The Congressional Oversight Act

This post was written by Edward Mahee. Writing under a pen name, Mr. Mahee is a legal analyst and political commentator. This is his eleventh posting for the site.

Article I, Section 1 of the Constitution reads, “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”  Article I, Section 7 of the Constitution lays out the process by which such legislative power is properly exercised by Congress.  Over time, however, Congress has abrogated this authority to make laws and given it to a number of federal agencies.  Initially created to administer federal programs or provide oversight, these agencies have quickly evolved into powerful law and policy makers.  The Securities and Exchange Commission, Federal Trade Commission, Environmental Protection Agency, Internal Revenue Service, and the Treasury Department are just a few examples of the vast bureaucracy that now runs the federal government, and their rule making has become as important as the laws crafted by elected representatives.

As a result of this framework, Americans have been bombarded with a barrage of agency laws and regulations, each a creeping infringement not just of individual liberty, but of democracy itself.  Frequently, we hear of an agency, sometimes famous, sometimes faceless, making rules which affect everything from the food we eat and the cars we drive, to how our children are educated. And yet, no citizen has ever cast a vote for a bureaucrat.

How is it, in a country that is supposed to be free and self-governing, that the representative legislature has abandoned its responsibility to govern?  More poignantly, how have bureaucrats, who are isolated from elections and unaccountable to voters, been given the power to regulate nearly every aspect of our lives? The Environmental Protection Agency plans to regulate Carbon Dioxide as a pollutant (meaning that every time you exhale you’re polluting) and the Federal Communication Commission plans to regulate the Internet in the name of “fairness” (as determined by a bureaucrat or judge). How were the underpinnings of democracy—representation and accountability—swept away so easily?

Simply put, because many have embraced the faulty progressive message that experts and administrators are better equipped to run society than are a free people. That thinking has brought untold destruction over the years, both to efficiency and liberty, a terrible catalogue of the price paid when freedom is sacrificed at the altar of statist hubris. America was founded as a Republic, a representative democracy established to reflect, and defend the will of its people. Agency rule pulls far from the founding by allowing the elite few to govern the whole.

The solution to this problem seems distant—federal bureaucracies are so entrenched that curtailing their power appears impossible.  But there is a way Congress can work to reestablish its rightful place as the only law-making body in the federal system.  It would not require the abolition of any agency, or any immediate dismantlement of the system. Rather, Congress could simply pass a law—call it the Congressional Oversight Act—which would state that no rule, regulation, or order of an administrative agency shall have the force of law unless it has been approved by an act of Congress.  Moreover, the Congressional Oversight Act would prohibit Congress from approving agency rules in bulk, or omnibus resolutions.  Thus, the Congressional Oversight Act would compel Congress to consider each rule, regulation, or order on its own merits. 

The obvious retort is that it would be impossible for Congress to consider each agency rule or regulation; it would take too much time.  But that is precisely the point.  Congress would only consider substantive regulations, and those that were not substantive would not become law.  This would serve three functions: First, it would enable Congress to reassert its Constitutional role as the sole lawmaker, and compel its members to be true legislators (as opposed to mere delegators of authority); Second, administrative agencies would have to be selective in their rulemaking, proposing only substantive regulations that would stand up to public scrutiny and accountability; and Third, the Congressional Oversight Act would allow for a clear accounting of each agency.  That is, if agencies themselves are not proven totally ineffective, wasteful, and bureaucratic.

Overall, this plan would reduce the power of unaccountable bureaucrats over the lives of the citizenry. And as their power diminishes, our freedom will increase.  And, in the “land of the free” that is ultimately the point.

-Edward Mahee for TruPolitics.net