Courts, lawmakers, and the next POTUS can limit the power of the administrative state.

The Battle Against Bureaucratic Supremacy

In many ways, the power of regulatory agencies ‍is reaching unprecedented levels. The impasse often seen in partisan politics, paired with the vast ‍emergency​ powers leveraged during Covid, has resulted in an increasing number of directives being issued⁢ by unelected anonymous agency personnel rather than our elected ​representatives.

Those who believe the premise⁢ that legislation is the sole domain of the legislative branch are poised for a ⁢harsh reality check. Perhaps‍ it’s ⁢high time⁣ we​ revise ⁤“Schoolhouse⁢ Rock’s” “I’m Just a Bill” to the more truthful, albeit considerably less memorable, “I’m Just a Regulatory​ Mandate.”

If you look closely, however,‍ a glimmer of hope is faintly shining through the cracks as the administrative state faces​ its most significant​ opposition ‌in decades. Without a doubt, the ​administrative state is a formidable foe, and one should⁣ certainly temper his enthusiasm. Nevertheless, there is room for cautious optimism as a three-pronged attack,‌ one from each branch of government, is​ emerging against the reign of bureaucratic supremacy.

Judicial Branch

The judicial branch shows the most promise, of course, as the‌ Supreme Court ⁤has delivered serious blows ⁣with recent opinions — and is poised‍ to significantly rein in Chevron deference.

Last year, in West⁢ Virginia v. EPA, the court rightly concluded what many common-sense⁢ observers have known for years, which⁤ is that federal ⁢agencies cannot ⁤simply ​grant to themselves any power they please simply because they claim to be pursuing valuable goals. While reasonable‌ people can ‍argue about the merits of various environmental ‌laws, most Americans would hopefully agree it’s the job of‍ Congress, not unelected ⁣officials in the Environmental Protection Agency, ‌to decide whether ​the agency’s ‍regulatory powers should be expanded.

The‍ EPA took another hit ⁢in May when the court ruled in Sackett v. EPA that the agency could not‌ unilaterally redefine the definition of navigable waters in a way that vastly increased‍ its regulatory ⁢reach‌ over millions more acres. To be clear, these were ⁤not​ battles ⁤on what ⁢is good ⁢environmental policy but rather on who gets to call the shots: the people’s ​representatives or unelected government ⁤bureaucrats.

Executive Branch

While‌ the judicial⁤ branch is racking up wins, the⁢ executive branch proves to⁤ be the ⁣weakest ⁤of the three-pronged attack with no substantive action. Understandably, the⁤ home of the administrative state⁤ is unlikely ⁢to relinquish its power. Nevertheless,⁤ the rhetoric on the campaign trail ⁢is hopeful. Former⁢ President Trump, Florida Gov. Ron DeSantis, and political newcomer Vivek Ramaswamy have made dismantling the administrative state part of their ​platforms.

This may only be rhetoric,‍ and we’ll ⁢see if any of them ⁤follow through if elected. Once in office, politicians find it challenging to relinquish power while keeping and fulfilling all of the promises they’ve ‍made on the campaign​ trail.

Legislative Branch

Finally, there’s the legislative branch — which has been far too complicit⁣ in allowing the administrative state to expand⁤ without accountability. Congress​ willingly punts tough decisions that necessarily demand ‍tradeoffs⁤ between competing goods, and allows unelected bureaucrats ⁢to decide those tradeoffs ‌instead.

It’s the​ job of agency technicians to implement congressional laws governing forest protection, for example, or energy conservation. It’s the job of Congress, meanwhile,‍ to represent the people when passing those laws, doing their best to balance, say, economic growth with environmental​ protection.

When Congress avoids making those decisions, it ‌leaves it ⁤up to people⁣ nobody elected. That’s not how a republic is supposed⁤ to work, and it’s not what lawmakers were hired to do.

Thankfully, we are finally seeing lawmakers taking steps to ⁤regain ⁣their constitutional authority. The House recently passed the Regulations from ⁣the Executive in Need of ​Scrutiny⁣ Act, or the REINS Act. This would require⁢ congressional approval before⁣ implementing a regulation with “an annual effect on the economy of $100⁢ million or more.”

Although the REINS Act is unlikely to pass the Senate or receive a signature from President Biden this year, this is the most sizable legislative movement⁤ against the administrative state ⁢in years.

Further, as ‌is often the case with policy movements, state capitals contain even more optimism, with state lawmakers continuing to⁢ lead⁢ the way in fighting back against administrative ‌rule. Florida and Wisconsin have passed‍ state-level REINS Acts, with⁤ more states poised to follow⁣ suit.

The fight⁤ against the federal behemoth is far from ⁣over, but‌ those who believe ⁣in the separation of powers have good ⁢reason to hope. The administrative state is losing ground in the courts, and momentum is gaining in the legislature.

Good ‍news in politics ​is rare. Enjoy the victories, ‌even the small‌ ones.