Archive for the ‘regulatory reform’ Tag

Rep. Young blasts regulatory sprawl during Fairbanks visit – Fairbanks Daily News-Miner: Local News   Leave a comment

Rep. Young blasts regulatory sprawl during Fairbanks visit – Fairbanks Daily News-Miner: Local News.

I’m still voting against him in the primary because I think he should retire, but it’s hard not to like Alaska Representative Don Young!

Do We Need Constitutional Regulatory Reform?   Leave a comment

Mark Levin suggested in The Liberty Amendments that we need an amendment to restrict federal regulations.

In theory, we already have one – the 10th amendment recognizes the rights of the states to limit federal regulation within state borders. Of course, that amendment was effectively repealed sometime in the 20th century. We don’t actually need another amendment for the federal government to ignore. We need state legislatures to stand up on their hind legs and exercise their 10th amendment rights and the obligations to their citizens that come with it.

An Article V convention of the states might be a good opportunity for states to stand up as a group and announce their intention to tell the federal government’s regulatory agencies to “go pound sand.” So, while the 10th amendment theoretically acknowledges states’ rights, perhaps the 10th amendment requires amendment to make clear that the states can reject federal regulation under many circumstances and to provide a clear mechanism for them to make use of that right.

A handful of Representatives, including Don Young of Alaska, have tried to reform the administrative state through the REINS Act, but it appears that a legislative remedy is not possible, so sadly, we do probably need an amendment that dismantles the administrative state that operates with delegated Congressional power largely within the executive branch, but often without executive oversight. Because it acts as an extra-constitutional fourth branch of government, it is impossible to control and should simply be done away with or at least made to submit proposals to Congress justifying their continuing existence.

Congress needs to be held responsible for the delegation of its authority and made to justify it periodically. And the Executive Branch should have to submit to Congress periodically to justify the existence of Executive Branch agencies. Yes, that would include the military.

Congress Could … if they would   Leave a comment

The administrative state has taken 100 years to grow from a handful of agencies that might have made government a bit more efficient to the maze of three-letter agencies that often contradict one another and always make life more complicated for American citizens. Most of us commit a crime at least four times a day, it is estimated, and a felony under regulatory law at least once in our lives, if not annually. Alaskans take it as a matter of pride that we’re law-breakers. We may not know which regulatory laws we personally are breaking, but we know there have to be some.

So, how do you fix that?

Congress should increase scrutiny of new and existing regulations to ensure that each is necessary, and that costs are minimized. 

  1. Require congressional approval of new major regulations promulgated by agencies. Under the Constitution, Congress is responsible for the rules governing Americans. Regulatory agencies operate only with the authority delegated, and within the limits set by Congress. Typically, agencies are given broad mandates, allowing them discretion as to what to regulate and how to do so. This may sometimes be necessary, but Congress should not be able to evade accountability for the outcome. Requiring Congress to affirmatively approve major new rules, as provided in the proposed Regulations from the Executive in Need of Scrutiny (REINS) Act (H.R. 367, S. 15) would help to ensure a congressional check on regulators, as well as the accountability of Congress itself.
  2. Develop a congressional regulatory analysis capability. In order to responsibly exercise its required duties, Congress needs the capability to analyze proposed and existing rules independently, without reliance on the Office of Management and Budget or the regulatory agencies. This could be done through an existing congressional institution, such as the Congressional Budget Office (CBO) or the GAO, or through a new office created by Congress. Such a capability would also help Congress to better evaluate the regulatory consequences of its legislation. This would not require any net increase in staff or budget, but instead could be paid for through reductions in existing regulatory agency expenses, or reprioritizing existing resources in the CBO or GAO.
  3. Establish a sunset date for federal regulations. While every new regulation promulgated by executive branch agencies undergoes a detailed review, there is no similar process for reviewing the need for regulations already on the books. Old regulations tend to be left in place, even when they are no longer useful. This tendency can be particularly harmful when, as now, there is a flood of new and untested regulations. To ensure that substantive review occurs, regulations should automatically expire if they are not explicitly reaffirmed by the relevant agency through a notice-and-comment rule-making procedure. As with any such regulatory decision, this reaffirmation would be subject to review by the courts. Sunset clauses already exist for some new regulations. Regulators, and if necessary, Congress, should make them the rule, not the exception.
  4. Subject “independent” agencies to executive branch regulatory review. Increasingly, rule-making is being done by so-called independent agencies outside of direct executive branch control. Agencies such as the Federal Communications Commission, the SEC, and the CFPB are not subject to review by OIRA or even required to conduct cost-benefit analyses. This is a serious gap in the regulatory process. These agencies should be fully subject to the safeguards applied to executive branch agencies.

Despite the weak economy, the Obama Administration continued to increase the regulatory burden on Americans in 2012, adding 25 major regulations that increase regulatory burdens by more than $23.5 billion annually. From the beginning of the Obama Administration through 2012, a staggering 131 major regulations that increase regulatory burdens have been issued, with costs approaching $70 billion a year. While the President has acknowledged the need to rein in regulation, little has been done to address the problem. Instead, it is getting worse.

Congress—which shares much of the blame for excessive regulation—must act to ensure that unnecessary and excessively costly regulations are not imposed or do not continued to be imposed on the U.S. economy and consumers. Without decisive action, the costs of red tape will continue to grow, and the economy—and average Americans—will be the victims. 

Reforming Regulation   Leave a comment

Regulation has always existed in America, even during the time of the Founding. Certain kinds of regulations are perfectly consistent with natural rights. These regulations must be formulated and implemented in the right way. The form and structure of the government are important for ensuring that regulation does not trample on the liberties of citizens.

The Founders carefully established institutional structures for regulating that ensured the safety of liberty. Their model provides us with a viable alternative to the administrative state and embodies three basic principles.

1. Administrative officials should exercise closely confined powers without open ended discretion. Their duties should be carefully described so that they execute the will of the legislature as much as possible. The less discretion administrators have, the better. Alexis d’Tocqueville observed in Democracy in America that in “the New England states, the legislative power extends to more objects than among us [in France]. The legislator penetrates in a way into the very heart of administration…. [I]t thus encloses secondary bodies and their administrators in a multitude of strict and rigorously defined obligations.”

The more administrative power is defined by legislatures, the more control the people have over the administration of regulation. Rather than trusting the “experts” to do what is best for them by granting wide powers to administrators, the Founding generation carefully limited administrative discretion to keep it accountable.

2. Use courts to administer the law where possible.  As Cass Sunstein, former head of the Office of Information and Regulatory Analysis, has explained, during the Founding era, “the United States—unlike European countries—lacked a well-defined bureaucratic apparatus.” Therefore, our regulations “could be found principally in judge-made rule of the common law. From corporate and property law to family law, judges performed the basic regulatory functions that might otherwise have been carried out by bureaucrats.” Yes, that it Cass Sunstein who loves regulation so much!

These common-law principles were developed by judicial precedents and applied in cases decided in the courts. Citizens could bring suits alleging torts, nuisances, and the like, which would be decided according to rules established by precedent. Courts, rather than agencies, developed many of the regulatory requirements of the state and local governments. Courts were preferable to administrators, in the Founders’ view, because of judicial adherence to the intentions of the law as opposed to administrators’ using the law as mere guidance for their own lawmaking.

The traditional judicial process made regulations both safe and accountable. The judicial process afforded legal protections to individual citizens, whereas an administrator could make a summary decision without the protections of due process. It also ensured predictability, since the common law was based on precedent and the basic norms of the community. Private citizens and juries were intimately involved in the exercise of judicial power at the local level, making the judicial process highly accountable.

3. Decentralize power to local elected officials. Many regulations were decentralized to the local level wherever possible. This had the effect of making regulation accountable, because local citizens knew who was performing the regulation and the one performing it had knowledge of the local conditions where they lived and regulated. As Tocqueville explained, in New England, “the greatest part of administrative powers is concentrated in the hands of a small number of individuals elected each year whom they name selectmen.” These selectmen were local citizens, known to the people of the town or township where they lived, and elected by their fellow citizens. This ensured that administration would not be done by some external authority unknown to the citizens and unaccountable to them.

Limiting the discretion of administrators, using courts instead of agencies to enforce the law, and decentralizing administrative power to local elected officials ensured that legitimate regulations were administered in a sound manner. Regulation would be defined as much as possible by legislatures, where the elected representatives of the people would make policy decisions. It would also follow the rule of law by involving the courts of law and would be local and accountable through decentralization.

The alternative to today’s all-encompassing bureaucracy is not to abolish regulation altogether, but to make regulation and administration compatible with individual rights and liberties. The task is not to abolish regulation but to reform it so that it fits with the core principles of the Constitution: separation of powers, republicanism, and federalism.

We do not have to abandon our cherished ideals simply because modern life is complex. Adhering to our principles will help us improve regulation from the unfortunate condition that it is in today.


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