Republicans are rightly complaining about Obama’s abuse of power in the issuance of sweeping executive orders to trump their opposition in Congress on important policy issues.
But, as abusive as that use of power is, the danger it poses to our representative democracy is dwarfed by federal agencies’ continuing issuance of massive federal regulations. Over the decades the Code of Federal Regulations has dwarfed the United States Code (statutes written by Congress).
The Constitution dictates that Congress passes the laws that govern our nation. But in administrations (both Republican and Democrat) over several decades, Congress has blithely delegated that law-making power to a myriad of federal agencies. And the Supreme Court has readily endorsed that shift in power by ordering lower courts to defer to a federal agency’s interpretations of the law.
The procedure is as simple as it is deleterious. Congress passes the broad, vaguely skeletal outline of a law and then authorizes a federal agency to flesh out the details (really, to write the law). Of course, “the devil is in the details” so there is a lot of devilish mischief buried away in the voluminous regulations written by those federal agencies.
Moreover, those federal agencies, whose very existence depends on the complexity and comprehensive nature of those implementing regulations, are unlikely to narrowly interpret their enabling statutes. The regulations instead become a form of enhanced job security for the very bureaucrats who write them.
Not surprisingly, the IRS is the king of regulations. According to the Commerce Clearing House, the Internal Revenue Code in 2013 weighed in at 5,248 pages. But, the IRS regulations that same year were a whopping 73,954 pages long. That vast ocean of tax regulations provides strengthened job security for 100,000 IRS employees.
Another example of regulatory excess is found at the Occupational Safety and Health Administration at the Department of Labor. In 1970 Congress passed the Occupational Safety and Health Act to assure safe and healthful working conditions for all working men and women. The OSHA statute is 30 pages long. But the agency has been busy writing voluminous regulations and “standards” that total thousands and thousands of pages.
The OSHA standards cover every imaginable minutia in the workplace. For example, the definition of a “ladder” runs on for a full 26 paragraphs of technical jargon and the regulations regarding their use covers dozens of pages at 29 CFR 1926, including the self-evident warning, “ladders shall be used only for the purpose for which they were designed,” and the even more obvious, “ladders shall not be moved, shifted, or extended while occupied.”
Similarly, the OSHA definition of an “exit” is another masterpiece of contrived complexity, but includes some standards that are conspicuously silly, “exit access means that portion of an exit route that leads to an exit.” Well, duh! The scores of exit regulations include the seemingly unnecessary caution, “exit routes must be kept free of explosive or highly flammable furnishings or other decorations.” Well, double duh!
Human resource professionals for government contractors grapple with the enormous complexity of Executive Order 11246 and its massive regulations issued by the Office of Federal Contract Compliance programs. That body of law prohibits federal contractors and subcontractors and federally assisted construction contractors and subcontractors that generally have contracts that exceed $10,000 from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin. It also requires covered contractors to take affirmative action to ensure that equal opportunity is provided in all aspects of their employment.
That massive regulatory scheme springs from a simple five-page federal procurement statute which regulates government purchases. Under the authority of Executive Order 11246, the OFCCP has issued thousands of pages of implementing regulations covering underutilization of minorities and women, goals and timetables to achieve affirmative action objectives, and other arcane workplace diversity requirements.
None of the federal bureaucrats at these federal agencies are elected. Moreover, only a small handful of the top policy-makers are even subject to Senate confirmation. But, these very same unelected government employees wield enormous, and largely unchecked, power over the development of our federal laws.
To be sure all, these agencies are subject to congressional oversight, and the vast body of regulations they write are subject to periods of public comment and/or debate and often scrutiny in public hearings. But those are meager checks on the power of agencies to interpret their authority beyond what Congress intended, and are no substitute for the type of legislative debate in the House and Senate, and their respective committees, that is envisioned by the Constitution.
Regrettably, the age of statutes has given way to an era of regulations. Most of the federal government’s authority is exercised, on a day-to-day basis, through its administrative agencies. Central to the efficiency of those agencies — such as it is — is the judiciary’s decades-old, wholesale deference to agency decision-making
In the 1996 case Auer v. Robbins, the Supreme Court ruled that where there is any ambiguity or disagreement over what a federal regulation means, courts should defer to the interpretation favored by the agency that issued the regulation.
The practical consequence of this decision has been that government agencies have had the power not just to create and enforce their own rules but also to definitively interpret them, and to ensure their continued existence. Given the mind-boggling number of federal regulations that exist—and the exceptional breadth of behavior that they govern—the importance of this “Auer deference” can’t be overstated.
Simply put, Auer deference is contrary to fundamental principles of separation of powers. To maintain the required separation, each branch of government must jealously guard its powers to prevent encroachment. Granting controlling deference to an executive agency’s interpretation of its own regulations is an abdication of that duty.
Active and meaningful judicial review would instead provide a constitutionally required check on an agency’s interpretation of its own regulations. It would also incentivize agencies to enact clear and unambiguous regulations because they then bear the burden of saying what they mean when promulgating regulations. This serves Congress’s aim that agencies promulgate their rules pursuant to procedures that provide for public participation and appropriate review.