...But if Congress won
t act soon to protect future generations, I will. I will direct my cabinet to come up with executive actions we can take, now and in the future.
President Barack Obama February 2013
I am not a friend to a very energetic government. It is always oppressive.
Thomas Jefferson to James Madison, December 20, 1787.
Introduction: Can Executive Power Expand Liberty?
President Barack Obama’s
2014 State of the Union Address capped many weeks during which he and his staffers touted a
pen and phone
As the opening quote indicates, the president promised on numerous occasions to use his office to facilitate federal government action in critical segments of economic and social life such as health care, financial services, infrastructure, the environment, scientific research and manufacturing.
The release of the Office of Management and Budget’s (OMB)
offers an opportunity to reaffirm the usefulness of muscular regulatory review of federal agency regulations, in an environment in which the executive branch instead champions significant federal involvement in economic and social matters. The United States is recognized as a limited representative republic with certain defined powers, administered by separate governmental branches that offset one another. Over decades the nation has transformed into an administrative state wherein unelected officials rather than Congress make increasing numbers of laws, and interpret their meanings as well. There were 72 laws passed by Congress in 2013; meanwhile agencies issued 3,659 rules and regulations (a multiple of 51). Federal Register public notice and comment for these thousands of rules and regulations (established by the Administrative Procedure Act) is only a partially adequate safeguard since even the limited discipline of APA rulemaking disregards regulatory dark matter
like agency guidance documents, memoranda, notices and bulletins in the Federal Register that have legal effect but little or no oversight.
(Examples of guidance include Environmental Protection Agency (EPA)
Clean Water Act jurisdictional guidance on “Waters of the United States,”
Federal Trade Commission’s
guidance on disclosure of paid search engine results,
and waivers of the Patient Protection and Affordable Care Act.) In the first instance it was inappropriate for Congress to delegate such sweeping powers to bureaus. To the extent overregulation exists, Congress enabled it, and only Congress can fully reverse it (or alternatively a convention of the states could). As it stands, executive branch overreach alarms those across the left/right political spectrum. This is illustrated in reactions ranging from a House Republican lawsuit against the president to Georgetown law professor Jonathan Turley
’s testimony to the House Judiciary Committee that “
We are in the midst of a constitutional crisis with sweeping implications for our system of government
The executive branch today and in the future should subject regulations and interventions to greater scrutiny and transparency, and go beyond that by paying heightened attention to impacts