Congress Must Take Power Back

Ironically, the problem of the “administrative state” has been a focus of conservative anger in the past, but it is Democrats that must be the ones to address it. Republican fearmongering of rabid progressivism in administrative agencies transforming the country has never materialized. Instead, it is Republicans and the Trump administration that has demonstrated clearly that the administrative state can, in fact, be abused.

The administrative state is no friend of the Democratic Party and liberals. Two recent developments are responsible for this new reality:

1. The power of the administrative state is only compatible with democracy when a president takes seriously his duty to “faithfully execute” the laws. The Trump Administration has lacked any good faith in interpreting congressional statutes and is hostile to congressional oversight. This, combined with a partisan and cowardly Congress, has allowed unacceptable abuses of the government that we cannot leave open to future Republican administrations. Recall for example, Congress’ cowardice to address Trump’s blatant abuse of tariffing authorities granted to him by Congress^[1].
2. The power of the administrative state is only compatible with democracy if it is an effective tool for both Democrats and Republicans. The Supreme Court, in Loper Bright v Raimondo^[2], has determined that the rule-making process at the heart of the current administrative state’s legal framework can be overturned by courts through the subtle art of statutory interpretation based on a judge’s personal political priorities. While this decision has not been used to significantly curtail the Trump Administration, it has the potential to derail any use of administrative law a Democratic administration attempts, making the framework of administrative law a partisan tool for conservatives.

We must flip around the statutory framework of Congressional approval from giving deference to a presidential administration unless Congress or the Courts rein a president in, to having it so that Congressional approval is required as a step to enable new governmental authority.

How administrative law previously implemented democracy while eroding congressional productivity

Complaints of Congressional inaction in recent decades from both the left and right have been a bit unfair.

The most significant cause for the slowdown in major legislation is simply that many significant legislative problems have been solved. Once you have created an Environmental Protections Agency, you do not need to recreate it. Every year our government takes steps to protect the environment without the need for a new law to be passed by Congress.

A second significant cause for a slowdown in legislative activity is the nature of Congressional oversight as enacted. Other than approving appointments and holding theatrical oversight hearings, there seems to be little activity in the Capitol. However, appearances can be deceiving.

We have a system of Congressional oversight where the mechanism for managing the administrative rule-making process is to overturn newly made regulations by the administration. For example, during the Biden Administration, the Congressional Review Act was used to undo Trump final rule that weakened fossil fuel emission standards^[3]. Most commonly, successful overturning of rules follows the changing of power in Washington. Any overturning of a regulation without a significant change in partisan power would be a completely avoidable mistake by an administration that should not happen, and it generally doesn’t.

Congressional oversight that does happen manifests through the consultation with Congress and secretaries of government agencies and leaves no formal votes to record their influence. More visibly, Congress members often submit comments on agency rule-making process^[4].

Still, while Congress has been far more productive shaping government policy than critics often claim, it is undeniable that there has been a sharp drop in productivity of Congress hosting informative hearings, facilitating honest debate, or passing legislation.

Reform of the Administrative Procedure Act

Administrative agencies generally have the most expertise in government on what rules are practical and in the public interest. For example, the Environmental Protection Agency has on staff experienced climate scientists and experienced bureaucrats that are intimately familiar with where current procedure is deficient in serving their mission of protecting the environment. However, we can no longer rely on good faith by our presidents or on the civic courage of Congress to make this system work as it is set up. Also, under a conservative Supreme Court, Democratic Party reform must have the unambiguous full support of Congress to survive legal challenges.

The reform needed is simple in principle, while devilishly complex in detail. Ironically, many of the ideas to modernize and reform the Administrative Procedure Act and provide a model for reclaiming lawmaking power to Congress may be inspired by past conservative thinking^[5].

A large reason for the current rule making process we have is the huge complexity of the federal government and the need for an administration’s bureaucratic capabilities that Congress would have difficulty matching. Strengthening Congress with more resources would be a welcome accompaniment to increasing their legislative workload for routine legislative reform. However, a compromise may be necessary.

At minimum, Congress must revoke many emergency authorities of the president. The conception of an emergency authorization of federal authority, besides those granted in the constitution such as being the Commander in Chief, are antiquated in a time of instantaneous communication in government. An emergency requiring immediate decision making can be addressed by the representatives of the people if it is genuine. What emergency authority cannot mean is that authority must be granted because it is too important an issue to be left to the representatives of the American people.

However, we should return Congress to bear the ultimate responsibility for government policy. While, in the past, we may have worried that the dysfunction of Congress, especially under a Republican Congress, would grind government action to a halt and cause harm, this is a consequence of democracy we must now embrace. While previously the dysfunction was primarily contained to congressional antics, with the Trump administration it has fully broken containment and is operating our government.

Conclusion

The public’s politics and the politicians that we see in public have complex interactions. But, the shift from Congress governing the country to being a circus arguably is a large contributor to our political crisis today in the Republican Party.

In past generations, good faith still existed behind closed doors and kept the government, largely, as a servant of the people. However, we can clearly see that today we have spent whatever institutional virtues still existed and that now our liberal democracy demands as much accountability of our representatives as we can generate.

In future threats to our liberty, we cannot afford for Republicans to be able to distance themselves from what they enable, and we must demand that for government to not break down, governing coalitions must come together in the open which represent a majority of the American people to take ownership of governing us.