Ryan’s Executive Overreach Working Group: It’s Time for Congress to ‘Man Up’ And Do Its Duty

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Lewis K. Uhler and Peter J. Ferrara National Tax Limitation Foundation
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For decades, Congress has been forfeiting, or intentionally delegating, to the president, the judiciary, and the fourth branch of government – the federal bureaucracy – its constitutional duties to make the laws and pay the bills of our nation. That must change.

That is the analysis and message of the Executive Overreach Working Group, one of six such policy teams organized by Speaker Ryan and his House Republican Leaders on key challenges facing our nation. Their recently issued report is perhaps the most important of all because restoring Congress’ power of the purse and control over law and rulemaking authority is central to every specific policy and program reform conservatives are pursuing.

Among the report’s revelations and recommendations are:

— “Congress bears much responsibility for the rise of the massive, unaccountable bureaucracy which thrives in in Washington. While it cannot undo this decades long development in one fell swoop, it should take immediate action to restore its authority by explicitly authorizing agency activity and by limiting its delegation of rulemaking powers.” One simple solution to excessive rule-making by executive agencies is to require that any rule estimated to impose significant compliance costs on the private sector must be approved by Congress before becoming effective.

— Congress’ failure to restore “Regular Order” has threatened its control over the nation’s “purse.” As one Supreme Court Justice wrote, “if a citizen who is taxed has … the decision to spend determined by the Executive alone, without adequate control by the citizen’s Representatives in Congress, liberty is threatened.” Without the 12 separate appropriations bills that are part of regular order, the President gains power over the purse – beyond his veto authority – through omnibus spending bills and continuing resolutions.

— Congress’ failure to limit appropriations flowing to unauthorized programs cost taxpayers $310 billion in 2015 (one fourth of all discretionary spending). There is no excuse for this. The Report urges that we breathe new life into House Rule XXI which allows any member to challenge from the floor any appropriation that does not have a current year authorization. There are some programs, like Legal Services, which have not been reauthorized for decades. This would force the authorizing committees to get to work and do their job, saving taxpayers billions each year.

— One of the most egregious concessions to Washington’s bureaucracy is judicial deference to executive agency actions/rulings. Under the Chevron doctrine, federal courts start with a presumption that an agency action is correct. That practice must give way to de novo hearings to level the playing field for citizens and businesses.

— The Justice Department and other federal agencies have been corrupting America with their sue and settle and fines/forfeiture practices that have provided huge off-line, non-Congressional funding for private groups and interests that run counter to Congressional intent. In the last 18 months alone, the Justice Department has allowed nearly $500 million to be directed to such favored groups. Defendants are encouraged to settle in this way by counting such payments double against their fines/fees.

— Stop spending through federal “grants” and require direct appropriations. In 2015, $625 billion (17% of total spending) was spent through such “grants” for which there is no real tracking, accommodating “friendly” direction of huge funds to Executive cronies. In 1940, $13 billion (in 2005 dollars) was spent through grants, only 2 percent of what Executive left-wingers direct and control today of the federal budget.

House Republicans are now seriously considering legislation “sunsetting” the current incomprehensible tax code by a date certain, to replace it with pro-growth tax reform proposed recently by the Ryan/Brady Task Force. We have endorsed their proposal with some modifications to make it an even more powerful engine of economic growth and job creation.

Reasserting its power of the purse, Congress under that tax reform should also abolish the IRS as an Executive agency – an anomaly of the Lincoln era – and replace it with a bureau reportable directly to and under control of Congress. The Constitution clearly states “Congress shall lay and collect taxes.”  

This is not a duty that can or should be delegated to the Executive Branch any more than writing the tax laws themselves. This would be a defining moment: putting Congress back in charge per the Constitution. 

Lew Uhler is Founder and Chairman of the National Tax Limitation Committee and National Tax Limitation Foundation (NTLF), who worked with and for Ronald Reagan both when he was Governor of California and President. Peter Ferrara formerly served in President Reagan’s White House Office of Policy Development and as Associate Deputy Attorney General of the United States under President George H.W. Bush. He is currently Senior Policy Advisor to NTLF, and Senior Fellow for Budget Policy and Entitlement Reform at the Heartland Institute.