How Congress can tame the administrative state
Overseeing regulations is not built into Congress's workflow.
The administration of Joseph R. Biden has enacted a record-setting number of consequential regulations this spring, according to an analysis by George Washington University. In April alone, 66 “significant” final rules were finalized — meaning they “have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.”
All told, Mr. Biden’s administration has issued nearly 250 significant rules since taking office in 2021, a pace that far exceeds any previous president. Big rules are not the only rules being produced by Mr. Biden’s executive branch. The same report tallies an average of 262 rules per month during the President’s term.
Regulations have the effect of law, and the Biden administration has used them to impose policies on major issues that are important to the Democratic party. Recent rules, for example, goad automakers to produce more electrical vehicles, forgive student loans for some borrowers, and reclassify many independent contractors as employees entitled to overtime pay and other federally stipulated benefits and protections.
Whatever one thinks of these policies, making them through regulations circumvents Congress. Indeed, presidents often unabashedly enact regulations contrary to the express will of Congress. Consider Mr. Biden’s efforts to cancel the loans of former college students or Barack H. Obama’s curbs on natural gas “fracking,” both of which were adopted despite the opposition of a GOP-controlled House. To be sure, Republican presidents do the same. Donald J. Trump, for example, sought to alter migrant asylum policies despite the howls of the Democrats holding the lower chamber. In each of these instances, the president could not get a statute through both chambers and chose to impose their policies through rulemaking…. (Read more)
Congress clearly needs to expand its capacity to monitor and study regulations and act where necessary, either through the appropriations or reconciliation (where appropriate) processes or, of course, the Congressional Review Act. This is especially important given Chevron's likely impending demise. However, first, it must stop delegating remarkably broad rulemaking powers to agencies. The Administrative State is too big and too powerful, and Congress has only itself to blame.