A Plan to Renew the Promise of American Life, Plank 11
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Plank 11. Make independent agencies accountable
Specific Recommendations
11.1. Amend the organic statutes of all executive-branch agencies, including so-called independent agencies, to bring their missions and powers into strict conformity with the Constitution.
11.2. Make all ‘heads of departments,’ that is, all politically appointed leaders of executive-branch agencies, including the chairmen and members of all boards and commissions, ultimately answerable to the president and removable by him at any time without cause.
11.3. Amend the Constitution to provide that a majority of the state legislatures may repeal any federal law or regulation except a state admission act.
Comments
This plank has two purposes. The first is to rein in regulatory excess by making so-called independent agencies accountable to the representative branches of government. The second is to curb federal excess by enabling the states to serve as an effective check on Washington, that is, to make federal bureaucrats accountable to the elected branches, and the elected branches accountable to the states, so government remains accountable to the people. /1
The past century has witnessed the rise of a leviathan regulatory state, of ‘scientific’ bureaucrats robed in ‘expertise’ and armed with sweeping powers and largely unchecked by any other actor in our system. This administrative state has become a power unto itself, a special interest feeding off and manipulating and living in symbiosis with all the other special interests.
Driving this development have been two main factors: first, the desire of political centralizers of various stripes to ‘insulate administration from politics’ and, second, the desire of elected officials to escape accountability, through delegation of lawmaking power to ‘independent’ agencies.
In this convenient arrangement, politicians eat their cake and have it — they pass a bill to do some worthy-sounding thing like clean up the air and then shift the blame for any downsides to the regulators who actually make the law.
As for the regulators, whom no one really controls — well, that’s the whole point.
Insulated from political control, agencies tend to exceed their mandates, pursue special-interest agendas, and become captured by the industries they regulate. Motivated by their own agendas, they find subtle ways to discover ‘crises’ and fudge statistics, to justify their existence, to increase their budgets and expand their powers.
Agencies tend to proliferate because when government is essentially unlimited, there is no end of new ‘problems’ to be ‘solved’ by government. And to a politician with a bureaucratic hammer, every problem looks like a nail.
If our alphabet soup of regulatory agencies were more accountable and more subject to political control, it would be less likely to misregulate, prevaricate, and proliferate.
How do we make it more accountable? By enforcing the constitutional principles of nondelegation and separation of powers.
Nondelegation. Under the Constitution, only Congress is vested with lawmaking power. Therefore, Congress may not delegate its lawmaking power to other branches or agencies (or, for that matter, to private entities). /2
Separation of powers. Under the Constitution, there are only three branches. An ‘independent’ agency, shielded from scrutiny or challenge by those three branches, amounts to a headless fourth branch. Therefore, Congress may not establish an ‘independent’ agency. /3
‘Independent’ agencies must be housed under and answerable to at least one of the three branches and subject to appropriate scrutiny and challenge by all of them.
Article II vests the executive power of the United States in the president, singular. This means that every officer of the United States exercising any part of the executive power must serve at the pleasure of the president, and must be removable by him at will. Otherwise, the executive power would be vested in more than one person. We would have a plural executive.
It’s true that the appointment of an executive officer, in many cases, requires the advice and consent of the Senate. And that’s good. But the power to remove an officer is vested in the president alone.
And it’s true that Congress may remove the president and federal judges through impeachment, but subordinate officers may only be removed by the person or persons at the top of their respective branch. There are really no exceptions to this rule. I suppose Congress could try to remove them by passing a bill, but the president could veto the bill.
Congress has tried from time to time to shield some federal officers from removal through statutory protection. But that’s unconstitutional.
To be clear, the removal power extends only to ‘heads of departments,’ meaning agency leaders. There’s nothing untoward about having civil service protections for rank-and-file employees, provided those employees are fireable for incompetence and insubordination.
So far, we’ve been focusing on the separation of powers. What about federalism? To restore it, we need something more than just better laws. We need something structural, a ‘federalism veto,’ if you will, a tool that not only makes it easier to police the boundaries between Uncle Sam and the states but also makes it more likely that that boundary will be policed.
Someone besides Congress should have the power to repeal federal laws and regulations. That someone should be the states.
To be effective, a check must be independent of the power it checks. Therefore, a check on federal power must be independent of the federal government. Congress is part of the federal government. (Ditto, of course, the executive and judicial branches.)
And since the whole people is unsuited to check federal power in real time because government by plebiscite is impractical and prone to produce extreme policy swings, that leaves the states.
The states are the only actors in our system that can realistically be relied on to defend federalism in real time.
My proposed federalism veto would require a constitutional amendment along the following lines:
A majority of the state legislatures may repeal any federal law or regulation
This idea is not original to me. I believe it is the brainchild of Professor Randy Barnett. In his proposal, three-fifths of the states could exercise the veto. I would lower that threshold to a simple majority.
The one kind of federal law that should not be repealable in this way is a state admission act — a law that admits a state to the Union. A state should not be expellable from the Union without its consent.
Would this power be used frequently? No. It is hard to get half the states to agree on anything. Only truly important questions would rise to that level.
But the mere existence of the power would induce healthy caution. Federal policymakers would be reluctant to go too far. And if the states ever did go too far, Congress could re-pass the law in question, perhaps with a modest change, and dare them to repeal it again.
Federal and state authorities would negotiate. And through a process of push and pull, their respective jurisdictions would return, gradually, to their original, proper boundaries and scope. /4
The veto would be of the ‘line item’ variety. States could remove any part of a federal law or regulation surgically, even a single word. Otherwise, the Beltway could effectively thwart the veto through bundling — political hostage-taking.
A federalism veto should not be confused with a separation-of-powers veto. An example of the latter would be a law that requires congressional consent to a regulation before it can take effect. /5
Another example would be a law that creates an expedited congressional procedure for nullifying an existing rule. /6
While a separation-of-powers veto looks appealing on paper, it appears less appealing when we realize that Congress already has the power to block or overrule regulations. It can just pass a law.
Importantly, a mere separation-of-powers veto would not change politicians’ incentive to have it both ways. It would give them another device for signaling virtue whenever they are shocked — shocked! — to find regulatory overreach going on. Congress could nullify a dozen regulations a week without changing anything important with respect to federalism or the separation of powers.
We don’t need a separation-of-powers veto. We need a federalism veto.
The careful reader will notice that I do not propose giving the states the power to repeal federal judicial decisions. We need to end judicial usurpation, to be sure, but because of the judiciary’s unique role in our system, we need to do it in a way that is prudent and carefully tailored.
Notes
1/ Examples of ‘independent’ agencies include: the Federal Trade Commission, the Federal Election Commission, the Environmental Protection Agency, and the Federal Reserve Board of Governors.
2/ Another device used to render an agency ‘independent’ is to give it a separate, freestanding funding source that amounts to a permanent appropriation. For example, the Consumer Financial Protection Bureau (CFPB) gets its funding from the Federal Reserve, of all places. Update June 2024: The Supreme Court says this arrangement is fine, but that can’t be right. So long as we’re not following the Constitution’s seven money clauses, the Fed can print money out of thin air, without a congressional appropriation. Money arbitrarily printed by a quasi private bank is obviously not ‘money drawn from the Treasury.’
3/ In 2010, Congress went even further, statutorily prohibiting any of the three branches from reviewing the decisions the Independent Payment Advisory Board (IPAB), an entity created to make regular, across-the-board cuts to Medicare provider reimbursements that Congress did not want to vote on. [Update 2018: Thankfully, no one was ever appointed to IPAB, and in early 2018 Congress removed it from the statute-book. Phew! But while IPAB existed (on paper), its decisions could not be reviewed, halted, or reversed by anyone. Is there a better definition of despotism?]
4 Among the first federal statutes I would like to see repealed in this way are those falling within my own professional area of expertise, namely, health care financing, specifically: the HMO Act (1973), ERISA (1974), COBRA (1985), EMTALA (1986), HIPAA (1996), and much of PPACA (2010). Together, these statutes establish a broad federal power to regulate and subsidize health insurance — matters the Constitution leaves to the states.
5/ For example, the so-called REINS Act would require explicit congressional approval of all proposed regulations that qualify as ‘major’ in terms of the burdens they are expected to impose on the economy. Another example: a constitutional amendment (dubbed in one version the ‘Madison Amendment’) that would enable some minority of each house of Congress, say, one-fourth of the members, to force a vote on any proposed regulation, which, absent a majority vote to approve it, would not be allowed to take effect.
6/ An existing law, the Congressional Review Act, takes the post hoc approach, streamlining Congress’s existing power to nullify a regulation that is already on the books. The CRA has proved useful only in stopping a small number of rules, on matters lawmakers care about, and only during the brief period after the White House has changed hands when the incoming and outgoing presidents are of different political parties. That’s nice, but for restoring federalism or the separation of powers, it’s small beer.
Constitutional Amendments
This plank recommends one constitutional amendment that would allow any federal law or regulation to be repealed by a majority of the state legislatures. This ‘federalism veto’ would not extend to federal judicial decisions, which are addressed separately in the judicial reform plank.
Benefits
Increases the power of the American people over their own government while reducing the sway of unelected federal bureaucrats over our lives.
Revised 14 June 2024
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