March 3, 2017
"to elevate the condition of men--to lift artificial weights from all shoulders, to clear the paths of laudable pursuit for all, to afford all an unfettered start and a fair chance, in the race of life." --Abraham Lincoln
Chairman's Note: Dismantling the Administrative State
Last month, the Senate voted to use the Congressional Review Act to undo an Obama-era regulation issued by the Interior Department. In response, the director of the Department’s Office of Surface Mining Reclamation and Enforcement told Politico, “I believe there’s a good chance that […] a court will overturn Congress’ actions here as an unconstitutional usurpation of the executive branch’s powers.”
The constitutional illiteracy of this statement is simply breathtaking – and it would be funny, too, if it weren’t so prevalent within the federal government today.
How did this happen?
Article I of the U.S. Constitution begins, “All legislative power herein granted shall be vested in a Congress of the United States.” And Article II obligates the president and his executive branch to “take Care that the Laws be faithfully executed.”
And for more than the first hundred years of our republic, that is largely how it worked. Congress passed laws and the executive branch enforced them.
But in his first Inaugural Address, President Roosevelt called for constitutional change. He claimed the Depression should be treated as an “emergency of war,” requiring a “temporary departure from the normal balance of public procedure.”
Unfortunately, our government has been not-so-temporarily departing from the normal balance of public procedure ever since.
But it wasn’t until Roosevelt died and President Truman came to power that the government adopted a more systematic and codified framework that set the ground rules for America’s burgeoning administrative state. The cornerstone of this framework was the Administrative Procedures Act (APA).
Under the APA, Congress could delegate broad lawmaking powers to executive-branch agencies. To adjudicate this new and delicate sharing of lawmaking authority, the courts had the jurisdiction to review the propriety and scope of agency rule-making. At the same time, in an effort to retain as much of its legislative authority as possible, Congress began inserting more and more “legislative veto” provisions into these otherwise broad grants of power.
This framework was not completely static over the next 40 years, but in the 1980s two Supreme Court cases fundamentally changed the balance of power between the branches: INS v. Chadha and Chevron U.S.A. v. Natural Resources Defense Council.
Taken together these two cases caused a substantial transfer of power from the legislative and judicial branches to the executive branch. The result is an executive branch that has grown far too powerful and insulated from public control. But there are three pieces of legislation that would go a long way toward reinvigorating the separation of powers at the heart of our constitutional system.
First, the Regulations from the Executive in Need of Scrutiny Act (REINS Act) would help restore the balance between the executive and legislative branches by requiring Congressional approval for any new regulation that would have a major impact ($100 million or more) on the economy.
Second, the Separation of Powers Restoration Act would amend the APA and require judges hearing challenges to agency actions to review all relevant questions of law “de novo,” thereby ending the dysfunctional status quo that tilts the legal playing field in favor of federal bureaucracies.
Finally, the Agency Accountability Act would make federal agencies accountable again by directing most fines, fees, and unappropriated proceeds to the Treasury, instead of letting federal agencies keep and spend them as they see fit.
With President Trump in the White House, elected on a promise to “drain the swamp,” we have a unique opportunity to pass all three of these bills. Doing so would constitute a fundamental shift of power in this country – a transfer of power, to paraphrase President Trump’s inaugural address, not merely from one party to another, but from Washington, D.C., back to the American people.
Issue in Focus: Cleaning Up the Clean Water Act
In 1972 Congress passed the Clean Water Act to protect the “waters of the United States” by empowering the Environmental Protection Agency (EPA) “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” At first glance, this seems like a sensible, even commendable, piece of legislation. After all, who doesn’t want clean water?
But there’s a catch: what exactly are the “waters of the United States”? Rivers, streams, lakes, bays, and marshes obviously fit the bill. But what about a small creek that contains running water only a few months out of the year? Or a ditch beside the road that diverts runoff water after a big storm but is otherwise dry? Or what about a hole in your backyard that periodically collects a few inches of rainwater?
The answers to these questions are vital, because the EPA’s jurisdiction to enforce its strict permitting and polluting regulations extends only to what is officially considered “waters of the United States.” But you won’t find these answers in the Clean Water Act, because Congress wrote the law without defining “waters of the United States” or providing the EPA with any clear and precise standards to do so. This ambiguity in the law – and the immense discretion enjoyed by the EPA as a result – is problematic for two main reasons.
First, by telling the EPA to regulate a thing without strictly defining what that thing is, Congress effectively gave the bureaucratic agency the power to make the law and to enforce it. You don’t need to be a cynic to see that such a concentration of power within a single government agency – especially one that is run by individuals who don’t have to stand for election and whose names the American people will never know – is a recipe for abuse and corruption.
Moreover, an executive agency that has the power to define something also has the power to redefine it, again and again. This is exactly what has happened with the Clean Water Act. Over the years, EPA regulators have interpreted – and repeatedly reinterpreted – the law to accommodate their ever-expanding conception of their own power. This process reached the point of absurdity under President Obama when the EPA issued a rule, commonly called the “Waters of the United States rule,” that expanded its reach so far that it claimed it could regulate a hole in someone’s backyard that fills with rainwater in the winter, even if it is situated miles away from a stream that leads into a river.
For left-wing environmental groups, the open-ended nature of the Clean Water Act has been a dream come true, providing endless opportunities to steadily expand the federal government’s control of public and private lands. But for many Americans – everyone from farmers and ranchers to ordinary homeowners – the EPA’s evolving definition of “waters of the United States” has been a nightmare. If you’re required to obtain a permit from the EPA in order to lawfully fill a hole in your backyard with dirt, and if the EPA has the power to fine you tens of thousands of dollars a day for building a pond on your farm, are your private-property rights not under attack?
Thankfully, this week President Trump signed an executive order that requires the EPA to revise the Obama administration’s rule according to the standard set forth by the late Supreme Court Justice Antonin Scalia. In Rapanos v. U.S., Justice Scalia proposed defining “waters of the United States” to mean “only relatively permanent, standing or flowing bodies of water” not including “channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.”<
President Trump’s executive order is a tremendous first step toward bring clarity and commonsense to the Clean Water Act. But ultimately, this is a mess that only Congress can fix, which is why I will continue to try to advance legislative reforms, like those offered by Senators Barrasso and Paul, that will prevent the EPA from abusing its powers, while ensuring the agency still has the tools and resources it needs to help maintain a clean and healthy water supply in the United States.
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Lee Statement on American Health Care Act
WASHINGTON – Sen. Mike Lee (R-UT) issued the following statement Tuesday in response to the release of the American Health Care Act:
“This is not the Obamacare repeal bill we’ve been waiting for. It is a missed opportunity and a step in the wrong direction,” Sen. Lee said.
“We promised the American people we would drain the swamp and end business as usual in Washington. This bill does not do that. We don’t know how many people would use this new tax credit, we don’t know how much it will cost, and we don’t know if this bill will make health care more affordable for Americans.”
“This is exactly the type of back-room dealing and rushed process that we criticized Democrats for, and it is not what we promised the American people.”
“Let’s fulfill our Obamacare repeal promise immediately and then take our time and do reform right. Let’s pass the 2015 repeal bill that Republicans in both houses of Congress voted for and sent to the White House just 15 months ago. Once Obamacare has been properly sent to the dustbin of history then we can begin a deliberative, open, and honest process to reform our nation’s health care system.”
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