A Plan to Renew the Promise of American Life, Plank 11
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Plank 11. Make independent agencies accountable
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 states may repeal any federal law or regulation.
This plank has two purposes. First, to rein in regulatory excess by making so-called independent agencies accountable to the representative branches of government. And second, to curb legislative excess by enabling the states to serve as an effective check on Washington. /1
Or to put it another way, the purpose of this plank to make bureaucrats accountable to the elected branches, and the elected branches accountable to the states, so that government may once again become accountable to the people.
The Rise of Leviathan
The past century has witnessed the rise of the Leviathan regulatory state, of ‘scientific’ bureaucrats robed in ‘expertise’ and armed with sweeping powers and largely unchecked by any other actor in our system. Driving this development has been two main factors: 1) the desire of political centralizers of many stripes to ‘insulate administration from politics’ and thereby shift power from the people to ‘scientific’ bureaucracy and 2) the desire of elected officials to escape accountability for their own choices by delegating their law-making powers to ‘independent,’ ‘nonpartisan’ bureaucrats. In this 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, no one really controls them — by design.
Insulated from oversight, unaccountable agencies tend to exceed their mandates and pursue special-interest agendas. They become captured by the industries they regulate. Accountable agencies are much more likely to resist those temptations, keep within reasonable bounds, and respect the popular will.
The best way to keep government agencies accountable is to strictly enforce two essential constitutional principles: non-delegation and separation of powers.
Under the Constitution, Congress makes the laws, the President executes the laws, and the Courts apply the laws in particular cases and controversies.
Only Congress may make the laws. Congress may not delegate its lawmaking power to other branches or agencies. /2
Nor may Congress rightly shield an agency’s decisions from scrutiny or challenge by the president or federal courts. /3
Separation of Powers
There are three branches, and only three. To the extent an agency acts independently of all three, it constitutes a headless fourth branch and thus acts without authority.
The language of Article II vesting the executive power of the United States in the President requires that every officer of the United States exercising any part of that power must serve at the pleasure of the President and be removable by him at will.
Independent agencies must be answerable to one of the three branches. In other words, they must not be independent.
The Constitution declares that the president and federal judges may only be removed by Congress, via impeachment. All other federal employees may, in principle, be removed by the person or persons at the top of their respective branch. There are no exceptions to this rule. Congress in numerous cases has tried to shield employees from removal by statute, but that’s unconstitutional.
Solution 1: Plenary Removal Power
To restore the proper constitutional accountability of independent agencies, then, we must amend their organic statutes to ensure their leaders’ removability. This accountability must extend to the chief of every agency, and to the chairman and members of every board and commission, that shares in the executive power of the United States.
Solution 2: A Federalism Veto
The first two recommendations of this plank are intended to reinforce the separation of powers. The third is intended to reinforce federalism.
To keep the federal government in check, I propose a ‘federalism veto’ — a tool by which states can check and deter federal excesses and errors.
Some advocates of regulatory reform propose what I will call a ‘congressional veto’ over major proposed regulations — a ‘separation-of-powers veto,’ if you will. The idea is that Congress should be able to nix bad regulations before they take effect, and thus keep the worst excesses of the executive agencies in check. /4
While advocates of this idea mean well, I’m underwhelmed by it. It places too much trust in Congress. We need, not just a separation-of-powers veto, but a true federalism veto.
A check, to be effective, must be independent of the power it checks. A check on federal power must be independent of the federal government.
Of the two powers that meet that description, the People and the States, the first is unsuited (government by plebiscite is a bad idea), so that leaves the second.
We must therefore give the states a ‘federalism veto’ — a veto over errant federal laws and regulations. This idea is not original to me. I believe it was first proposed by Professor Randy Barnett. In his version, three-fifths of the states could exercise the veto. I would lower that threshold to a simple majority.
To be valid, the state resolutions would need to be substantially identical and cite a specific provision or provisions of law to be repealed. When the ‘majority-plus-one’ state (e.g., the 26th state out of 50) passes a valid resolution, the provision immediately becomes null and void.
This power would not be used very often. It is hard to get half the states to agree on anything. Only truly controversial questions would rise to the level of prompting a majority of states to seek a repeal.
But the mere existence of the power would induce a healthy caution in Washington. Federal officials would be reluctant to go too far. And should they ever feel that it is the states who have gone too far, Congress can simply re-pass the law in question, perhaps with a tweak or two, and dare the states to repeal it again.
The result is easy to predict: federal and state authorities will negotiate. And as a result, their respective jurisdictions will gradually return to their original scope. /5
Importantly, the federalism veto I’m describing would be of the ‘line item’ variety. States could surgically remove any part of a federal law or regulation. Otherwise, the Beltway could effectively thwart the veto by bundling multiple laws into one big omnibus or multiple regulations into one big rule — and thus, in effect, take political hostages.
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, but there are more prudent ways to do it.
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. This device, for example, funds the Consumer Financial Protection Bureau (CFPB).
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 that Congress did not want to vote on. Thankfully, no one was ever appointed to IPAB and in early 2018 Congress removed it from the statute-book. But while IPAB existed on paper, its decisions could not be reviewed, halted, or reversed by anyone.
4/ 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, if voted down, would not be allowed to take effect. These proposals place too much trust in Congress.
5/ Among the first federal statutes I would like to see repealed in this way are: the HMO Act (1973), ERISA (1974), COBRA (1985), EMTALA (1986), HIPAA (1996), and title 1 of PPACA (2010). Together, these statutes establish a broad federal power to regulate and subsidize health insurance — matters that the Constitution leaves to the states.
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.
Increases the power of the American people over their own government while reducing the sway of unelected federal bureaucrats over our lives.
Revised: March 29, 2019.
First published: June 21, 2013.
Author: Dean Clancy.
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