Bush Wants Executive to Be More Executive

Radley Balko | January 30, 2007

I'm as suspect of the Bush administration as anyone, but I have a hard time getting too worked up over the fact that Bush wants more executive control over the executive agencies that make up the federal regulatory state. Under the Constitution, they do, after all, report to him. Given that federal regulations carry the force of law, and that violations of the Federal Register can increasingly trigger criminal charges, I'd rather an elected, accountable politician be holding the buck at the end of the line than a sea of faceless, unelected, nearly unfireable bureaucrats.

If Henry Waxman is really is terribly concerned about all of this, the answer isn't to make executive agencies less answerable to the executive. It's to make them more accountable to the Congress. Congress needs to stop delegating so much lawmaking power to regulatory agencies. In fact, I don't think it would be such a bad idea to force Congress to vote on every measly federal regulation it expects the rest of us to abide by.

Doing so would serve several purposes: One, it would open their eyes to just how massive, contradictory, and Byzantine federal regulatory law really is, and perhaps inspire them to do something to reign it in. Two, as a matter of principle, people shouldn't be going to jail for violating laws Congress never expressly voted on. And three, by the time Congress had worked its way through the Federal Register, they'd have a hell of a lot less time to pass other laws.

Comments

|1.30.07 @ 6:40PM|#

So instead of directing the EPA to study the toxicity of chemical Z and come up with a safe level for drinking water, Congress should set that level?

I say 4 ppm is a good number.

Only corporate shills would allow our children to drink water with 4ppm. It should be 3.

I say 2! Look at me!

Radley Balko|1.30.07 @ 6:41PM|#

That's what hearings are for, Joe.

|1.30.07 @ 6:43PM|#

I wonder what the political appointee who will oversee the FDA's establishment of regulations for the dispensing of Plan B thinks about abortion rights.

Warren|1.30.07 @ 6:45PM|#

In fact, I don't think it would be such a bad idea to force Congress to vote on every measly federal regulation it expects the rest of us to abide by.

AMEN brother. Sing it loud.

|1.30.07 @ 6:48PM|#

Political processes are effective, appropriate forums for discussing beliefs and values.

For example, should the maximum level of Chemical Z in drinking water be established to eliminate all risk, or should economic values be incorporated? How much should each consideration be weighed?

Once that principle is articulated by the political branches, it should be up to people with expertise in the particular matter at hand (rather than people with expertise in winning elections) to determine what the maximum ppm should be.

I doan know much about pee-pee-ems, but where ah'm from, we've got a sayin'...

lws|1.30.07 @ 6:50PM|#

While they're at it, they could make Congress and Samoa follow all laws.

|1.30.07 @ 7:03PM|#

Hey, don't involve us in your regulatory state. We've got enough problems already.

Jammer|1.30.07 @ 7:04PM|#

Basically, technical issues should be decided by technicians. Except when they shouldn't. Simple, no?

|1.30.07 @ 7:08PM|#

Given how politicized we've already seen the regulatory bureaus get (witness FDA and Plan B medication), I'm of the opposite opinion. You might not like a lot of the regulatory stuff shoved out by the bureaucracy, but if you think that putting a bunch of diehard politicians with the brains of lightening bugs in charge is going to produce anything better, you have a very optimistic view of the entire process.

Let's put it this way: the critical mass of plutonium is not something to be voted upon by politicians.

|1.30.07 @ 7:14PM|#

So instead of directing the EPA to study the toxicity of chemical Z and come up with a safe level for drinking water, Congress should set that level?

Why not? Have specialists issue reports, and Congress can vote, fully informed by the reports.

What makes you think that appointing a totally unaccountable set of dictators will be any more reasonable that having Congress set the limits?

|1.30.07 @ 7:19PM|#

Rex, what is it that's happened over the past few years that leads you to believe that Congressmen will put the findings of experts above their ideologies and political interests?

Was it the way Congress listened so carefully to Shinseki about troops levels? Was it the objective statesmanship demonstrated by Trent Lott when he put a destroyer the Navy didn't want into the defense appropriation?

I think scientist and experts are more likely to put science and expertise ahead of politics, and I think politicians can be counted on to put politics ahead of science and expertise.

|1.30.07 @ 7:34PM|#

Well, then, joe, the citizens of this republic can remove said politicians from power, and do the same to the next set if they behave as badly. That's kinda' what self governance is about.

|1.30.07 @ 7:38PM|#

Will,

How are you and I going to know whether Senator Kennedy's vote to lower the ppm from 5.5 to 3.8 going to know if it is a good idea?

|1.30.07 @ 7:42PM|#

While at it, congress should make the entire bureaucracy as fireable as they are. They could use Cynthia McKinney as their patron saint.

I would prefer to see ALL non-essential, below immediate cabinet level bureaucrats apportioned to offices located amoung the fifty states, according to representation. Would be tantamount to working from home.

|1.30.07 @ 7:47PM|#

I suppose we might endeavor to educate ourselves, joe, unless you are supposing that Kennedy will prohibit other people from disseminating information to us. Of course, since Kennedy believes that Congress has the constitutional power to pass laws which regulate the content of communication between assemblies of citizens, especially with regards to messages which are concerned with the behavior of elected representatives, your supposition is not unfounded.

|1.30.07 @ 7:57PM|#

Will Allen,

I've only got 7 days in my week. How long to you think it would take me to educate myself about a week's worth of regulations?

There's a reason mankind adopted division of labor.

|1.30.07 @ 8:19PM|#

I think there must be some options between "unaccountable bureaucracy" and "every regulation subject to Congressional approval." There's something to be said for placing a certain distance and the political process. That's why Senators have staggered 6 year terms, after all, and why they were originally appointed rather than elected.

Perhaps a process where Congress can vote yes/no on regulations that an agency writes? I dunno, something between "Let's vote on every detail" and a bureaucracy with no effective accountability.

|1.30.07 @ 8:23PM|#

How are you and I going to know whether Senator Kennedy's vote to lower the ppm from 5.5 to 3.8 going to know if it is a good idea?

How do you know now? Because an agent of the executive branch told you so?

In defending some regulations you consider worthwhile, you are defending a pernicious and evil principle. The principle that not only can a bureaucrat set rules that the citizen must follow but that the citizen can then be deprived of his liberty for violating them, said rules never explicitly authorized by his representatives.

This is a principle that can only lead to despotism. Whether you approve of the object of such despotism, it remains a despotism nonetheless.

|1.30.07 @ 8:23PM|#

The tension between popular oversight and professional independence is an important one, but Bush's proposal - to put his personal political appointee in a position to oversee agencies that promulgate regulations - doesn't make those agencies any more subjec to popular oversight.

|1.30.07 @ 8:27PM|#

AJ,

"How do you know now? Because an agent of the executive branch told you so?"

I don't. I also don't know how to change my timing belt, fix my pipes, or bake a quiche.

Knowing the ideal ppm for each potential toxin is Not My Job.

"...said rules never explicitly authorized by his representatives."

How is this any different than Congress voting to go to war, and the officers who end up in charge of units determining their tactics?

libertarian|1.30.07 @ 8:32PM|#

What the Hell is the Federal government doing setting the Damn arbitrary Pee Pee Emms anyways?

Shouldn't that be the job of your local water utility?

Wait a sec I think I'm off-topic.

|1.30.07 @ 8:51PM|#

Sorry, I thought I was cured, but that crazy belief in a Constitution and separation of powers is paining me again.

Regulations, once the rubber hits the road, are laws. If you don't believe that, get caught breaking one. Oddly, they're created by the ream by unelected officials, instead of by Congress - the Congress which is supposed to actually pass laws that the executive branch enforces.

Yeah, yeah, PPM, BPM. We have Congressional committees and subcommittees that devise incredibly long and detailed bills. Some people here have even been known to take the judgment of some members (of the appropriate part) seriously on complex matters. Maybe, just maybe, Congress could consult experts on subjects - just like the bureaucrats do now.

All Constitution talk aside, though, it's funny to see joe, who likes to wax smug about democracy and "people power", suddenly get fearful at the idea of elected officials passing laws.

...And wow. Holy questionable metaphors:

How is this any different than Congress voting to go to war, and the officers who end up in charge of units determining their tactics?

Or how about Congress voting to let the president go to war if he feels like it and in any way he likes and for as long as he likes? Sound good to you?

Robert|1.30.07 @ 8:52PM|#

All this discussion of "experts", "professionals", and even "facts" is off the mark. Laws have a normative basis; they are not factual matters amenable to discovery, unless you're referring to laws of nature. Rather, they are matters of values, opinions, tastes, etc. that are worked out by compromise and negotiation. See also The Myth of Scientific Public Policy by Robert L. Formaini. We should not even pretend laws can have a deducible basis.

|1.30.07 @ 8:54PM|#

Frankly, it would be totally insane to require (or even let) Congress implement every federal regulation.

Why? Congress is full of idiots who don't know how anything works. There would are two possibilities of what would happen if regulatory agencies couldn't issue regulations.

One, the agencies would write the regulations, and Congress would rubber stamp them, in which case people would lose the already minimal protections of "Chevron" deference (the standard the courts use to determine whether or not a regulation or interpretation by an agency is acceptable per the law).

Or two, Congress would write a bunch of laws that would be all at once more complicated, contradictory, and vague. The courts would then have to pick one or the other interpretation when push comes to shove, and they know even less about how regulatory policy should be carried out.

|1.30.07 @ 8:55PM|#

"I think scientist and experts are more likely to put science and expertise ahead of politics,..."- joe

And there is the fundamental flaw in joe's logic. Human beings are influenced by political considerations, slapping the label "scientist" on a man does not make him less of a political animal then he was before. Also the type of scientist who wants to be involved in setting government policy is the most likely to be influenced by political considerations.

|1.30.07 @ 8:59PM|#

I'd also like to point out that if Ted Kennedy wrote a law that screws up water quality regulations in the West, he isn't going to lose his job over it. Requiring the Congress to create all these little regulations would create what are called "discrete and insular minorities" of people interested in the screwy regulations. If the new regulations only effect 2% of the population, the politicians will never lose their job over it, and they'll never revisit it.

|1.30.07 @ 9:11PM|#

Nice strawmen you've got there, Eric. Now let me school you on this works.

These regulations are being drawn up by executive branch officials AS DIRECTED BY LEGISLATION PASSED BY CONGRESS. The only time any executive branch officer makes a decision about what the ppm should be is when Congress passes a law directing him to do exactly that, and telling him how to do it. By doing his job as Congress directs through the passage of legislation, that executive branch official is executing the law passed by Congress.

Do you think these executive branch officials are producing regulations all by themselves, without Congressional authorization?

"Maybe, just maybe, Congress could consult experts on subjects - just like the bureaucrats do now." Looks like you don't know any more about how legislators work than how the executive branch works. If you had ever managed to drag your big, giant brain to a city council meeting, you might have discovered that legislators cave to pressure brought by interested parties, even going against the advice of the experts and their own better judgement, in order to save their seats. That's why they hand off rule-making authority - so they can keep their fingerprints off of unpopular, though objectively superior, regulations.

"Or how about Congress voting to let the president go to war if he feels like it and in any way he likes and for as long as he likes? Sound good to you?" No, that would be a poorly crafted law, and not a relevant point. Less with the reflexive joe-bashing, more with using your head, would be nice.

Robert,

"Laws have a normative basis; they are not factual matters amenable to discovery..."That's the difference between laws and regulations. Laws, which we all agree should be passed by elected representatives, are normative. The set the policy, on the level of goals and beliefs. For example, drinking water should not cause cancer. Regulations are intended as factual matters amenable to discovery. For example, Chemical Z causes cancer at concentrations of 4.5 ppm, so that's the standard adopted to implement the law.

|1.30.07 @ 9:14PM|#

MJ,

How subject a person is to political pressure isn't just a function of their personality, but their circumstances. The issue isn't whether "slapping the label scientist on someone" changes their nature, but whether their continued employment is based on the political effects of their decisions.

|1.30.07 @ 9:14PM|#

Bingo, MJ.

FinFang, you've just made an excellent argument for principled federalism.

|1.30.07 @ 9:22PM|#

Joe, why on earth do you suppose that people who employ the awesome power of the state should be immune from having their employment terminated due to the political effects of their decisions? Hell, even Supreme Court justices don't occupy such a rarefied position, yet you seem to think that bureaucrats should. Now if you think that Congress is too sensitive to the fickle whims of majorities, I wholly agree, which is why I'd support returning Senatorial elections to state legislatures.

|1.30.07 @ 9:38PM|#

Look, Congress passes a law saying "all water out of publicly available taps must be clean drinking water."

EPA and the regulatory agencies decide exactly what the definition of "clean drinking water" is.

Now the President wants to put in one of his cronies on top of the whole mess to have final say on that regulation. Crony is appointed by the president. Probably doesn't know jack shit about what he has been appointed to oversee, knows that he owes his job to the President and may have political aspirations himself. Probably is very nicely-nicely with big business and lobbying agencies donating in exchange for regulations being slanted in their favor.

There's a thing called "agency capture." I suggest you people read up on it.

I spent many years working in a country (Japan) which was run by the bureaucrats, politicians acting mainly as public entertainment and providing construction projects back to their local voters. No, the civil servants weren't elected. Neither were they paid that much in salaries. But they had a great deal of power over regulations (which never got written without a great deal of input from both business and public interest groups) and a great deal of professional pride.

The reason direct political control over technical regulations is not that good is a) the bulk of politicians do not have the technical background to understand what is going on, b) many regulations are taking a long term view of things because you don't want to have to re-write them every year, c) politicians can't be trusted to keep their hands off of tweaking regulations for political advantage and in quid-pro-quo in exchange for donations.

And anyone who bleats "let's get rid of all regulations" is a nitwit who doesn't live in the real world.

|1.30.07 @ 9:43PM|#

These regulations are being drawn up by executive branch officials AS DIRECTED BY LEGISLATION PASSED BY CONGRESS. The only time any executive branch officer makes a decision about what the ppm should be is when Congress passes a law directing him to do exactly that, and telling him how to do it. By doing his job as Congress directs through the passage of legislation, that executive branch official is executing the law passed by Congress.

And what's the relative volume of federal regulation vs. federal legislation, again? If regulations were a matter of just filling in the blanks, than what's the fear?

If you had ever managed to drag your big, giant brain to a city council meeting, you might have discovered that legislators cave to pressure brought by interested parties, even going against the advice of the experts and their own better judgement, in order to save their seats. That's why they hand off rule-making authority - so they can keep their fingerprints off of unpopular, though objectively superior, regulations.

Wait, wait - you just said they were just making little, tiny decisions about rules - not making up rules.

And, funnily, I seem to recall a lot of complaints from your corner about "interested parties" being listened to and dreaded pressure being brought to bear on these Solomonic bureaucrats under the present setup...

"Or how about Congress voting to let the president go to war if he feels like it and in any way he likes and for as long as he likes? Sound good to you?" No, that would be a poorly crafted law

Likewise, delegating such rule-making authority and accountability is poor practice.

Less with the reflexive joe-bashing

Pot, kettle, whatever...

You can say what you like about PPMs or bridge construction or whatever. These decisions aren't and never have been made by serene experts in an apolitical void. Further, these are decisions that affect the people the government supposedly represents. It's not horrific to suggest that the elected members of the legislative or even the executive have some control over these things.

|1.30.07 @ 9:48PM|#

There's a thing called "agency capture." I suggest you people read up on it.

If you look for "regulatory capture", you can find that it can happens with regulatory agencies through methods that have nothing to do with political appointment.

I just find it hilarious that people so in favor of unaccountable, faceless bureaucrats setting the rules we have to live by tend to throw a fit when some private company makes a decision about, say, placing a factory without asking for their personal input...

|1.30.07 @ 10:04PM|#

I'll state it more plainly.

Congress has shamefully delegated its power to executive agents. There are many people who defend Congress's abdication of its responsibilities because they find it expedient. Those people, wittingly or unwittingly, are advancing a tyrannical principle. This ought to be obvious from their disdain of the people's ability to rule themelves.

|1.30.07 @ 10:07PM|#

Anybody who thinks regulators objectively pursue the common good is a nitwit who doesn't live in the real world.

|1.30.07 @ 10:09PM|#

Will,

"Joe, why on earth do you suppose that people who employ the awesome power of the state should be immune from having their employment terminated due to the political effects of their decisions?"

In general, I don't. However, in certain cases, the highest priority is to ensure that the government functions according to the most accurate scientific information. Scientific truth isn't based on a popularity contest. If the steel for the supports of a levee needs to be of a certain strength, the engineer drawing up the plans shouldn't care that some particular steel supplier, who can make a lot of donations and whose employees vote in elections, specializes in steel of a certain strength.

"And what's the relative volume of federal regulation vs. federal legislation, again?" There are a lot more of the latter than the former. Making statements about values and goals requires less ink than actually applying those values and goals to all of the relevant situations. Yet another reason why we can't rely on Congress for regulation - the workload makes it impossible.

"Wait, wait - you just said they were just making little, tiny decisions about rules - not making up rules." You seem to have misread my point about the difference between values and objective knowledege as referring to the volume of work. In fact, as I've said, just the opposite is true.

"And, funnily, I seem to recall a lot of complaints from your corner about "interested parties" being listened to and dreaded pressure being brought to bear on these Solomonic bureaucrats under the present setup..." Yes, this administration has worked to make executive departments less independent and more subject to political pressure. I think that's a bad idea. I can't even begin the guess how you think this refutes what I've been writing.

"These decisions aren't and never have been made by serene experts in an apolitical void." True, and sometimes Congressmen apply objective, fact-based judgement and eschew politics. Nonetheless, independent experts can be counted on to be less political, and professional politicians more political.

"It's not horrific to suggest that the elected members of the legislative or even the executive have some control over these things." They do have control over these things. Congress can change the law and instruct the agencies to write different regulations, and they will then apply their abilities to rewriting them. This is quite a bit different from eliminating the independent judgement of experts entirely.

|1.30.07 @ 10:13PM|#

In short, when Congress passes a law telling an executive department what to do, it IS executive action for the employees of that department to do what they're told.

Even when the action ordered by Congress is to write up procedures for implementing the law Congress passed.

Robert|1.30.07 @ 10:35PM|#

"in certain cases, the highest priority is to ensure that the government functions according to the most accurate scientific information. Scientific truth isn't based on a popularity contest. If the steel for the supports of a levee needs to be of a certain strength, the engineer drawing up the plans shouldn't care that some particular steel supplier, who can make a lot of donations and whose employees vote in elections, specializes in steel of a certain strength."

But how was it decided that a levee needed to be of a certain strength? Who decides whether it should be expected to fail 1% of the time or 10% of the time? And why isn't the decision to use the steel from a particular supplier just as normative as the decision that it be a particular strength, or even that it be steel?

I see no reason gov't needs any scientific information at all. No matter what they decide, someone's going to like it and someone else is going to dislike it. What's the difference what their reasons for liking or disliking it are? And wouldn't it be just as valid an exercise of gov't for it to have come out the opposite way, with the opposite people liking & disliking it?

|1.30.07 @ 11:01PM|#

joe, in all cases the people are sovereign, so, no, nobody gets to have their job security insulated from the political effects of their decisions. Does this mean I necessarily support Bush's move in this direction? No, but I also decry Congress increasingly delegating vast powers to people who are so greatly insulated, if not completely so. You rightly argue that it would take a lot of time for citizens to know what their elected representatives were doing, if they were legislating in more detail, but it takes just as much time, if not more so, to know what their unelected regulators are doing, and there is just as much need to do so, your faith notwithstanding.

Even if people do go to those lengths, however, they have far less ability to supervise those that govern them as things currently stand, combined with a national government which is far more powerful than what was considered the norm for most of the nation's history. You think a far more powerful national government, combined with voters having far less direct influence over those who exercise such national power, is a preferable state of affairs. I differ.

tros|1.30.07 @ 11:14PM|#

Scientific truth isn't based on a popularity contest.

Yes it is. It's called "peer review".

Guy Montag|1.30.07 @ 11:21PM|#

Radley,

It takes a village, you know.

I prefer sayings over hearings ;-)

OT: Did you see the double-speak effort at support for President Bush from David A. Bell in the LA Times? Seems those TNR folk are finally backing our efforts in Iraq.

tros|1.30.07 @ 11:27PM|#

It takes a village, you know.

I never thought I'd hear somebody say that around here!

Paul|1.31.07 @ 12:31AM|#

So instead of directing the EPA to study the toxicity of chemical Z and come up with a safe level for drinking water, Congress should set that level?

No, joe, the EPA recommends the level after studying the issue, makes a report to Congress, and Congress codifies it into law by voting for a bill.

|1.31.07 @ 12:31AM|#

Peer review of a journal article is generally NOT a popularity contest. A journal article in science describes a specific series of experiments and/or calculations, and the reviewers are there to evaluate whether the article (1) describes them well enough that somebody else could replicate the work and (2) whether the conclusions drawn are consistent with the data reported.

This is NOT a certification that the results are correct. It ONLY means that the article is detailed enough for replication (and replication is the gold standard in science), and that the authors have drawn conclusions that are plausible in light of the data presented. The data could turn out to be wrong (that's why we need replication), but the peer reviewers are only there to ask whether the investigation described makes sense on its own terms. The efforts of people trying to replicate it will handle the rest of the remaining (and important!) questions.

The more problematic area is when the "experts review the findings in the field and issue recommendations." Individual peer-reviewed articles can describe very careful experiments and calculations, and yet reach different conclusions because of some variable that differs between the two studies. (Perhaps a variable that nobody is aware of, hence the confusion.) When the "experts" decide to "review the findings in the field" they are picking and choosing among previously reviewed results, and doing so based on sometimes subjective criteria rather than using additional experiments and calculations to decide between the conflicting results. In that case, popularity can come into play.

Paul|1.31.07 @ 12:33AM|#

Rex, what is it that's happened over the past few years that leads you to believe that Congressmen will put the findings of experts above their ideologies and political interests?

Oh for gods sake, joe, like regulatory agencies don't engage in same? You ought to work for a social service organization sometime. You wanna see faceless, unelected, clipboard wielding agents of social control grind an axe?

David Nieporent|1.31.07 @ 1:00AM|#

Let's not forget why Joe is so vehement about this: in his day job, he's one of those bureaucrats (local, not federal, but the principle is the same), and he wants to protect his turf.

Paul|1.31.07 @ 1:06AM|#

Let's not forget why Joe is so vehement about this: in his day job, he's one of those bureaucrats[...]

As painful as this is to say, joe can keep his day job. Our elected officials need to be passing the regulations which are LAWS under a weak-tea name.

Guy Montag|1.31.07 @ 1:17AM|#

David,

You mean to tell me that joe is not even an inner-party member? He is just a low-level Commie?

UGH!

Guy Montag|1.31.07 @ 3:25AM|#

I wish you guys would get to work earlier. Detering terrorists gets kind of boring at 0325 on a Wednesday.

What time does the next Ann Coulter article post?

Guess I will go peek at the Corner for a bit.

Michael Hampton|1.31.07 @ 6:07AM|#

You aren't the first person to have this idea. It's the idea behind Downsize DC's Write the Laws Act.

|1.31.07 @ 7:01AM|#

I've only got 7 days in my week.

Well, you do until Congress votes on it, anyway.

|1.31.07 @ 7:03AM|#

I'm with Radley; federal regulations are a massive, contradictory and inconsistent mess. Bush should have been working on ways to rationalize the mess from the day he set foot in office. Yeah, he's more than a day late and a dollars short, but this is still a good start.

And if Congress wants a piece of the action - as it should, it's responsible for enacting all of the inconsistent laws in the firt place and then punting to regulatory agencies to make the real laws - it should step in and start rewriting laws.

The regulatory process is a thicket that has long been an invitation to abuse for the benefit of special interests - abuse that of course was very apparent under this administration. This will shift some power from the regulatory agencies to the administration, but creating a clearer locus of responsibility is a good idea. Alot of good can come from this initiative, and Congress will always have the right to make corrections.

|1.31.07 @ 7:11AM|#

Article I, Section 1:
"All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

Let's read that again, slowly. ALL...LEGISLATIVE...POWERS are given to Congress by our Constitution. It's the first thing in there after the preamble, so it's kind of hard to miss. Any vesting of lawmaking powers in any other body requires an amendment to the Constitution. Congress can no more pass a bill delegating its lawmaking authority than it can pass a bill raising the voting age to 21. Both are equally unconstitutional. And I don't care whether you call it a "regulation" or a "standard" or whatever: if you can be fined or arrested for violating it, then it's a law.

|1.31.07 @ 7:12AM|#

["Given that federal regulations carry the force of law..."]
{--Radley Balko}

_______


Exactly.

There is no difference between a "law" and a "regulation".

They are both commands from the government, backed by police power.

From a citizenry -- perspective they are identical.

The term 'regulation' is used as a subterfuge so that 'laws' may be enacted & enforced outside the formal (constitutional) legislative process.

All Federal regulations are therefore illegal (non-constitutional) from the get-go.

However, this 'regulatory' charade is enormously successful in evading the law.

You've been duped & exploited to even accept the term "regulation".

|1.31.07 @ 8:06AM|#

Scientific truth isn't based on a popularity contest..

Scientific 'truths' may also depend on the branch of science...correlations are hallmarks of social science, for example. Causation might be a more reasonable expectation in, say, chemistry. Regulating based on a 'truth' therefore, might reasonably be expected to require the subjective values of the people be applied...through accountable representatives.

|1.31.07 @ 8:11AM|#

Congress can no more pass a bill delegating its lawmaking authority than it can pass a bill raising the voting age to 21. - Chuck

I agree with your point, but the voting age is a bad example. Congress tried just that in the 1970s.

The Eighteen-Year-Old Vote

In extending the Voting Rights Act of 1965 in 1970 Congress included a provision lowering the age qualification to vote in all elections, federal, state, and local, to 18. In a divided decision, the Supreme Court held that Congress was empowered to lower the age qualification in federal elections, but voided the application of the provision in all other elections as beyond congressional power. Confronted thus with the possibility that they might have to maintain two sets of registration books and go to the expense of running separate election systems for federal elections and for all other elections, the States were receptive to the proposing of an Amendment by Congress to establish a minimum age qualification at 18 for all elections, and ratified it promptly. - Annotation to the 26th Amendment, at Findlaw

See also Oregon v. Mitchell at Findlaw.

Now, did I think at the time that the Congressional power to regulate qualifications for Federal elections was used as a lever against the States? Yup, but the federal principle was a hell of a lot clearer in Oregon than the bribery/blackmail schemes involved with the 55 mph speed limit, the drinking age, or the "Real ID" act. I was also in agreement with those who supported the lower voting age especially because we still had a draft then. The "old enough to fight, old enough to vote" argument had some resonance with me. Mind you, I think that ending the draft was the wiser move.

There is also a history of the "legislative veto" of promulgated federal regulations, struck down in INS v Chadha.

Plainly, in order for regulations to be properly adopted with the force of law, they need to be subjected to an up-or-down vote of both Houses, and avoid a Presidential veto. I wouldn't think there would be any obstacle to do that in some monster omnibus bill, though. That would mimic the budget process, with similar opportunities for mischief or worse.

Kevin
(No reliance promised, as IANAL.)

|1.31.07 @ 8:33AM|#

I know this is late in the game to comment, but Radley, that was a great post.

|1.31.07 @ 9:03AM|#

Some people miss the point of the post entirely and immediately steer the debate into tangential points.

Regulation is not always unnecessary.
Federal regulation is very often confusing, obscure, and redundant. Nowhere is mentioned state/local regulations.

|1.31.07 @ 9:20AM|#

Only problem with getting Congress to vote on each regulatory issue is that they don't even read the laws they write themselves as it is. So this approach would solve what exactly?

Plus I have no seen many politicians ever be held to account for anything.

Regulation is out of control, but then again name any government born entity that isn't?

|1.31.07 @ 9:22AM|#

David,

I haven't worked for the government for over a year.

Try again, troll.

Christopher Monnier|1.31.07 @ 9:32AM|#

We need a "Read the Bills" act:

http://www.downsizedc.org/read_the_laws.shtml

|1.31.07 @ 9:33AM|#

Robert,

"I see no reason gov't needs any scientific information at all. No matter what they decide, someone's going to like it and someone else is going to dislike it. What's the difference what their reasons for liking or disliking it are?" What are you, kidding me?

Like, who's to say that keeping a town from flooding is any better than drowning everyone in it? That's just, like, your opinion, man. This is just a dodge.

Will Allen,

Unlike the above, your point is a legitimate one. The neen for the sovereign public to have oversight of its government is real, but it is in tension with the need to have credible, quality expertise in the execution of public work. We resolve this tension by strictly limiting the scope of the work we give to unelected civil servants, to the performance of defined tasks in accordance with the directions given to them by the political branches.

gaijin,

"Regulating based on a 'truth' therefore, might reasonably be expected to require the subjective values of the people be applied...through accountable representatives." Exactly - Congress establishes a law based on its values, and is highly accountable to the public. The executive then implements those laws, which is by definition a process of determining how the intent of Congress applies to particular situations.

|1.31.07 @ 9:49AM|#

Robert,

If there really are no objective standards for determining the value of ideas other than the political popularity contest, then why are you a libertarian?

|1.31.07 @ 10:28AM|#

joe, you have a rather interesting concept of what constitutes "strictly limited scope".

|1.31.07 @ 10:56AM|#

Back to the original point, Bush's proposal won't do a thing to "make the executive more executive," to reduce the ability of agencies to promulgate regulations, or to put their authority in the hands of the legislature.

It would just add a layer of ideological review within the promulgation of regulations, review controlled by the chief executive.

All of the additional politicking, with none of the legislative-branch review you people are calling for.

grylliade|1.31.07 @ 11:15AM|#

How's this: Any regulations that are strictly necessary are devolved to the state or local level. That way, when it comes time to talk about the issues that affect your life, you have at least some small hope of affecting the decision. Given joe's example of the level of chemical z in drinking water, let the state or, better yet, the local government make the decision, based on the best available science. That way, Congress doesn't have their time taken up by wading through the morass of federal regulations (all in all a good thing, despite the benefits of an occupied Congress), and we actually have some debate about the issues.

Part of the problem is that a lot of the regulations made aren't based on science, per se. They're based on conflicting and vague studies, one of which has to be chosen to be the "best science available." Then, rather than ever revisit that decision based on new studies, more often than not the regulation takes on the force of habit. What if the 4 ppm level is too low? I mean, what if 40 ppm is an absolutely safe level, and hundreds of millions of dollars are being wasted each year keeping it at 4 ppm? Under a regime where different communities can set different standards, we'd at least have a chance that a few of those communities would change their standards. Under the present situation, the 4 ppm level will never change, because sure as shit someone will come along and scream about how changing the level would endanger the public, and what Congressman or bureaucrat would want to risk that?

It's certainly not a perfect solution; I can see all kinds of problems with it. But I think it's closer to perfect than the present system.

|1.31.07 @ 11:54AM|#

I've always thought the delegation of what is for all purposes legislative authority by Congress to administrative agencies was grossly unconstitutional.

Robert|1.31.07 @ 11:05PM|#

"Like, who's to say that keeping a town from flooding is any better than drowning everyone in it? That's just, like, your opinion, man."

Of course it is, because it will have costs. How much is it worth? Somewhere between 0 & infinity, but the amount is a matter of opinion, not of fact.

"If there really are no objective standards for determining the value of ideas other than the political popularity contest, then why are you a libertarian?"

Hey, why not, gotta have some opinion, right? Not fact, just opinion.