Senator Mark Norris
9A Legislative Plaza,
Nashville, Tennessee 37243-0232
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By C. Boyden Gray And Mark Norris, Commercial Appeal
October 20, 2015
The growing power of federal bureaucrats to dictate regulatory edicts from Washington would be unrecognizable to the authors of our Constitution.
The ability of regulators to reinterpret laws passed years ago in ways never intended by Congress has become a serious threat to the checks on executive branch power that are the foundation for the rule of law.
If presidential appointees can fundamentally reinterpret laws passed by Congress without the approval of the legislative branch, the very 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 use their power to regulate any business or business sector out of existence, with virtually no accountability to elected officials.
The problem is especially acute in a president’s second term, when that president will not have to face voters again.
For these reasons, it’s time to restore limits on executive branch power with a basic principle: “Regulations, like laws, should have the consent of the governed.”
Just as “No Taxation Without Representation” was a rallying cry for those who fought for American independence, “No Regulation Without Representation” can be a rallying cry for those who believe democracy, not bureaucracy, is what makes our system of government the best the world has ever seen.
Nearly all Republicans in the U.S. House of Representatives and some courageous Democrats have in the past supported the so-called REINS Act to require that Congress approve major new federal regulations.
But it is very unlikely that REINS can get 60 votes in the Senate and even more unlikely that President Obama or a future president bent on expanding the regulatory authority of the White House would sign it.
However, while there may be a partisan deadlock in Washington, the farther one travels outside the Beltway, the more unpopular federal regulators become.
It may well be that majorities of state legislators in two-thirds of the states would agree with the principle that federal regulators ought to be accountable to elected officials.
And just as pressure from state legislators was critical in persuading 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 U.S. history, pressure from states has helped force Congress to propose amendments states wanted, starting with the Bill of Rights and including the 17th Amendment, for direct election of U.S. senators, and the 22nd Amendment, for presidential term limits.
That is one reason 15 state legislative chambers, including the Tennessee Senate, where there was bipartisan support, have 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.
This amendment would make federal regulators accountable, by ensuring that the most controversial and consequential regulations would have to be reviewed and approved by Congress before they could go into effect.
With both houses of 31 state legislatures now controlled by Republicans, and the legislatures of seven more divided with Democrats and Republicans each controlling one chamber, making federal regulators more accountable to elected officials could become a significant issue between now and November 2016.
More and more state legislators, as well as members of Congress, will have to take a stand: Should federal regulators keep their power to dictate from Washington, or is it time to make them more accountable?
And as bipartisan support for reining in federal regulators grows, perhaps even those federal regulators and their overseers in the White House will take notice. Perhaps the growth of support for this effort could even deter some excessive regulation — and perhaps as well some of the excessively broad delegations of authority that have enabled the regulators and for which Congress should be held accountable.
C. Boyden Gray was White House counsel to President George H.W. Bush. Sen. Mark Norris, R-Collierville, is Tennessee Senate majority leader.