Two for One is Dumb. Three Branches is Smart

Trump signs ‘2-for-1’ order to reduce regulations

Study: Trump has eliminated $86B in regulations

Seven regulations targeted by Trump

Trump White House tells agencies to halt regulations

Wrong, wrong, wrong! This is not the way to build a legacy. Ask the last president.

Regulations persist because interest groups know how to exploit them for their own gain. These groups dismiss the wrack-and-ruin this brings to our political system, and the erosive effect their gains have on our freedoms.

So give ’em what they want. Punish them with their own regulations. Unleash hundreds if not thousands of punitive actions. Make clear the choice between dismantling the Regulatory State, and tyranny.

FDR’s legacy was the Administrative Procedures Act (APA) the legal basis for today’s Regulatory State. Tomorrow’s legacy goes to the president who signs the Administrative Restructuring Act (ARA), which puts the rule of law back into Federal rule-making.

Contents

  1. Two for One is Dumb. Three Branches is Smart
  2. The Problem with the Regulatory State
  3. The Administrative Restructuring Act (ARA)
  4. Abuse the System
  5. No Way!
  6. Closing

The Problem with the Regulatory State

The Regulatory State aka The Administrative State aka The Federal Bureaucracy consists of the many dozens of executive and independent agencies that write and enforce Federal regulations. It’s a state within a state: many dozens of states each with their own lawmaking, judging and policing arms.

Each agency is subject to statutory limitations (i.e., their constitution), but are quite unbounded within their remit, not having to respect our hard won legal protections.

‘…any violation of this title or the regulations promulgated hereunder is subject to criminal penalties’

No due process. No trial by jury. No separation of powers. No voting on rules. Retroactive application of rules. No voting the bums out. Threats and intimidation (e.g., guidelines). Legal precedents established using cost-benefit calculations.[1]

The deeper problem with the Regulatory State is it fools presidents into thinking they’re doing something useful when they create (or rescind) regulations. And, it fools Congress into thinking they’re doing their job when they pass overly broad legislation leaving the dirty work to unelected officials. And, it fools the Courts into thinking agencies are better able to adjudicate their own vague, technical rules: Courts deferring to agencies instead of watching out for our freedoms.

Everyone gets a free pass to avoid the ugly truth of today’s political polarization. Why fix the system if I can deliver on my campaign promises using an unelected bureaucracy? With pen in hand I get a great photo op . When you win, you can do the same, even reversing my rulings.[2]

The Administrative Restructuring Act (ARA)

Draft a master plan to split the Regulatory State into its legislative, judicial and executive functions, sending each to its respective branch of government. The ‘expertise’ of agencies is just folks and can be housed anywhere.[3] This is the core of the Administrative Restructuring Act.

The master plan charts out staffing, organizations, budgets, enabling legislation and a roadmap to supportive Supreme Court victories. Cement this restructuring in place.

Focus the plan on the integration and operation of transferred Agency functions in their new homes. We don’t want the actual bureaucracy replaced by a ‘virtual’ bureaucracy. Congress must vote on regulations (both houses). Judges must follow due process. Presidents must faithfully execute the law.[4]

Tailor the plan by agency and subagency: EPA, DoD, FDA, etc. Do Guantanamo detainees go through the civilian courts?

The master plan may retain some of today’s pending reforms but only to the extent they fit within the overall scheme of the ARA, and they do not impede the president’s program to abuse today’s regulatory system to force enactment of the ARA.

Abuse the System

Today President Williams, with his Attorney General, announced a series of major regulatory actions, the result of which:

President Williams promises a steady stream of regulatory actions until his demand is met for passage of the Administrative Restructuring Act.


Deliberately, publicly and blatantly abuse the current Regulatory State for political gains. Develop a hit list of political enemies (e.g., contributors to the other party, NGOs, law firms, universities, media) and pursue a regulatory agenda that best targets these enemies. Work closely with the DoJ: fines are nice but jail sentences are nicer.[5]

Use all the tools of the Regulatory State: rule-making, adjudication and enforcement (or not). Don’t forget those guidelines! Use ‘guilty until proven innocent’ aka disparate impact. Play matchmaker between bootleggers and Baptists. Go agency shopping. Sprinkle in a few presidential pardons.

Have a robust waiver program for supporters. In fact, exploit the Regulatory State to reward supporters. Practice mission creep (e.g., FDA regulation of tobacco? Okay, then HUD funding of a border wall). Solicit supporter advice on possible new missions.

Adopt a skinny legislative approach.[6] This makes blatant the absurdity of having an unelected Regulatory State fill-in-the-gaps on legislation. It makes urgent the need to shut down the Regulatory State before the other side wins and usurps the skinny approach for its own legislation.

The courts will strike down some of the abuses. That’s okay. The intent is to show how the reach of the Regulatory State can lead to tyranny when placed in the right hands. The intent is to raise an across-the-board clamor for passage of the ARA.[7]

No Way!

I don’t want some lawyer deciding what’s needed for airline or nuclear industry safety! The reason we have a Regulatory State is to build expertise and continuity in the face of congressional gridlock. We need a professional bureaucracy to look after us.

Within agencies, those who make the rules, rule on the disputes. How could we get a more knowledgeable judge? We put legislative, judicial and executive expertise into a single mind. We get things done quickly and efficiently. What, you never heard of transaction costs?

We don’t need to police each factory: just a few show trials, blog posts or enforcement actions and we get widespread compliance going beyond even our strictest standards. Firms don’t dare interpret our rules themselves: we can change interpretations midstream in a court case.

Closing

It’s a thing of beauty. You get to punish your enemies and for a worthy cause.

God help me, I do love it so! – General George S. Patton Jr.

We live in a house divided against itself. I place the blame squarely on the Regulatory State. It removes the need for politicians to bridge partisan divides. It allows them to default to extremes on issues. Comity gets lost.

Sure ‘separation of powers’ slows down rule-making. That’s the point. Rules made for us all, one-size-fits-all, should only be enacted when Congress can reach bipartisan agreement. Can you imagine Democrats and Republicans actually listening to each other? Must be something important.


1. Businesses won’t fight on a tilted field. They routinely settle agency disputes with consent decrees, which in turn legally binds the rest of the industry. It’s a frustrating and pernicious cost-benefit calculation that encourages firms to send money to their K Street henchmen.

2. Businesses, especially new or small businesses, get whiplashed by changes in the rules when administrations change. Small companies get ‘out-competed’ based solely on advantage in regulatory compliance that come from size (e.g., costs for a robust legal team to keep up with these changes).

3. We have federal bankruptcy courts, so we can have environmental courts, FDA courts, etc., each with expertise in their domain.

4. Perhaps the clearest indictment of the current regulatory system is presidents don’t feel duty-bound to enforce its regulations (e.g., not collecting the statutory tax obligation in ACA, DAPA & DACA exemptions).

5. Employ one-size-fits-all regulatory actions that just happen to fall more heavily on political opponents. Avoid Lois Lerner moments.

6. The ACA contained 2,700 pages of legislation which ballooned to 11,000 pages of regulation. So what’s the big deal in going from 1 page to 10,000?

7. The abuse-the-system approach showed its potential for igniting a reform movement under the Obama administration. His administration spawned a growth industry in think tanks working to rein in the Regulatory State. But the Obama administration was timid. What happens when this approach is practiced by a more assertive Executive branch?
Nixon’s abuse of spending authority, though not meaning to call for reform, spawned bi-partisan support for fundamental reform, Title X, The Impoundment Control Act of 1974 .

 

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