The decade of the 1970s gave Americans many great things. Remember the Crying Indian ad? “People start pollution, people can stop it,” that PSA said. And, to a remarkable extent, we have.
Rivers that were once polluted enough to catch fire now run clean. “I never thought I would see in my lifetime, let alone in my career, such an amazing comeback of a river,” Steve Tuckerman, the Cuyahoga River specialist for the Ohio Environmental Protection Agency, told The New York Times in 2009. And yet we did it.
The 1970s also gave us Schoolhouse Rock, which explained how a bill becomes a law. In that telling, Congress would carefully consider a bill, pass it through both houses and send it to the president. If he signed it, the bill would enjoy status as a law. But that isn’t the case as much anymore.
Recent laws, including Obamacare and Dodd-Frank, are not laws in the traditional sense. Rather than clearly explain what conduct is banned, these laws instruct executive branch officials to take action. Under Obamacare, “there are more than 700 instances in which the Secretary is instructed that she ‘shall’ do something, and more than 200 cases in which she ‘may’ take some form of regulatory action if she chooses,” Philip Klein wrote in 2010. “On 139 occasions, the law mentions decisions that the ‘Secretary determines.’”
We’re a long way from “I’m just a bill.”
This sort of legislative dodge gives great power to unelected bureaucrats. And that brings us to another relic of the 1970s: the Environmental Protection Agency.
EPA was launched as an independent agency in 1970, with the blessing of Congress and President Nixon. And indeed, there were plenty of environmental problems to be dealt with, although it’s arguable whether EPA was the proper venue. That’s because the agency often exercises the powers of all three branches of government.
EPA drafts regulations, enforces the regulations and, when there’s an objection, an EPA administrative law judge decides the case. It’s exactly what James Madison warned about in Federalist 47: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
Recently a federal court pushed back a bit. In August, the D.C. Circuit Court of Appeals set aside EPA’s “Cross State Air Pollution Rule,” holding that EPA doesn’t have the statutory authority to implement that rule. The decision sent Washington Post columnist Steven Pearlstein into a tizzy.
Pearlstein railed against “the business community’s penchant for whining about ‘regulatory uncertainty’ while spending tens of millions more to mount legal challenges to every new regulation,” he wrote, citing a “jihad” against the regulatory state. “Nowhere has this strategy been pursued with more fervor, or more success, than the U.S. Court of Appeals for the District of Columbia Circuit, where a new breed of activist judges are waging a determined and largely successful war on federal regulatory agencies.”
Um, “jihad”? This is far from a holy war. It’s merely a struggle between competing branches of government. And that’s exactly how our constitutional system was designed to operate.
“The great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives to resist encroachments of the others,” as James Madison wrote in Federalist 51. “The constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other.” And here’s a court doing exactly that: checking EPA.
Somebody needs to.
“During the three years of the Obama Administration, a total of 106 new major regulations have been imposed at a cost of more than $46 billion annually, and nearly $11 billion in one-time implementation costs,” wrote James L. Gattuso and Diane Katz in the latest version of Red Tape Rising. “The most expensive regulation of 2011 was imposed by the Environmental Protection Agency, which issued a total of five major regulations at a cost of more than $4 billion annually.”
All that red tape is a big reason the economy remains stuck in neutral. But Pearlstein doesn’t see it that way. “A government that can’t accomplish anything is a government that nobody will like, nobody will pay for and nobody will want to work for. For tea party conservatives, what could be better than that?” he wonders.
Let me suggest: A constitutional government. One that lives within its means. One that allows job creators to thrive. Those would be positive steps we can take, if the regulators will get out of the way.