Government Control Thyself

Commentary by Pete du Pont

Recently, federal courts, including the Supreme Court, have begun to take more seriously their responsibility to act as a check on the federal government via judicial review. After President Franklin Roosevelt threatened to pack the Supreme Court over its refusal to find his depression-era New Deal policies constitutional, the court largely abdicated its responsibility to constrain federal legislative reach within the Constitution's limits.

The result: for more than 50 years the U.S. Congress has been allowed to delegate legislative authority, including the power to levy taxes, to unelected bureaucrats in administrative agencies; and, under a liberal interpretation of the Constitution's "commerce clause," to pass laws that violate federalism (the principle that the federal government is limited to a carefully defined role in solving problems beyond the effective control of the individual states, and that in purely intrastate regulatory matters, only the states should establish and enforce regulations).

In a series of decisions that have surprised many legal experts, federal courts have begun to reverse course. In U.S. v. Lopez (1995), the Supreme Court struck down a federal law that prohibited possession of a gun within 1000 feet of a school. The court found that the federal government had overstepped its constitutional power to regulate interstate commerce and meddled in matters best left to the states. Congress had failed to show a reasonable nexus between mere possession of a firearm within 1000 feet of school and commerce.

In a 1996 decision, the Supreme Court reaffirmed in Loving v. U.S. that "the lawmaking function belongs to Congress...and may not be conveyed to another branch or entity." This ruling is likely to be used in challenges to federal agencies' attempts to impose taxes in the form of fees based on vague statutory authority. For instance, the Federal Communications Commission has proposed imposing a new 5 percent federal tax on long-distance phone bills to pay for universal service and Internet access in poorer schools.

Most recently, in May in American Trucking Association v. EPA, a federal appeals court struck down the Environmental Protection Agency's new air quality standards -- regulating the amount of ozone and particulate matter in the air -- as unconstitutional. The standards were to be phased in over six years, beginning this year. But in a 2-to-1 decision, the court said the EPA's process of setting the standards amounted to an unconstitutional delegation of powers by Congress - more specifically, the court found that the EPA failed to articulate or offer an "intelligible principle" for its authority to set the standard.

More good news seems on the way. Congress evidently feels empowered to rein in regulatory discretion and live within its own constitutionally delineated bounds. For instance:

Rep. J.D. Hayworth (R-Ariz.) and Sen. Sam Brownback (R-Kan.) reintroduced their "Congressional Responsibility Act," which would require Congress to approve major agency rules and regulations before they become binding.

Rep. George Gekas (R-Pa.) introduced the "Taxpayer's Defense Act" which would stop any tax levied by an administrative agency from going into effect unless Congress formally approves - thus upholding the principle of "no taxation without representation.

Sen. Fred Thompson (R-Tenn.) and Sen. Carl Levin (D-Mich.) have offered the "Federalism Accountability Act," which would require that Congress and regulatory agencies explicitly state the extent to which a bill preempts state or local laws and specify the reasons and constitutional authorization for doing so.
These reforms would increase accountability in three ways. First, regulatory agencies would finally have to justify their rules before the sole body of government charged by the Constitution with writing law. Thus agencies won't be able to interpret congressional intent in ways that increase their budgets and staff and expand their power while improperly preempting state laws. Second, it will not be as easy for Congress to pass the buck for bad regulations, because it will have the obligation to review regulations before they become law. If costly and ineffective regulations do become law, the voters can hold legislators accountable. Third, states and localities would be authorized to challenge federal rules which improperly preempted current state or local laws - by not being explicit or by misidentifying proper constitutional authority.

Individual liberty and unlimited government are incompatible. Recent court decisions have set us back on the path of a government of specifically delegated limited powers split between federal and state governments. Now it's time for Congress to do its fair share to uphold the Constitution by reclaiming its sole authority to legislate and by limiting the scope of the laws it passes. This would be the best legacy we could leave to future generations.



The National Center for Policy Analysis is a public policy research institute founded in 1983 and internationally known for its studies on public policy issues. The NCPA is headquartered in Dallas, Texas, with an office in Washington, D.C.