A Regulation Freedom Amendment to Reign in Excesses of the Administrative State

A GUEST POST by Jeffrey Barrett

Jeffrey Barrett

The rise of the Administrative State over the last few decades is perhaps the greatest threat to America’s constitutional Republic.  The Administrative State describes a form of government which delegates massive discretionary lawmaking power to unelected bureaucrats in federal agencies who are then responsible for enforcing their own laws. Such a behemoth bureaucracy is also known as  “The Welfare State”, “The Entitlement State” or “Big Government”.  But by any moniker, it is at odds with a governmental structure of separation of powers, checks and balances along with voter input and oversight.  The Regulation Freedom Amendment is a means to tame the Administrative State and return it to constitutional principles.

The Administrative State arose from Congressional delegation of details of the laws which they passed with the result that the burden was unloaded onto a swarm of Executive Branch agencies that administer, regulate and even adjudicate frequently vague legislation.   By Congress handing wide discretionary authority to bureaucrats to create regulations, it effectively gives these agencies the power to create laws as these regulations have the same force of law as enacted legislation.  Political scientist Joseph Postell has described these bureaucratic leviathans as nothing less than a “fourth branch” of government.

A major problem with the Administrative State is a lack of accountability.  When elected representatives give unelected bureaucrats authority to make laws, voters have no control over the faceless, nameless Civil Service protected federal workers.

The Administrative State also deprives citizens of the vital constitutional protection of the Separation of Powers, as federal agencies enact the regulations which they then enforce and often adjudicate.

To illustrate the conundrum, consider an average citizen dealing with the IRS, a small farmer or landowner engaging with the EPA or a small businessmen dealing with OSHA.  Your imagination, or perhaps personal experience, should convey the true impact of such “arbitrary power”.

One might wonder what can be done to check the Administrative State. The Madison Coalition points out that Article V of the U.S. Constitution   gives  state legislatures the authority to bypass Congress and implement a new Constitutional amendment that will check the routine excesses of the federal bureaucracies. The Madison Coalition calls their proposal “The Regulation Freedom Amendment.”

The notion for the Regulation Freedom Amendment is that if 1/4th of the States (13 total) or 25% of either the House or the Senate questions a federal regulation, then Congress would be required to formally call on a vote on the matter.   Thus states can force Congress to take responsibility for any regulation which states find too expensive, onerous or inane and voters will have their federal representatives on the record.   If Congress chooses not to take a transparent (or potentially embarrassing) vote, then that particular regulation becomes null and void.

A Regulatory Freedom Amendment would nudge the political system away from the arbitrary governance of the Administrative State towards “responsible” representative government.  It would give States, who are frequently the victims of unfunded federal mandates from the Administrative State, to act as a constitutional countervailing check on power of the alleged “fourth branch” of government.  A Regulation Freedom Amendment would temper the arrogance of power that  prevails amongst bureaucrats at some federal agencies, as some who would see themselves as victims would now have a means of fighting back.

To put the Regulation Freedom Amendment in place, it would behoove concerned citizens to contact their State Legislators to push this Amendment as well as Faithful Delegate Laws (like the now law crafted by Indiana State Senator David Long (R-16th, Fort Wayne) ) to prevent worries  that there would be a runaway Constitutional Convention.   After passage of the Regulation Freedom Amendment, legislators would discover the power that states have to correct the imbalance of power between the federal and state sovereigns.

This is an abridged version of an article which originally appeared in The Washington Times and was republished with the permission of the author. 

h/t: Madison Coalition
     Washington Times
     Eric Allie