Over the last century, we have seen an exponential growth of the federal bureaucracy.
As a practical matter, federal agencies—not Congress—have assumed the primary role in making the policies that affect our lives. Governing by regulation reached unprecedented levels under the Obama administration.
In his first 100 days, President Donald Trump has taken great strides to return our government to the people by reducing how much actual governing occurs by regulation.
For instance, within days of taking office, Trump issued an ambitious executive order that requires federal agencies to identify two old regulations to eliminate for every new regulation proposed and to ensure that the net costs of new regulations are offset by the elimination of old ones.
Trump has also nominated a number of exceptionally qualified agency heads who share a vision of less government by regulation, including, most recently, the inspired choice of Neomi Rao as his “regulatory czar” at the Office of Information and Regulatory Affairs.
I will be pleased this week to introduce Rao before the Homeland Security and Governmental Affairs Committee for her confirmation hearing. She is a distinguished scholar, with extensive experience in administrative policy.
Her confirmation will assure that federal regulation is carefully scrutinized and improved before imposing additional costs on American job creators and consumers.
But Congress, too, must act.
Governing by regulation is costly. By some estimates, federal regulations now impose a burden of well over $1 trillion annually on our economy—an amount that would equal more than $15,000 per household per year.
But the costs to core democratic values are greater still. A bureaucratic vision of governance threatens the separation of powers enshrined in our Constitution.
As James Madison explained in Federalist 47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.”
Lawmaking by regulation consolidates governmental powers in the hands of unelected bureaucrats. It’s time to rein in the federal bureaucracy and make it more accountable.
That’s why last month I joined Sens. Rob Portman, R-Ohio; Heidi Heitkamp, D-N.D.; and Joe Manchin, D-W.Va., in taking an important step forward by introducing the Regulatory Accountability Act of 2017.
This bipartisan legislation, if enacted, would constitute the most significant reform to the federal bureaucracy in over seven decades. It would modernize the regulatory process to make it smarter, more cost-effective, and more democratically accountable.
And it would do so without undermining the ability of agencies to fully protect public health, safety, and the environment.
For instance, the Regulatory Accountability Act would codify the requirements developed and embraced by our last five presidents that federal agencies must analyze the costs and benefits of new regulations—using the best data and science—and generally adopt the most cost-effective approach.
Similarly, it would require agencies to review old regulations to determine whether they still serve their intended purpose, and it would allow the public to petition for old regulations to be withdrawn or otherwise modified.
To address the democratic deficits in the regulatory process, the Regulatory Accountability Act would also ensure greater transparency and public participation in the rulemaking process. It would require agencies to disclose the empirical data on which they base their proposed regulations for public comment, as well as provide greater notice before rulemaking.
It would likewise limit an agency’s ability to bypass the public comment period—a dangerous practice federal agencies have increasingly embraced in recent years.
For the most economically significant regulations, the bill would require agencies to invite public comment before proposing the rule and, in some circumstances, would allow interested parties to request a public hearing on the proposed rule.
While agencies would have to engage in additional analysis on the front end for some rules, the extra work will yield better results on the back end. That means smarter and more effective regulation for the public good.
Importantly, the Regulatory Accountability Act would give federal courts greater authority to review final regulations and, in particular, to ensure that the federal agency officials followed these procedures.
It would also help restore the proper separation of powers between the branches of government by eliminating so-called “Auer” deference, whereby courts largely defer to agencies’ interpretations of their own regulations.
As I have argued, this doctrine displaces the judiciary’s constitutional role and encourages federal agencies to use less democratically accountable processes.
Some might wonder why Republicans in this Congress would push for regulatory reform. After all, the American people have elected a Republican president who has articulated a bold vision for cutting back on the most costly aspects of the regulatory state. This legislation would apply to all regulatory activity—both further regulation and deregulation.
We continue to push for regulatory reform because this isn’t about politics. The Constitution requires a proper separation of powers between the three branches of the federal government. It requires lawmaking that is accountable to the people.
The bipartisan Regulatory Accountability Act is critical to restoring those constitutional values and, in the process, encouraging smarter and more effective federal regulations.