The expanding power of federal regulators to dictate edicts from Washington would astonish the authors of our Constitution.
Regulators who re-interpret laws passed years ago in ways never intended by Congress threaten the checks on executive branch power that have served as the foundation for the rule of law.
If the Presidential appointees can transform the meaning of laws passed by Congress without the approval of Congress, the fundamental role of these elected representatives of the people is at risk.
No one is safe if the President and his or her appointees can unilaterally regulate any entrepreneur, investor, or an entire economic sector of existence.
The problem is even worse in a President’s second term, when that President will never have to face the voters again.
It is time to restore limits on executive branch power by putting into the Constitution a basic principle:
“Regulations, like laws should have the consent of the governed.”
Just as the idea “No Taxation Without Representation” rallied patriots who fought for American Independence, “No Regulation Without Representation” must be a rallying cry for those who believe that democracy, not bureaucracy is the essence of our American Republic.
Every Republican who cast a vote in the U.S. House of Representatives along with some courageous Democrats supported the REINS Act in 2015 to require the Congress approve major new federal regulations.
But it is unlikely that the REINS act could get 60 Senate votes necessary to overcome a filibuster even if a pro-limited government President were elected in 2016.
And even if enacted, a law could be repealed or waived by a future Congress and President. That is why permanent Constitutional reform is needed.
But, while Washington may be gridlocked, federal regulators become less popular the further one travels from the beltway.
Majorities of state legislators in 2/3 of the states almost certainly agree that federal regulators should be held accountable to elected officials.
And just as pressure from state legislators helped force Congress to propose the original Bill of Rights, similar pressure could force Congress to curb the authority of federal regulators.
In fact, three times in American history, pressure from states has helped force Congress to propose Amendments states wanted, starting with the Bill of Rights and including both the 17th Amendment for direct election of U.S. Senators and the 22nd Amendment for presidential term limits.
That helps explain why 15 State legislative chambers have already passed Resolutions urging that Congress propose the “Regulation Freedom Amendment” to the U.S. Constitution to require that major new federal regulations be approved by Congress.
Similar Resolutions, or letters from state legislators urging Congress to propose the Amendment are planned in more than 25 states, including Virginia, in 2016.
The text of the Amendment is as follows:
“Whenever one quarter of the Members of the U.S. House or the U.S. Senate transmit to the President their written declaration of opposition to a proposed federal regulation, it shall require a majority vote of the House and Senate to adopt that regulation.”
This Amendment would ensure that the most controversial and consequential regulations would be flagged for review by Congress and could not go into effect unless they were approved.
It has the support of more than 500 legislators, 3 Governors, the American Farm Bureau, and a growing number of business and grassroots political groups around the nation.
In Virginia support for the Amendment includes former Attorney General Ken Cuccinelli, Senators Dick Black and Charles Carrico, and House Majority Caucus Chair Tim Hugo.
Given that both houses of 31 state legislatures are now controlled by Republicans, and control is split with one House controlled by Republicans and one House by Democrats in 7 more states, making federal regulators more accountable to elected officials could become a significant issue between now and November 2016.
State legislators, Members of Congress, and Presidential candidates will be asked: Should federal regulators keep their power to dictate from Washington, or is it time to make them more accountable?
And as bipartisan support for the reining in federal regulators grows, in the form of Regulation Freedom Amendment Resolutions passed by state legislatures in some states,and letters signed by majorities of state legislators in other states, perhaps even federal regulators and those in the White House who appointed them will start paying attention. Increased support for this effort could very possibly deter some future regulatory abuse.
Growing attention for this effort could also give voters the ability to distinguish which candidates for President want to keep or expand the regulatory power this Administration has abused, and which candidates want to restore Constitutional checks and balances intended by the authors of our Constitution.
The deadlock in Washington can be broken. Leadership from the states, from state legislators, and from Members of Congress who want to partner with state leaders can be a key part of making it happen.
But ultimately, it is business, community, and grassroots leaders who raise these issues with their elected officials who will make the difference.
Roman Buhler is the Director of the Madison Coalition working to restore a balance of state and federal power. He was a Committee Counsel for the U.S. House of Representatives for 14 years and served as Newt Gingrich’s first House Committee Counsel.