This subject actually came up on the other site, but I decided I'd start the discussion here because...well, because we have better discussions here. Article I, Section 1 of the Constitution says:



Why, then, is it that all manner of executive agencies from the FDA to the EPA to the IRS can make regulations that are given the full force of law even though they were not created by - and often not even approved by - congress? Yes, those agencies were created by congress in the first place, but it could be argued that congress cannot permanently delegate to another body its constitutionally granted sole right to make laws for the nation. The executive branch is supposed to enact and enforce laws, which naturally involves a certain degree of interpretation, but it cannot make laws. Sure, congress can always overrule this kind of pseudo-legislation with actual constitutionally valid legislation, but that's a difficult process which should not even be necessary.

Obviously, this is not the popular view. Am I crazy for seeing it this way, though? Am I crazy to think that allowing a hundred groups instead of just one to make law might be a contributing factor in the ridiculous and costly complexity of our legal system? Am I crazy to think that forcing Congress to write - or at least approve - all laws before people are fined or arrested under them might be a good thing?

No, you're not crazy. I think maybe we agree on this one.

You are not at all crazy. I agree with you. Congress has, for whatever reason, decided to lend some its power to the executive branch. Did Congress pass a bill saying that radio stations that play Eminem songs should be fined? No. Did the FCC fine stations for doing so under threat of closing them down? Yes. What's worse is that the law enforcement community doesn't see this which has the ultimate result of backing executive agencies with the full force of the law. This is not their job. Executive agencies cannot make law. They make regulations which, at most should only be a mere suggested guideline to follow. Constitutionally speaking, no individual is subject to the whim of the DEA, FCC, FAA, EPA, etc., unless, of course, their whims are passed as law by the Congress and signed by the President. But as we all know, it doesn't work that way.

Platypus,
This is like the greatest apostasy...no, not your topic but the fact that we agree. I can only speculate that it always is and has been an attempt to trample states (peoples) rights in accordance with what I jokingly call "The Lincoln Agenda". One more way government gets bigger and keeps taking away. The next thread should be: what can we do to put an end to this control they illegally "lord over us like a wild bull"?

Kudos Platypus....excellent thread.

I agree, this is an excellent thread and there are alot of ways we could go with it. I also agree that our nation is way over-regulated by bascially unelected bureaucracts and that is a bad thing. As to whether or not it is legal in the strict sense or not - well, that is a much more difficult issue I think. Somewhere, somehow, each agency in the federal government was created under the umbrella of legislation passed by Congress, but the nexus of that might be rather difficult to trace. When Congress created the Department of Homeland Security, for example, they also defined a charter for that new department, spelling out it's responsibilities and authority among other things. That basic charter would be the legal authority for the Department to act, create new agencies and make regulations. The only way to change it would be for Congress to step in and modify the charter. That's why they have oversight responsibility.

Yep, interesting topic.

So if you don't like any of the Congretionally-created departments, wouldn't it be appropriate to lobby Congress to dump them?

It seems a bit vague to just go after all departments. I also don't think there's much of a case to strictly interpret the Constitution where all rules/regs/levying of fines and other enforcement actions has to go through Congress. If Congress had to do all the things the FCC and DOE do, nothing would get done. So, the broad laws are passed and the departments created to carry out the grunt work.

Fundamentally speaking, I see the efficiency (not trying to be sarcastic here) of this.

We do, of course, end up with a bigger, more powerful federal government. Just how this government is handled heads back toward Congress and the Executive.

So election season is coming up. Hint, hint.

I'm not talking about dumping an entire departments, but certainly Congress should take it's oversight responsibility seriously, and I'm not sure if they have done that through the years. I personally think they have ceded way too much authority to the bureaucracy whose very existance is, after all, dependant on them doing something. So, they write regulations, and more regulations because that is what they do and what justifies their existance. I think it might be a very good thing for Congress to create some sort of "Regulatory review Committee" to go back and start reviewing all of the regulations that have been spawned by the executive branch, an enormous task to be sure, but a necessary one.

Aquilla,

You bring up a very good observation: What is the check/balance on regulatory agencies?

Can we point to the Executive? It can declare an order.

Or how about the Supreme Court? Regulations can be challenged.

Should maybe a citizen's group be formed to analyze, criticize, and promote change in regulations? Even lobby for/against legislation?

I like the last one. The notion of citizens becoming active on government (not in it) appeals. Hey, if environmentalists and businesses can do this, so can we!

Power to the people, eh?

Theoretically, the check and balance on regulatory agencies is Congress which holds oversight responsibility. I suppose that Congress could within it's Constitutional authority consider each and every regulation and pass legislation over-turning the ones it didn't like, but that would be a nightmare. The Executive branch could also do this sort of thing and have the President issue Executive orders if necessary, although it wouldn't come to that. I think that was part of what Al Gore was supposed to do during the Clinton years when he was conducting a review of the government agencies and attempting to streamline them. That was a good idea and I think Gore actually eliminated a couple of thousand pages of regulations, but there are tens of thousands more. It is a monumental task to be sure.

I too like your idea of an independent "citizens panel" to review and provide Congress with suggestions, and there is a precedent for that. That's how military base closures are done now and it works because it removes the direct political risk from Congress when a base is closed. Perhaps we could do the same thing with government regulations? Good idea I think, really good idea!