But it is hardly a slam dunk that the Supreme Court will shoot down these rules on major questions grounds. 

Congress should ensure that these rules and similarly egregious rules don’t have a chance of survival. If legislators develop clear authority requirements that are easy-to-apply by courts, instead of worrying about whether the worse agency abuses will persist, Americans can have confidence that these abuses will be a thing of the past.

This article is adapted in part from an original article in The Daily Signal entitled The Overreaching Power of the Bureaucracy is Destroying our Representative Government.