The construction of the fourth branch of government has been a bipartisan project. For a century, the administrative state has steadily grown while congressional control over regulation has receded. As Steven Hayward notes in “The Age of Reagan: The Fall of the Old Liberal Order: 1964-1980,” the progressive ideologues of Woodrow Wilson’s era, bent on solving complex problems with specialized expertise, laid the intellectual foundation of the regulatory state. Expansion of the federal apparatus under the New Deal was largely a civil engineering project. LBJ’s Great Society fueled growth of government as a social engineering project. Under Richard Nixon, to whom the greatest growth of the federal regulatory edifice can be attributed, the administrative state took on economic engineering and continues unabated. Under the Nixon administration, eight independent regulatory agencies and eight new executive branch agencies were created. President Nixon created EPA by a bare-bones executive order.
In the last several decades, Congress has done little to keep agencies from operating outside the reach of our tripartite constitutional system. Given the broad latitude Congress has in delegating legislative powers, it is Congress — not the courts — that has the power to check the regulatory state. These questions are no longer the esoteric interest of constitutional scholars but have been articulated by the grassroots constitutional movement known as the tea party. Procedural reform of the rulemaking process can help. Enactment of the REINS Act and strategic amendment of key statutory delegations of legislative authority could restore the Constitution’s guarantees of representation and accountability in the making of our laws.
Kathleen Hartnett White is a distinguished senior fellow and director of the Armstrong Center for Energy and the Environment at the Texas Public Policy Foundation. She was chairman of the Texas Commission on Environmental Quality from 2002 to 2008.