Post-Loper, Congress must rein in the bureaucracy

 

The Supreme Court has spoken, but Congress must act.

This is the most important takeaway from the court’s ruling in Loper Bright Enterprises v. Raimondo. The justices ended the foolish practice of judicial deference to a federal agency’s “reasonable” interpretation of ambiguous laws known as “Chevron deference.”

The ruling will help block the vast federal bureaucracy from abusing its power, but agencies will continue to threaten Americans’ freedom and prosperity by violating a bigger constitutional principle. Agencies can still issue sweeping and costly regulations without congressional signoff. Congress must reclaim its legislative power and restore America’s system of checks and balances.

The first words of the Constitution’s first article are clear: “All legislative Powers herein granted shall be vested in a Congress of the United States.” The founders wanted neither the executive nor judicial branches to do the work of writing laws, focusing instead on their respective (and equally nontransferable) duties of enforcing and interpreting the law. Yet the founders didn’t foresee the rise of the federal bureaucracy to which Congress has granted vast legislative powers over the past 140 years — the Constitution notwithstanding.

...The Supreme Court’s ruling against Chevron deference, while important, doesn’t restore Congress’ rightful role as the author of America’s laws, including the regulations that have the force of law. Fortunately, Congress can effectively restore constitutional government — simultaneously protecting freedom and fiscal sanity — by passing a law that requires congressional approval of costly regulations before they go into effect.

Congress took a baby step in that direction by passing the Congressional Review Act in 1996. That law allows the House and the Senate to pass a joint resolution that repeals a regulation within 60 days of its realization. But the resolution must then be signed by the president, and if the president vetoes it, the original regulation remains in effect. That’s constitutionally backward. If a regulation can’t pass Congress, then it should never have the force of law, regardless of what the president thinks.

...But ultimately, the REINS Act is about restoring the checks and balances that are an essential bulwark of Americans’ freedom. The Supreme Court just began reining in the federal bureaucracy. Now Congress needs to restore true constitutional government...

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