“He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.” No, this doesn’t refer to President Clinton. With these words of the Declaration of Independence, the Continental Congress included regulatory tyranny among the many offenses of George III. They propelled us into a costly war intended to free us from this and other forms of tyranny.
Fast forward about two centuries. Americans are once again in need of relief from regulatory tyranny; this time from the coils of the EPA, OSHA, HUD, EEOC, BLM, and a hundred other acronymic agencies. Last November, we sent a wake-up call to our complacent Senators and Representatives. Now that we have their attention, what should we expect of them? What should we urge them to do about the growing regulatory tyranny?
To start, the House of Representatives recently passed a bill that would establish a temporary moratorium on new federal regulations. Faced with the threat of severe weakening in the Senate, and of a veto by President Clinton, the future of the moratorium is doubtful at best. Even if it were to surmount all of the obstacles in its path, the bill would affect only new regulations; and even those for only a short time. Not much relief in sight, I’d say. Even so, those who thrive on federal regulation are positively panicked about this bill. Perhaps they are afraid that once the American people wake up to the true power of their control over Congress, they will reject the whole regulatory structure. Here’s some food for thought concerning just that.
Let’s leave aside for the time being the fact that most of the objects of federal regulation are outside the scope of activities authorized by the Constitution. A more urgent problem today is the way regulatory agencies are set up. Congress grants legislative, executive, and judicial power to each regulatory agency over its area of interest. The agency uses its legislative power to make whatever regulations it deems appropriate. It uses its executive power to administer the regulations: investigating, prosecuting, and in general attacking those it suspects of violating the regulations. It uses its judicial power to judge each case of alleged violation of regulations. The officials who wield this latter power are actually called “administrative law judges,” showing that the agencies recognize the power to be a judicial one.
The executive power of the regulatory agencies is legitimately derived: they are part of the executive branch of government. This does not excuse their rampant abuse of that power, but at least the lodging of executive power in them is legitimate. The same cannot be said for either the legislative or the judicial powers. Article I, Section 1 of the Constitution decrees that “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Later, in Article III, Section 1, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Neither legislative nor judicial power is to be placed in the executive branch.
This “separation of powers” among the three branches of government was a deliberate attempt by the Founders to withhold from the hands of any one person or group the full gamut of federal powers. The principle is discussed at length in The Federalist Papers and in other writings of the authors of the Constitution. James Madison, for example, in Federalist Paper No. 47, states that “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
These wise words of Madison certainly apply to our situation today, and call for reforms to stamp out the growing tyranny. If we are to have regulatory agencies, their responsibilities should be strictly administrative, as befits executive branch offices. Any regulations should be made by Congress and called laws, not regulations. Any resulting judicial activity should occur in the courts of the judicial branch, not in special executive branch kangaroo courts. Let’s urge our Representatives and Senators to rethink the whole idea of federal regulatory agencies.