Fall­ing down on the leg­isla­tive job

Congress is largely re­spon­si­ble for its own dys­func­tion

The Washington Times Daily - - OPINION - By Richard W. Rahn Richard W. Rahn is chair­man of Im­prob­a­ble Suc­cess Pro­duc­tions and on the board of the Amer­i­can Coun­cil for Cap­i­tal For­ma­tion.

The ad­min­is­tra­tive state be­gan in earnest 130 years ago with the cre­ation of the In­ter­state Com­merce Com­mis­sion in 1883, which was a ma­jor power give­away by Congress to an in­de­pen­dent agency. From that time, Congress has con­tin­ued to del­e­gate law and rule­mak­ing to ex­ec­u­tive agen­cies, such as the In­ter­nal Rev­enue Ser­vice and the En­vi­ron­men­tal Pro­tec­tion Agency, and to so-called in­de­pen­dent agen­cies, such as the Se­cu­ri­ties and Ex­change Com­mis­sion, the Na­tional La­bor Re­la­tions Board and the In­ter­na­tional Trade Com­mis­sion. De­spite in­creas­ingly del­e­gat­ing and shirk­ing its con­sti­tu­tional re­spon­si­bil­i­ties, Congress has be­come more and more dys­func­tional in re­cent decades.

Over the last few weeks, many mem­bers of Congress, both Repub­li­cans and Democrats, have demon­strated that they do not un­der­stand their jobs or don’t care. One gets the im­pres­sion that many in Congress are not well schooled in Amer­i­can his­tory, have trou­ble with rudi­men­tary arith­metic, and do not un­der­stand ba­sic game the­ory.

The Se­nate Democrats are in the mi­nor­ity, a fact that a num­ber of them seem to fail to com­pre­hend. Given the num­ber of seats they will have to de­fend ver­sus the num­ber the Repub­li­cans will have to de­fend in the 2018 elec­tion cy­cle, the high prob­a­bil­ity is that they will re­main in the mi­nor­ity. By chang­ing their proper role of “ad­vise and con­sent” when it comes to con­fir­ma­tion of judges to a purely ide­o­log­i­cal test, they have de­stroyed any in­cen­tive for the Repub­li­cans to come up with con­sen­sus can­di­dates for all fed­eral courts — not just the Supreme Court.

The good news is that more judges are likely to be se­lected who be­lieve in strict ad­her­ence to the Con­sti­tu­tion and other laws as writ­ten. Se­nate Mi­nor­ity Leader Charles Schumer ex­hib­ited the same men­tal­ity as the World War I gen­er­als at the Bat­tle of the Somme, when they kept or­der­ing their in­fantry to run straight at Ger­man ma­chine gun nests, no mat­ter how many were killed.

The House Repub­li­can Free­dom Cau­cus also ex­hib­ited a lack of un­der­stand­ing of arith­metic in that they only have the numbers to block the adop­tion of a greatly flawed health care bill but one con­sid­er­ably bet­ter than the sta­tus quo. They do not have the numbers to ob­tain a much bet­ter bill. Their un­will­ing­ness to en­gage in a suf­fi­cient com­pro­mise means that taxes will be a tril­lion dol­lars higher over the next decade, and the job-killing em­ployer man­dates will re­main. Some vic­tory.

Most of the pol­icy pro­pos­als of the Free­dom Cau­cus are laud­able but, un­for­tu­nately, unattain­able at this time. Mov­ing slowly in the right di­rec­tion and living to fight an­other day is bet­ter than pure sui­cide. Most mem­bers of the Free­dom Cau­cus have a bet­ter grasp of fis­cal pol­icy than many House mem­bers, but have a poor un­der­stand­ing of game the­ory. Pres­i­dent Rea­gan both un­der­stood good eco­nomics (his de­gree was in eco­nomics) and game the­ory. He par­tially earned his living in the 1930s as a poker player — and he knew when to com­pro­mise and when not to — which was one rea­son he was such a great leader.

The Repub­li­can lead­er­ship in Congress also seems to have a prob­lem with arith­metic — as in “how many votes do I have for this bill?” They also come up short in com­mu­ni­cat­ing with their own mem­bers — let alone the out­side world — and play­ing hard ball when re­quired. You don’t let the kids (or mem­bers of Congress) go on va­ca­tion over Easter if they haven’t done their home­work (or passed ma­jor leg­is­la­tion like health care) on sched­ule. Most mem­bers of Congress hate stay­ing in Wash­ing­ton (even with the ad­vent of air con­di­tion­ing), so an ef­fec­tive way of dis­ci­plin­ing them is to make them stay in ses­sion un­til their work is done. This is also not pleas­ant for the lead­er­ship — but that is what lead­er­ship is all about.

Small chil­dren some­times give away their toys, but then scream and yell about other chil­dren hav­ing them. For more than a cen­tury, Congress has be­haved in much of the same way. It gave away much of its law- and rule-mak­ing power to newly cre­ated ex­ec­u­tive and “in­de­pen­dent” ad­min­is­tra­tive agen­cies. Ac­cord­ing to dis­tin­guished pro­fes­sor of law and ex­pert on the ad­min­is­tra­tive state Philip Ham­burger and other le­gal schol­ars,

Congress had no con­sti­tu­tional au­thor­ity for such del­e­ga­tion. Th­ese ad­min­is­tra­tive agen­cies write and pro­mul­gate rules, then serve as judge and jury as to whether their rules are le­gal, un­der­stand­able and rea­son­able, and also es­tab­lish their own penal­ties, most often in the form of fines. In­di­vid­u­als and busi­nesses have lit­tle re­course against abuses by th­ese agen­cies in that they are often pre­cluded from go­ing to the con­sti­tu­tional courts to seek re­dress. It is nearly im­pos­si­ble for the ad­min­is­tra­tive state and lib­erty to co­ex­ist.

Mem­bers of Congress rant and rave against the abuses and over­reach of gov­ern­ment agen­cies, while fail­ing to rec­og­nize they are crea­tures of Congress. Leg­isla­tive bod­ies were largely cre­ated to stop ar­bi­trary ad­min­is­tra­tive laws and rules by the king. But Congress finds it eas­ier to del­e­gate its pow­ers to others than to take on the dif­fi­cult job of mak­ing the laws and rules them­selves. The lib­erty-sap­ping and wealth-de­stroy­ing ad­min­is­tra­tive state en­ables big gov­ern­ment, which would not ex­ist if all laws and rules were ac­tu­ally passed by Congress as the Con­sti­tu­tion re­quires.

Congress finds it eas­ier to del­e­gate its pow­ers to others than to take on the dif­fi­cult job of mak­ing the laws and rules them­selves.


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