Federal Regulations Make Executive Branch Supreme

by Chuck Donovan

Foreword by Chuck Donovan: Allen Buckley presents in his usual factual style, why we should guard against more Executive power and why Congress is not performing its constitutionally mandated oversight function.  The Declaration of Independence complained King George had erected, “…a multitude of new offices, and sent hither swarms of officers to harass our people…”  Despite the lessons of our history, our Congress still doesn’t get it.  They are repeating the same tyrannical mistakes.  If it sparked a revolution in 1776, why is it not seen as a damaging to Americans by our “leaders” today.

I have stated I do not support a line-item veto for the President.  Part of my reasoning is the need for less power in the hands of one person, the President.  The other part is my insistence we vote people into Congress who are leaders ready to take a principled stand.  That means putting responsible spending and oversight bills on the President’s desk, and doing the job each Representative and Senator swears to when they first step into office – Uphold and defend the Constitution.

Federal Regulations Make Executive Branch Supreme

By Allen Buckley October 7, 2010

It is often said there are three branches of the federal government that disperse power so that no branch is supreme.   However, the reality of the situation is federal agencies give the Executive Branch greater power than the legislative and judicial branches.

An article by Jeff Rosen and Susan Dudley titled “Costly Federal Regulations Escape Congressional Approval,” published in the September 2, 2010 edition of The Atlanta Journal-Constitution, provides:

  • “Every year more than 60 federal agencies issue thousands of new regulations covering every sector of the American economy.  The Small Business Administration estimates the cumulative costs of these regulations at more than $1 trillion annually, or more than $10,000 per household per year. “
  • “Regardless of whether these rules are good or bad, there is no question they involve very significant costs for our economy, possibly slowing the recovery and hindering job creation.”
  • “Congress had to vote to approve the nearly $13 billion used to fund the Department of Labor in 2009, for example, but did not vote with regard to any of the 10 major final rules issued by the Labor Department in the last year and a half. “
  • “Throughout our government, regulatory agencies cannot hire staff or spend money without approval from Congress, but they routinely issue regulations that impose huge costs on the economy without congressional approval.”

The article notes:  Mr. Rosen is the former general counsel and senior policy advisor at the White House Office of Management and Budget.  Ms. Dudley is a former administrator of the Office of Information and Regulatory Affairs at the White House Office of Management and Budget.

If the Republican Party takes control of one of the two houses of Congress in November, the Obama Administration will use federal agencies to push through its agenda.  The September 3, 2010 Kiplinger Letter notes:

  • “Keep your eyes on regulators, not lawmakers.”
  • “Rulemakers will be the real agents of change over the next two years of the Obama administration.”
  • “With the GOP poised for big election gains . . . including a good chance to win control of the House and get very close to parity in the Senate”
  • “Congress and Obama won’t agree on much.  Both parties will be digging in for the 2012 elections, making compromise even harder than it is today.”
  • “That gives more power to rulewriters.”
  • “And they are ready to use it, in spades.  Obama’s lieutenants will move in a host of areas to implement his priorities.  Congress can’t stop them and lobbyists will have influence only on the margins.”
  • “Business has a lot riding on the outcome.  The cost of all phases of compliance comes in a 2.6% of GDP today and will likely rise to 2.9% by 2015.”

Why do regulatory agencies have so much power?  To some degree, it is the fault of Congress.  In statutes, Congress often grants federal agencies the power to issue regulations to fill statutory gaps or define terms.  When that happens, regulations issued are “legislative” in nature, meaning they have the force-and-effect of law.  Only if the regulatory approval process has not been followed or the actions taken exceed the statutory grant of power can a challenge succeed.  Agencies also issue regulations when they have not been granted power to fill gaps, etc. by Congress.   These regulations are called “interpretive” regulations.

Often, it is unclear whether regulations issued are legislative or interpretive in nature.  In any event, unless they can pool their resources, people, companies and organizations ordinarily lack funding to fight.  Thus, often, both legislative and interpretive regulations effectively become law regardless of whether they are in fact within statutory bounds.   A way to prevent this result, other than a costly challenge, is for the Congress to specify in laws that agencies do not have the power to issue regulations with respect to a topic.  To date, to the knowledge of the author, that action has never been taken.

Many cases of regulatory abuse exist.  In the context of cafeteria plans, the “use-it-or-lose-it” rule, which has no statutory basis, permits taking of amounts set aside by employees for purchase of cafeteria plan benefits if not used within a specified period of time.  To date, to the author’s knowledge, no one has challenged the rule in court.

It is unclear why Congress has not acted to limit the power of agencies through specific language in laws enacted.  While Congress can always act to override an action of an agency, there often exists a period of time before Congress does so.  In the meantime, injustice can occur.