The Bureaucracy Is Now More Powerful Than Congress

Who creates federal laws? Civics books say it is Congress, but the real answer today may be the executive branch. Earlier this year, James Gattuso and Diane Katz reported that just the 229 major regulations issued since 2009 added over $100 billion in annual costs (according to the regulatory agencies), $22 billion coming in 2015. With estimates of the total regulatory costs now exceeding income tax burdens at over $2 trillion annually, regulations were far more burdensome for many Americans than legislation.

Unfortunately, missing from this process is accountability to citizens. In response, some members of Congress have turned to supporting the "Regulations from the Executive in Need of Scrutiny" (REINS) Act, which would require Congress to approve major regulations before they could take effect.

Why is this necessary when the US Constitution specifically assigns all legislative powers to Congress? Because Congress has increasingly abdicated its lawmaking responsibility, delegating its power through vague laws and mandates to executive agencies, which then impose and enforce the actual regulations that legally bind Americans.

The REINS Act, by allowing major regulations to take effect only if passed by Congress, would end the effective delegation of legislative power to regulatory bureaucrats and restore some of the Constitution’s eroded separation of powers. It would offer some real political accountability, by moving us back toward Americans’ earlier understanding of legislative powers, gutted in U.S. v. Grimand (1911) and subsequent court rulings.

Before Grimand, Congress had already begun giving administrative agencies power to formulate specific rules to implement Congress’ general policy objectives. But in Grimand, the Supreme Court gave such administrative rulings the full force of law, with delegation mushrooming since.

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