A Plan to Renew the Promise of American Life, Plank 11
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 its true source and sovereign, the people.
The Rise of Leviathan
The past century has witnessed the rise of the Leviathan regulatory state, of scientific bureaucrats 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’ bureaucracies, and 2) the desire of elected officials to escape accountability for their own choices by delegating their law-making powers to ‘independent,’ ‘nonpartisan’ bureaucrats. Politicians can eat their cake and have it—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—and that is 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 should it shield an agency’s decisions from scrutiny or challenge by the president or federal courts. /3
Separation of Powers
There are three and only three branches. To the extent an agency acts independently of all three, it constitutes a headless fourth branch and thus acts without authority. Lacking accountability, it faces enormous pressures to go rogue.
Independent agencies must be answerable to one of the three branches. That’s another way of saying their leaders must be answerable to and removable by that branch, except, of course, where the Constitution directs otherwise. 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. To be answerable to the president, executive-branch employees of every rank must be removable by the president. Likewise, legislative-branch employees must be removable by the legislative branch, and judicial employees by the judicial branch. Congress in numerous cases has tried to shield employees from removal by statute, but that’s unconstitutional.
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.
Solution 1: Plenary Removal Power
To restore the proper constitutional accountability of independent agencies, then, we must amend their organic statutes to ensure that their politically appointed leaders are ultimately answerable to the president and removable by him at any time without cause. 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, without exception.
Solution 2: A Federalism Veto
But what about those cases where all three federal branches fail to do their job, enabling an agency to run wild? In such cases, a mere legislative fix isn’t enough. For those cases, we need what I call a ‘federalism veto’—a tool by which states can check and deter federal excesses and errors.
Before we go further, I should mention that 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 I assume the advocates of this idea are well-motivated, I’m frankly underwhelmed by it. It’s too clever and too selective. It would give Congress the luxury of exercising a selective check on executive-branch lawmaking when what’s needed is a complete and effective one.
To cure the diseases of congressional shirking and executive usurpation, we need, not just a congressional or separation-of-powers veto, but a true federalism veto.
To be effective, a check must be independent of the power it checks. A check on federal power must be independent of the federal government.
In our system, there are only two authorities external to the federal government: the people and the states.
It is unwise for the people to exercise a direct veto. National popular plebiscites are both unwieldy and dangerous, as states can attest that have experimented with such ‘populist’ tools as ‘initiative, referendum, and recall.’
That leaves the states as the only safe place to repose the veto.
Therefore, to save federalism, we must give the states a veto over errant federal laws and regulations. I believe this idea was first proposed by Professor Randy Barnett. In his proposal, 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. Happily, only truly controversial questions would rise to the level of prompting a majority of states to act.
But the mere existence of the power would induce a healthy caution within the national councils. The Beltway would grow reluctant to go too far. And should Congress ever sincerely believe the states have gone too far, it can simply re-pass the law in question, perhaps with a tweak or two, and dare the states to repeal it again.
The logical result is obvious: federal and state authorities would negotiate. Their respective jurisdictions would gradually return to their original scope. /5
Importantly, the federalism veto I’m describing would be of the ‘line item’ variety. It would allow the states to eliminate any part of a federal law or regulation and not just the whole thing. Otherwise, the Beltway could effectively thwart the veto by bundling multiple laws into one ‘act,’ or multiple regulations into one ‘rule’—and thus take hostages.
The reader will notice that I do not propose giving the states the power to repeal federal judicial decisions. We certainly need to end judicial usurpation. But there are more prudent ways to do it, and these we discuss in the judicial reform plank.
1/ Examples of ‘independent’ agencies include: the Federal Trade Commission, the Federal Election Commission, the Federal Communications Commission, the Securities and Exchange Commission, the Consumer Product Safety Commission, the Environmental Protection Agency, and the Federal Reserve Board of Governors.
2/ Another device Congress has come up with, to render an agency ‘independent,’ is to create a separate, freestanding funding source for the agency that amounts to a permanent appropriation, which effectively shields the agency from control via the regular appropriations process. This device was used in the 2010 statute that established the Consumer Financial Protection Bureau (CFPB).
3/ In 2010, Congress went even further, statutorily prohibiting any of the three branches of the federal government from reviewing the decisions of a powerful new Medicare-spending-reduction entity dubbed the Independent Payment Advisory Board (IPAB). Thankfully, no one was ever appointed to IPAB and in early 2018, Congress repealed it. While IPAB existed, on paper its decisions could not be reviewed, halted, or reversed by anyone. The only way to render them constitutional is to amend or repeal their organic statutes.
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.
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 left entirely to the states under the Constitution.
This plank recommends one constitutional amendment that would allow any federal law or regulation to be repealed by a majority of the state legislatures.
Will increase 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.