Government shackles

Mission creep of the administrative state

When most people think of the ways government affects or controls them, taxes may be the first thing that comes to mind. We all pay them, and we all understand their impact.

Government regulations, however, may fly under the radar, although they can be even more devastating. Typically, they hamstring regulated businesses, industries, professions and, in some cases, individuals with burdensome, restrictive government shackles.

The familiar term “rules and regulations” is vague and often not well understood. Just what are these regulations? Where do they come from? Who makes them? What are their parameters and limits?

Simply stated, most regulations stem from administrative rules crafted by agencies in the executive branch of government at both the federal and state levels. Others govern professions and are often crafted by the boards that license and oversee practitioners’ practice of their professions. In both cases, this often occurs without legislative oversight or express permission.

So, how did it come to be that unelected employees in what is often referred to as the “government bureaucracy” were entrusted with such power?

It began, at the federal level and in many states, with the passage of the Administrative Procedure Act. It empowered administrative agencies to promulgate rules, which typically carry the force and effect of law.

How can this be when most people understand that it is the legislative branch of government (not the executive) that is constitutionally empowered to make laws?

Congress and state legislatures have, in essence, delegated (at least in part) their most important function: making law. What’s even more concerning is the fact that many regulations “fly under the radar” with little notice until their often-burdensome effect upon those they regulate becomes unbearable.

When that occurs — which is often too late for the person, business, or entity being regulated — complaints to legislators often result. In several states, there’s not much legislators can do about it, but when legislatures have delegated too much authority to bureaucrats with little or no oversight, that is the consequence.

Legislative bodies — both federal and state — can correct this if they choose. After all, they’ve delegated what is clearly their constitutional authority to an entirely different branch of government.

That means they can reclaim that authority by eliminating the delegation, but few legislative bodies seem to have either the courage or the inclination to do so. Legislators can and should reclaim or, at least, oversee the power they’ve delegated.

Congress seems reticent to do so. It may be more comfortable to allow federal agencies to promulgate crazy regulations and simply hide behind the resulting finger-pointing, claiming that it wasn’t Congress that caused the problem, but some infamous federal department.

Several states are actually doing something about the problem. For example, North Dakota and Idaho have both taken steps to effectively exercise such oversight.

Idaho now sunsets all regulations before each legislative session. Its Legislature must then reauthorize any administrative rules it chooses to continue before the session begins. Those that aren’t so authorized are simply, in effect, repealed. It’s a creative but relatively recent solution.

Long before states such as Idaho devised methods to deal with the problem, North Dakota was ahead of the curve. Legislation passed in 1995 has become a model for the nation, with many states emulating it and even Congress (without ultimately acting, of course) at least taking note.

It empowers the North Dakota Legislature, through its Administrative Rules Committee, to oversee proposed regulations before they take effect. In many cases, concerns are resolved through mutually agreed revisions to problematic proposals. Absent such agreement, when “push comes to shove,” the Legislative panel has the legal authority to void rules that don’t comply with the criteria spelled out in law.

These may be the most powerful tools the people in states like North Dakota and Idaho, and those they elect to represent them, possess to ensure that regulations do not run amok, infringe upon their rights and freedoms, or go far beyond the intent or scope of any law.

If exercised properly, legislators in states like these can effectively protect the freedoms of the people they represent, the businesses they own, and the professions they practice. It’s a concept that some other states have, and even more states should emulate. After all, the frightening alternative is to continue to allow nameless, faceless, unelected, unaccountable bureaucrats to look out the window of the ivory tower, smile, and say, “I think I’ll make a law today.”

That should strike fear into the hearts of all freedom-loving citizens.