The Federalism Project

Constitutional Reform and Governance in the U.S. (& Around the World)

Regulatory Reform

The basic working principle of your system of governance is the separate/complementary role of the three branches of government.  Congress passes laws but cannot enforce them.  The Executive enforces the laws but cannot create them.  And the Judicial branch accesses laws for their appropriates (constitutionality) but cannot make laws or enforce laws.

This basic model has dramatically changed during the past 100 years, with the complexity added to our everyday life by the industrialization of our society and the post-Great Depression developments.  Government regulation, as an additional component of laws passed by congress, are absolutely essential in further clarifying acts of Congress and facilitating their execution.  However, to many laws are written in general terms, that then empower government agencies or independent regulatory commissions to create voluminous regulations.  Many times, in the absence of an act of Congress (like immigration) government regulations become the law.

In essence, many congressional politicians, in order to avoid the politically challenging issues that could hurt their reelection, have opted for inaction, thus empowering government agencies, regulatory commissions and the Judiciary to step in and ‘make laws.’

There is no doubt that regulatory agencies/commissions are essential for the function of our complex society, and some areas like financial instruments, telecommunications, pharmaceuticals, corporate governance, the environment, aviation, campaign contributions, etc. require extensive regulations.  Such regulators like the SEC, FTC, FCC, EPA, FAA, FDA, are absolutely necessary and proper.  However, by the nature of their composition (commissioners or administrators appointed by the President and approved by the Senate), they are incomplete and unbalanced, because they exclude the House (House, Senate and the President being needed to all agree for an act of congress to become a law).

As a result, we see that especially in the past 10-20 years, a new administration also means a new way of interpreting and applying an existing law, with regulations to match, contradicting or out-right reversing regulations of past administrations.

Therefore, law-making needs to be exclusively contained within Congress, and regulation producing needs to be removed from government agencies and the control of the occasional President, who is elected on the basis of ideology.  In particular, because Executive Branch agencies and departments have too much power (causing an unbalance on the system) through their capacity to draft/issue rules and regulations:

  • Remove regulatory function from every executive branch agency and/or department, and transfer it to independent regulatory commissions.
  • Consolidate all regulatory commissions into 15 (as many as the executive branch departments), and transfer all their ‘executive functions’ to an appropriate government department.
  • The new independent regulatory commissions (one for each federal government department), will be function like ‘board of directors.’ Each one will have 9 members serving for 9 years, staggered terms (3 appointed, every 3 years), and will be appointed by the President, the Senate Majority and the House Majority (3 from each).
  • These independent commissioners will not require “appointment by the President and confirmation by the Senate,” therefore eliminating the possibility of vacancies. However, appointment of one of these commissions will require some level of proficiency (x type of higher education, and y years of professional work).
  • Government agencies that are responsible for enforcing laws on a certain activity (Treasury and financial instruments) could still draft/propose regulations, but approval will have to come from the appropriate new regulatory commission, that will have an equal number of House-Senate-President representatives.
  • All government regulations will automatically expire after a fixed number of years (lets say 12), thus requiring a mandatory review/reauthorization by a new crop of independent commissioners.

Government regulations are like laws, and more of then then not the only law available.  If Congress is not going to pass laws that spell out every minute detail, and it will rather rely on regulatory agencies/commissions, then their composition needs to change.  Also, by following the model that I propose, you can also remove the regulatory process from the grip of politically ideological appointees.

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