Congress and the Constitution by Dr. Kevin Porrteus

Dr. Kevin Porrteus is Associate Professor of Politics at Hillsdale College.  He wrote this article, Congress and the Constitution, in September 2011 about how Congress evades the Constitution by giving the legislative ability to newly created government agencies.  America is now being ruled by people who were not voted upon by the people and passing rules that have the force of law without going through the Constitutional process.  This is a death blow to our Republican form of government.

Excerpts below.  Bolding is mine.

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The larger problem with these regulations is not that these agencies are abusing their rulemaking power; the problem is that these agencies possess rulemaking power in the first place. Administrative agencies are exercising authority which properly belongs to Congress.

The Constitution is unmistakably clear. Article I, Section 1 states that “All legislative Power herein granted shall be vested in a Congress of the United States….” If the power is legislative, and if the power is granted to the federal government by the Constitution, then the power must be exercised by Congress, and only by Congress. Congress is nowhere authorized to transfer the power to make laws to any entity. Only Congress is constitutionally empowered to make laws.

Moreover, Article I, Section 7 mandates that any action of the federal government, which has the force of law, must be enacted according to the specific process enumerated therein. Both houses must approve, and the bill must be sent to the president for his signature. His veto may be overridden, but only by a supermajority in each house. The very act of enacting rules on the part of the EPA or any other agency is thus a violation of this provision of the Constitution, because it deviates from this process.

Each of these provisions reflects the reasoned judgments of the authors of the Constitution regarding the safest and most effective way to make laws. Members of Congress can be held accountable for their actions through the electoral process, while the regulators never face the voters. There is no more important check on abuse of power than regular elections. Conversely, regulators are easily pressured by special interests because they cannot claim the public support that flows from having been elected by a broad-based constituency.

“Rulemaking” is simply a technical legal term for legislating when it is done by administrative agencies, rather than Congress. Alexander Hamilton noted in The Federalist that “the essence of the legislative authority is to enact laws, or in other rules to prescribe rules for the regulation of society.” By Hamilton’s standard, it would be absurd to classify the ten aforementioned regulations as anything but laws in everything but name. Whatever one calls them, the power involved is legislative. Rules made by agencies are the functional equivalent of laws in every sense, except that they are not called laws and they are not enacted by Congress.

The modern regulatory process is the result of the influence of progressive political thought on the practice of American government. Progressives sought to partition legislation and regulation. Woodrow Wilson, for instance, held that “the distinction is between general plans and special means.” The progressive public intellectual Herbert Croly argued that modern lawmaking requires technical expertise and independence from partisan politics. The best Congress can do is to dictate the goals, and “the duty of drawing up a set of regulations…is intrusted to a commission.” It is the means, however, that constitute rules for the regulation of society. Acting under this theory, vast swaths of legislative power have been transferred, or delegated, to administrative agencies.

Congress and the legislative process articulated in the Constitution are precisely calibrated to promote genuine deliberation about public policy, while ensuring the will of the people is adequately represented and the rights of the people are not sacrificed. When lawmaking is done by agencies, it fails on all these counts precisely because it rejects these basic constitutional tenets.

The modern regulatory process and administrative agencies are the creations of Congress; they can therefore be altered by Congress. The problem of regulatory abuse and excess will never be solved until we realize that the problem is rooted in the way legislative power is exercised in America today and that Congress itself, as the creator and enabler of regulatory agencies, is the cause of the problem.

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There’s a famous story that Benjamin Franklin, after the Constitutional Convention, was asked what type of government they had decided upon.  He said, “A republic; if you can keep it.”

We the people, if we wish to remain free, must be eternally vigilant.  We are failing by allowing these agencies to continue regulating us unconstitutionally.

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