Rebuilding Constitutional Government



The Issue


On their very first day in office, all elected and appointed officials at all levels of government swear an oath to uphold the Constitution. The governing institutions they then join, however, bear little resemblance to the ones envisaged by the Framers of our Constitution. No plausible reading of the Constitution could lend legitimacy to our current form of government: the administrative state.

Whereas the Constitution houses all legislative power at the national level in Congress, Congress today routinely delegates its legislative powers to the myriad agencies, bureaus, and departments that make up the administrative state.

Whereas the Constitution carefully separates the legislative, executive, and judicial powers of the national government, many administrative agencies today combine all three: they issue regulations that have the force of law, enforce these regulations, and also adjudicate disputes arising from the application of these regulations.

Whereas the Constitution creates a federated republic in which the states retain much latitude to enact policies tailored to the needs of their residents, they now too often act like administrative sub-units of the federal government tasked with implementing national policies.

Whereas the principle of the rule of law undergirds the entire Constitution, it is now frequently flaunted by legislators who enact statutes filled with special carve-outs, by Presidents who selectively enforce laws to reflect their own policy preferences, by bureaucrats who implement regulations in an often arbitrary and capricious manner, and by a strange combination of judicial activism and judicial abdication on the bench.

To reinvigorate our democracy, get government under control, and refocus it on its core functions, we must strengthen the still-widespread public sentiment against the excesses of the administrative state into a settled understanding of the nature and purpose of constitutional government in a federal republic.

The restoration of constitutional government will not occur all at once or across the board. Nor will it result from a single election, judicial decision, executive order, comprehensive piece of legislation, or constitutional amendment.

Those committed to the task of rebuilding limited constitutional government should not be distracted by illusory silver-bullet solutions that are sold to the public with a promise to dismantle overnight the deeply entrenched administrative state. Rather, they should focus on concrete, targeted reforms that reintroduce constitutional limits by focusing the national government on its primary obligations and restoring its responsibility and democratic accountability.


Recommendations


Think and Speak Constitutionally. It is incumbent upon public officials to articulate how their constitutional responsibilities inform and guide their actions and the public-policy choices they make—not just on Constitution Day, but every day. Senators and Representatives should do this in committee deliberations and floor debates on proposed legislation (as should judges in their written opinions; Presidents in their executive orders, signing statements, and official addresses; and state and local officials, who also swear an oath to uphold the Constitution, whenever appropriate). This teaches the general public that the way in which policy is made matters as much as the particular policy outcomes. It also makes clear that Congress is bound to interpret, apply, and enforce the Constitution—and not simply defer to the courts on all constitutional matters. America is a constitutional republic, and its officials—federal and state alike—should act accordingly.

Do Not Nationalize Every Issue. America is a vast, populous, and diverse country that is home to some 320 million people. It confronts numerous social, fiscal, and political problems—most of which are not the proper concern of Congress. Congress’s 17 specific areas of responsibility are enumerated in Article I, Section 8 of the Constitution and it should limit itself to legislating in those areas only. Candidates and Members of Congress should develop the habit of publicly acknowledging that certain problems should be dealt with at the state or local level and that others should remain the concern of private individuals, free markets, and civil society. They should then develop issue-specific expertise to learn what it will take in each area to restore such proper authority.

Revive Competitive Federalism. Contrary to what many conservatives and libertarians think, federalism is not in the service of the states. It is in the service of the American people. States possess no rights—people do. Properly understood, federalism not only limits power, it also aims to create competition between the states, thereby creating incentives for them to enact policies that retain and attract citizens. Just as importantly, federalism allows for considerable political diversity. A national consensus on all of the most divisive political issues is not possible in a country of our size. Within the confines of the Constitution, states should therefore be free to enact whatever policies they deem appropriate. To revive competitive federalism, Congress should focus on its core constitutional responsibilities. Because Congress is now involved in so many areas, Members of Congress will have to propose issue-specific reforms that will restore constitutional governance in each of these areas. Congress should also stop trying to induce states to adopt its preferred policies by tying federal funding to them. Revenue raising, policy setting, and appropriating ought to all be done by the same government.

Legislate Rather than Delegate. Americans expect Congress to accept direct responsibility for the laws it enacts and for the effect of those laws on the personal and economic lives of ordinary citizens. Congress should therefore cease delegating excessive legislative power to administrative agencies—either explicitly or by passing vague laws couched in broad, aspirational language. Congress needs to write clear and concise statutes to accomplish their 17 legislative obligations specified under Article I, Section 8. When a limited delegation of legislative power to an agency is required as a practical necessity, Congress should clearly stipulate the statutory boundaries and the guiding principles by which executive regulations are to be crafted.

Legislate Clearly and Openly. For too long, Congress has passed massive laws written behind closed doors that most Members of Congress neither read nor understand. Each house of Congress should adopt a rule requiring the public posting of the text of each bill and major amendment not less than 72 hours before floor debate on that bill or amendment. In addition, for the sake of clarity and accountability, all language in proposed legislation should be accompanied by a document clearly marking all changes and deletions from existing law, as is now often done for committee-reported bills.

Reinforce Congressional Control of Major Rules. Under the Congressional Review Act (CRA), Congress has 60 days to enact a joint resolution of disapproval of any major rule, thereby rendering it null and void (if the President signs it). A rule fits this category if it either has an annual effect on the economy of $100 million or more; or results in a major increase in costs to consumers, individual industries, or federal, state, or local agencies; or adversely affects competition, employment, investment, productivity, and innovation, undermining the ability of firms to compete in domestic or foreign markets. In practice, the CRA has rarely been invoked. Recent Congresses have tried to pass the Regulations from the Executive in Need of Scrutiny (REINS) Act which would reverse the burden of action by requiring that the House and Senate each affirmatively enact a bill that would embody a major rule before it can be enforced. Like all legislation, the bill would be signed or vetoed by the President. Thus, any issue of controversy over the rules would become a highly visible public policy question to be settled in open debate and in broad daylight. The REINS Act holds great promise of reversing the accelerating trend toward congressional delegation of legislative authority and limiting the powers of an opaque administrative state.

Reclaim the Power of the Purse. The Framers of the Constitution regarded the power of the purse as “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure” (Federalist 58). As such, the Constitution requires that all bills for raising revenue originate in the House, the branch of Congress that is closest to and most dependent on the people.

In recent years, Congress has taken to delegating its taxing and appropriating powers by empowering agencies to raise their own revenues, independently of any legitimate fees they collect. For example, the Consumer Financial Protection Bureau draws its funds from the profits of the Federal Reserve Banks (up to a statutory cap) and is thus entirely independent of congressional appropriations. The Federal Communications Commission’s Universal Service Program and the Public Company Accounting Oversight Board created by the Sarbanes–Oxley Act are also self-financing. Congress should revoke the statutory authorizations that make such agency self-financing possible.

Confirm Only Constitutionally Faithful Judges. Judicial appointments and confirmations are important opportunities to foster discussion on the proper role of judges and the proper way to interpret the Constitution. This does not mean invoking bromides like “judicial restraint,” “calling balls and strikes,” or “not legislating from the bench.” Fidelity to the Constitution may require judges to deem certain statutes unconstitutional in cases before them. Senators should scrutinize nominees’ approach to constitutional interpretation. Rather than press them on the outcome of past cases or try to discern their own policy preferences, they should be asked how they interpret particular clauses of the Constitution—in particular the clauses that have been most abused by Congress, Presidents, and the Courts.

Strengthen and Streamline the Federal Civil Service. Each year only about 0.15 percent of federal employees—less than one in 600—are fired. The President should be given direct authority to terminate any federal employee who, on the recommendation of an agency head and the approval of the Director of the U.S. Office of Personnel Management (OPM), has done a major disservice to the public and has brought the service into disrepute. In addition, existing federal civil service laws, rules, and regulations should be updated, particularly the Civil Service Reform Act of 1978, to ensure that America is attracting the most talented personnel to the service, providing for ample probation for new hires before permanent appointment, and improving the conditions for efficient and effective federal management.


Selected Additional Resources


The Heritage Guide to the Constitution, available online at http://www.heritage.org/constitution.

Gary S. Lawson “Limited Government, Unlimited Administration: Is it Possible to Restore Constitutionalism?” Heritage Foundation First Principles Series Report No. 23, January 27, 2009.

Robert E. Moffit, “How to Roll Back the Administrative State,“ Heritage Foundation Center for Policy Innovation Discussion Paper No. 1, February 17, 2011.

Robert E. Moffit, “Why Congress Must Confront the Administrative State,” Heritage Foundation Center for Policy Innovation Lecture No. 5, April 2, 2012.

Joseph Postell, “From Administrative State to Constitutional Government,” Heritage Foundation Special Report No. 116, December 14, 2012.

Keith E. Whittington, “How to Read the Constitution: Self-Government and the Jurisprudence of Originalism,” Heritage Foundation First Principles Series Report No. 5, May 1, 2006.

Christopher Wolfe, “From Constitutional Interpretation to Judicial Activism: The Transformation of Judicial Review in America,” Heritage Foundation First Principles Series Report No. 2, March 3, 2006.