A return to the kind of government the founders imagined.
America has begun the process of reclaiming the Constitution.
This week, the Senate is taking up the confirmation Judge Neil Gorsuch, one of many Trump nominees known for his dedication to constitutional government. This follows the Senate confirmation of Oklahoma Attorney General Scott Pruitt as head of the EPA — a federal agency he has sued not once, not twice, but fourteen times.
Pruitt’s appointment could not come at a better time. During the past eight years, the Obama administration has passed well over 25,000 regulations. These regulations cost taxpayers a whopping $890 billion, or about $15,000 a household. And of that $890 billion, the EPA is responsible for $344 billion — more than any other agency.
This kind of power goes directly against the framers’ original intent. These regulations are not openly promulgated on the floor of Congress by elected legislators who serve a set term. Instead, they are quietly passed by unelected, unaccountable bureaucrats.
Not only do they affect matters at the federal level, but they also impact states, regions and even other countries. When Obama signed the Paris Agreement last year, he did so entirely of his own accord and without the necessary ratification in the Senate. Shocking as this is, it’s only a symptom of the ongoing erosion of the Constitution’s separation of powers.
Administrator Pruitt has spent his career fighting against this erosion. He created a “federalism unit” in Oklahoma to defend the states against federal overreach and sued the federal government over the enactment of Obamacare. His confirmation is a strong first step towards restoring the vision of the Founding Fathers — but it is only a first step. If the Constitution is to be revitalized, the executive agencies must continue to concede their excess power and the other branches must step up and claim what is constitutionally theirs.
Since his inauguration, President Trump has done just that. At the end of January, he signed an executive order that directs the agencies to repeal two regulations for every new one they pass. The order also prohibits the agencies from spending any more money this year on regulations unless they receive a direct mandate to do so from Congress or approval from the Office of Management and Budget. Such radical restrictions on regulation would have devastated Obama’s cabinet, but leaders like Pruitt will use them to effect change in a conscientious and constitutional way.
This week’s confirmation hearings mark Trump’s most significant step in restoring the Constitution: his selection of Judge Neil Gorsuch for the Supreme Court seat left empty after the death of Justice Antonin Scalia last year. Many have noted the similarities between the two. By and large, they both favor a strict and literalist interpretation of the Constitution. But Gorsuch takes it one step further than Scalia did: he openly opposes Chevron deference.
Chevron deference is the reason that the EPA has the kind of power that it does and could spend the kind of money it did. It is the result of a 1984 Supreme Court case Chevron USA v. the National Resources Defense Council. The court, in a remarkably self-defeating decision, ruled that the courts should defer to an agency’s interpretation of legislation or statutes. The result was that agencies were free to interpret any vagueness or ambiguity in legislation as they saw fit — without review from the courts.
Gorsuch opposes Chevron deference because of its blatant violation of the separation of powers. He has made no bones about his position: in his opinion in Gutierrez-Brizuela v. Lynch, when he argued, “There’s an elephant in the room with us today… Chevron… permit(s) executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.”
The time has indeed come to face the behemoth — if the legislative branch can work up the courage to challenge it. The Senate has already shown its mettle in confirming Pruitt, another avowed enemy of agency overreach, to lead the most overreaching agency of all. Congress at large will have two more opportunities to confront Chevron in the months to come. The first is on March 20, when Gorsuch’s confirmation hearings will begin. Speedily confirming him will be another step towards regaining the power lost to the federal agencies in Chevron.
The second opportunity lies in a piece of legislation currently sitting on the floor of Congress. Introduced by Rep. Bob Goodlatte (R-Va.), the Regulatory Accountability Act combines several pieces of previously passed legislation to roll back the power of the agencies. It forces agencies to adopt the least expensive rule and to publish electronically all the evidence (transcripts, exhibits, etc.) used in crafting a rule. It demands that agencies research and report on the effect their regulations will have on small businesses, which are often sunk before they start by the exorbitant legal fees necessary to deal with federal regulations. But most importantly, it overturns Chevron deference and restores the separation of powers that makes up the beating heart of our republic.
In the 1940s, with his artery-clogging alphabet soup of agencies, Franklin Delano Roosevelt expanded the size and scope of the federal government more than any other 20th century president. But he was aware of the health risks, and worried “that the practice of creating independent regulatory commissions, who perform administrative work in addition to judicial work, threatens to develop a ‘fourth branch’ of Government for which there is no sanction in the Constitution.”
The result was the Administrative Procedure Act, a 1946 piece of legislation that attempted to keep the agencies in check via judicial review. Whatever the act attempted to do has been undone by years of executive overreach that cripples American companies and crushes American citizens.
But no more. President Trump’s executive order explicitly mentioned the Administrative Procedures Act and commands the agencies to abide by it as they begin to slash old regulations. Between Trump’s surrender of executive power, Gorsuch’s appointment to the Supreme Court, and Congress’ passage of the Regulatory Accountability Act, the U.S. has the chance to return to the kind of government the founders imagined — namely, a three-branch government that genuinely promotes the general welfare without risking the blessings of liberties either for ourselves or for our posterity.
Scott Pruitt (Gage Skidmore/Creative Commons)