The fact that President Trump has rescinded hundreds of Obama-era federal regulations that had not been finalized has been mostly lost amid the political debris from other controversies. Trump did some of this in partnership with Congress through legislation; some he did on his own authority. Trump has ordered his administration’s agencies to remove two regulations for every new regulation they enact. From pet food safety to student loan default fees to industry’s use of coal, hundreds of proposed Obama regulations were stillborn. Liberals, who rejoiced at President Obama’s executive orders, must be suffering a painful case of shoe-is-on-the-other-foot-regrets.
For several decades, progressives have put their faith in Democratic presidents and liberal courts to achieve what they could not get in Congress. Their faith was handsomely rewarded. But all of a sudden, government is no longer their special change agent.
The executive branch’s inexorable arrogation of legislative power has grown steadily since FDR kicked the process off in response to the Depression. Several forces have converged to foster the growth — legitimate and illegitimate — of legislative authority in the executive and judicial branches.
Responding to exigencies like the Depression and the Civil War, presidents construed the Constitution and prevailing statutes so as to expand their executive authority. In the 1930s, FDR sought greater authority to fight the effects of the Depression. The courts denied him at first but ultimately knuckled under. (Wonderfully described in the Wall Street Journal.) Roosevelt expanded immensely the legislative authority of the executive branch. Moreover, Congress has specifically delegated to various agencies law-making powers, e.g. in the Internal Revenue Code, the Americans with Disabilities Act and the Affordable Care Act.
Agencies are intended to issue rules and regulations to implement legislation, and Congress sometimes authorizes an agency to make even more substantive regulations.
With a crescendo of precedents, the federal judiciary has steadily increased its legislative-like power.
Congress has facilitated the growth of executive and judicial law-making authority by failing to legislate when voids arise in the law or when an agency or court exceeds its authority or fails to implement congressional intent. Moreover, Congress has a bad habit of passing bills with broad policy goals or mandates to achieve certain ends, leaving it to federal agencies and courts not only to interpret, but to determine when and where and to whom the law applies. This is bad practice and a dereliction of its constitutional duty.
According to a Hudson Institute study, in the Affordable Care Act, "the word 'secretary' appears nearly 3,000 times … most frequently referring to regulatory implementation requirements that will have to be undertaken by the HHS secretary … and appointed or career staff." Consequently, we have about 13,000 pages of ACA regulations written not by Congress but by federal bureaucrats Some of these regulations simply effectuate congressional intent; but you can bet that others contain policy-making beyond what the ACA statute directs.
Conservatives have also been disappointed in looking to government to obtain their cherished goals. For instance, the U.S. Supreme Court upheld the ACA’s individual mandate to buy health insurance, thereby mooting conservatives’ high hopes the court would negate the law as a violation of the interstate commerce clause.
There’s an even larger point to be made about our relationship with our government beyond executive and judicial arrogation of power. Liberals especially, but conservatives also, have looked to government too often for too much. The Founders strictly limited our constitutional government to the exercise of enumerated powers. In my opinion, the federal government has long since breached that wall of limited powers resulting in a federal government that is far too big, expensive and intrusive.
Our over-reliance on government may be shown rather simplistically by the fact that the U.S. government annually only collects in taxes and other income 60 percent of what it spends. It borrows the rest.
The recent tussle over bathroom use by transgender people shows us that given the delicate issues of privacy and gender identity, the law simply cannot settle the issue to everyone’s liking. So it is in countless other matters that we look in vain to the government. At some point, the effectiveness and reach of the law ends, and the goodness and wisdom in each heart must take over.
Greg Bell is the current president and CEO of the Utah Hospital Association. He is the former Republican lieutenant governor of Utah.