Consider a new Competitive Enterprise Institute report that provides a timely overview of these issues. Its authors, Dan Greenberg and Devin Watkins, note that agencies “investigate and prosecute,” “issue rules with the force of law,” and “conduct hearings, trials, and appeals”—executive, legislative, and judicial functions, respectively. Such agencies as the Federal Trade Commission are often accountable only to themselves: an FTC investigation is adjudicated by FTC administrative-law judges and appealed to FTC commissioners. And agencies act on “relatively broad and vague statutes” from Congress that authorize them to “plug the legislative gaps that Congress has left open.” Hence, Greenberg and Watkins aim to “divest non-executive powers from federal agencies” and “banish the specter of unlimited government.”
The report makes two proposals for judicial and legislative reform. First, Greenberg and Watkins propose that Congress “end all relevant funding for all binding adjudicators and quasi-judicial bodies housed in executive and independent agencies” and create a new system of magistrates with the same function as current administrative courts, whose rulings would then be appealable to existing federal circuit courts. Second, they propose that Congress stop using appropriation riders and instead “provide funding for two new congressional committees” to produce “supplementary legislation” that would be responsible for much of what agency rulemaking does now: elaborating and explaining gaps in the law.