President Obama’s regulatory-based legacy will be easy to unravel because most anything one president can do unilaterally, a subsequent president can undo.
The flimsiness of Obama’s legacy demonstrates a constitutional crack in the foundation of American governance. Over the last few decades, the executive branch has accrued an unhealthy amount of power at the expense of Congress and the judiciary, such that now every change of party in the White House results in wholesale shifts in the administrative rules that increasingly govern American society.
Consider, for example, the controversial “stream buffer zone” rule. It’s a regulation to protect streams from surface mining activity. During his administration’s lame-duck time in late 2008, after a five year rulemaking process, the George W. Bush administration issued its version of the rule, which asked little of industry.
President Obama disliked the Bush-era rule, and after a seven-year rulemaking process, his administration issued its own lame-duck version of the rule, one that is unreasonably punitive. Almost assuredly, the Trump administration will revise the stream buffer zone rule such that it won’t look anything like what the Obama administration promulgated. And if a Democrat wins the presidency in 2020, it is likely the rule would be significantly altered yet again.
There are hundreds of rules like this across scores of federal agencies that flip-flop between two extremes as the White House changes political parties. This sort of seesaw policymaking is unfair, because regulated entities have no certainty as to what the rules are or will be. They are forced to comply with moving targets.
Unfortunately, ping-pong policymaking is on the rise as more and more law emanates from the executive branch. Not long ago, it was taken for granted that Congress is the lead policymaking organ of the U.S. government. However, over the last few decades, the president’s administrative apparatus has become the primary lawmaker.
According to my colleague Wayne Crews’s latest Unconstitutional Index, Congress passed 211 public laws in 2016, while the executive branch promulgated 3,853 regulations with the force and effect of law. That’s 18 law-like regulations imposed by the president for each law enacted by Congress.
There are two major reasons for this troubling shift in power from Congress to the executive branch.
First, lawmakers in Congress give precedence to party loyalty over institutional pride. For most of American history, protecting the Congress’ turf from presidential power grabs was a bipartisan matter in the House and Senate, but this is no longer true. Now, if a Republican resides in the White House, congressional Republicans do not care about presidential aggrandizement. And it’s the same for congressional Democrats if one of their own is in the Oval Office. These skewed priorities undercut Congress’s ability to oversee the presidency.
Second, the judiciary has abetted the rise of the administrative state by adopting expansive deference doctrines that permit agencies to broadly interpret their own statutes so as to enlarge their own power.
The result is a growing imbalance among the three branches of government. The Founding Fathers intended for a separation of powers maintained by institutional ambition, yet, in spite of this constitutional design, the Congress and courts have passively stood aside while the executive has aggrandized itself.
The solution is straightforward. Both the Congress and the judiciary should reassert themselves among the separated powers and thereby check the ascendant executive branch. For Congress, this means acting with bipartisan unity in defending the legislature’s power; in practice, this would entail effective oversight of administrative agencies, and also a greater willingness to use the power of the purse to influence regulatory agendas. For federal courts, the answer is to abandon deference doctrines that allow courts to say what the law is, and administrative law should not be an exception.
By getting back into the permanent competition among branches of government, the Congress and federal courts would fulfill their constitutional roles and, at the same time, put an end to the policy whiplash caused by the growing primacy of administrative lawmaking.
Originally posted at Sun Sentinel.