In many ways, the power of regulatory agencies is reaching unprecedented levels. The impasse often seen in partisan politics, paired with the vast emergency powers leveraged during Covid, has resulted in an increasing number of directives being issued by unelected anonymous agency personnel rather than our elected representatives.
Those who believe the premise that legislation is the sole domain of the legislative branch are poised for a harsh reality check. Perhaps it’s high time we revise “Schoolhouse Rock’s” “I’m Just a Bill” to the more truthful, albeit considerably less memorable, “I’m Just a Regulatory Mandate.”
If you look closely, however, a glimmer of hope is faintly shining through the cracks as the administrative state faces its most significant opposition in decades. Without a doubt, the administrative state is a formidable foe, and one should certainly temper his enthusiasm. Nevertheless, there is room for cautious optimism as a three-pronged attack, one from each branch of government, is emerging against the reign of bureaucratic supremacy.
Judicial Branch
The judicial branch shows the most promise, of course, as the Supreme Court has delivered serious blows with recent opinions — and is poised to significantly rein in Chevron deference.
Last year, in West Virginia v. EPA, the court rightly concluded what many common-sense observers have known for years, which is that federal agencies cannot simply grant to themselves any power they please simply because they claim to be pursuing valuable goals. While reasonable people can argue about the merits of various environmental laws, most Americans would hopefully agree it’s the job of Congress, not unelected officials in the Environmental Protection Agency, to decide whether the agency’s regulatory powers should be expanded.
The EPA took another hit in May when the court ruled in Sackett v. EPA that the agency could not unilaterally redefine the definition of navigable waters in a way that vastly increased its regulatory reach over millions more acres. To be clear, these were not battles on what is good environmental policy but rather on who gets to call the shots: the people’s representatives or unelected government bureaucrats.
Much of administrative overreach occurs under the legal doctrine known as “Chevron deference,” which references a 1984 Supreme Court decision that stipulates we defer to an administrative agency’s interpretation of the law. This opens the floodgates for officials to implement every liberty-infringing rule they can conjure up so long as Congress does not explicitly forbid it in law. Thankfully, this legal doctrine has been chipped away in recent years with many believing the court is primed to usher Chevron into the dustbin of history when it takes up Loper Bright Enterprises v. Raimondo in the next session.
Executive Branch
While the judicial branch is racking up wins, the executive branch proves to be the weakest of the three-pronged attack with no substantive action. Understandably, the home of the administrative state is unlikely to relinquish its power. Nevertheless, the rhetoric on the campaign trail is hopeful. Former President Trump, Florida Gov. Ron DeSantis, and political newcomer Vivek Ramaswamy have made dismantling the administrative state part of their platforms.
This may only be rhetoric, and we’ll see if any of them follow through if elected. Once in office, politicians find it challenging to relinquish power while keeping and fulfilling all of the promises they’ve made on the campaign trail.
Legislative Branch
Finally, there’s the legislative branch — which has been far too complicit in allowing the administrative state to expand without accountability. Congress willingly punts tough decisions that necessarily demand tradeoffs between competing goods, and allows unelected bureaucrats to decide those tradeoffs instead.
It’s the job of agency technicians to implement congressional laws governing forest protection, for example, or energy conservation. It’s the job of Congress, meanwhile, to represent the people when passing those laws, doing their best to balance, say, economic growth with environmental protection.
When Congress avoids making those decisions, it leaves it up to people nobody elected. That’s not how a republic is supposed to work, and it’s not what lawmakers were hired to do.
Thankfully, we are finally seeing lawmakers taking steps to regain their constitutional authority. The House recently passed the Regulations from the Executive in Need of Scrutiny Act, or the REINS Act. This would require congressional approval before implementing a regulation with “an annual effect on the economy of $100 million or more.”
Although the REINS Act is unlikely to pass the Senate or receive a signature from President Biden this year, this is the most sizable legislative movement against the administrative state in years.
Further, as is often the case with policy movements, state capitals contain even more optimism, with state lawmakers continuing to lead the way in fighting back against administrative rule. Florida and Wisconsin have passed state-level REINS Acts, with more states poised to follow suit.
The fight against the federal behemoth is far from over, but those who believe in the separation of powers have good reason to hope. The administrative state is losing ground in the courts, and momentum is gaining in the legislature.
Good news in politics is rare. Enjoy the victories, even the small ones.
Steve Johnson is the Center for Practical Federalism Fellow at State Policy Network.
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