- - Friday, December 23, 2016

ANALYSIS-OPINION

President-elect Donald Trump should expeditiously restore the legislative veto upended by the U.S. Supreme Court in INS v. Chadha (1983) to downsize the mammoth regulatory state. He can do so by unilateral executive action. (A legislative veto would empower one house of Congress to block or repeal major agency regulations by voting a resolution of disapproval that does not require the concurrence of the other chamber and is not subject to the president’s veto).

The president-elect’s campaign promises include eliminating 70 percent of federal regulations. His nominees are professedly committed to deregulation, for example, Oklahoma Attorney General Scott Truitt nominated to be Administrator of the Environmental Protection Agency. They can be expected to implement the president-elect’s deregulatory directives. The American people repudiated the same old-same old in November.

At present, the annual costs of federal regulatory compliance may be as high as $2 trillion, a substantial fraction of the entire $4.3 trillion federal budget. Downsizing the regulatory state is thus a game well worth the candle.

Thousands of agency rules are issued every year. Approximately 80-100 ordinarily qualify as “major,” i.e., estimated to have an annual effect of $100 million or more on the economy.

Limitless congressional delegations of its legislative powers and the absence of political accountability have fueled regulatory overreach for 80 years. To hide from responsibility, Congress characteristically empowers executive agencies to issue rules and regulations in “the public interest.” Having served as general counsel to the Federal Communications Commission, I can testify that very little imagination is needed for an agency to discern some public interest in everything it does.

Moreover, the decision of the United States Supreme Court in Chevron U.S.A. v. NRDC (1984) sustains virtually every agency regulation short of imbecility. Members of Congress, nevertheless, are eager to make wholesale public interest delegations compounded by Chevron to avoid voting on difficult decisions that an opponent might attack.

Agencies receiving vast delegated authorities from Congress also evade accountability. The executive branch is hydra-headed and sprawling. Except for the president, its members are appointed. The public is unlikely to hold the president accountable at the polls because an agency goes off the reservation. Thus, the regulatory state has grown like bamboo under both Republican and Democratic administrations. Congress has pointed its finger at the agencies. The agencies have pointed their fingers back at Congress. And the American people have been bewildered as to who is responsible.

President-elect Trump has it within his power to downsize the regulatory state by creating a legislative veto power via agency regulations. The Chadha precedent held only that Congress may not grant itself legislative veto power over agency operations. It left undisturbed the discretion of the executive branch to do so. The “Baker Accord” of 1989 provides the model.

Congressional funding of the Nicaraguan resistance was controversial at the outset of President George H.W. Bush’s administration. Then-Secretary of State James Baker negotiated an agreement by which Congress would appropriate $50 million in humanitarian aid to the Contras on the condition that nothing would be expended without the approval of certain committees and party leaders.

Building on the Baker accord, President-elect Trump should require all agencies to issue regulations that would empower either the House or the Senate to veto any new “major” substantive rule through a resolution of disapproval within 180 days of the rule’s promulgation. Old “major” rules would be grandfathered unless either congressional chamber voted a resolution of disapproval as to one or more of them within 12 months of President Trump’s inauguration. In that event, the disapproved rules would lapse.

By this process, President Trump would make members of the 115th Congress responsible for every major federal regulation.

As a man’s knowledge that he will be hanged in a fortnight concentrates his mind wonderfully, a member’s knowledge that he confronts accountability for every major regulatory rule with an economic impact exceeding $100 million will concentrate his mind wonderfully against the ill-conceived ones.

Creating a legislative veto by unilateral executive action would be a landmark legacy of the Trump administration turning back decades of federal regulation gone amuck fueled by congressional cowardice.

The only question is whether the president-elect will display the same political courage in office that he displayed during the campaign.


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