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More Than One Way To Trim The Administrative-Regulatory State (Forbes.com) June 9, 2016

Posted by daviddavenport in Op/Eds, Politics.

Although Bill Kristol and others continue to beat the bushes for a conservative candidate willing to run belatedly and independently for president in 2016, conservatives have surely realized they are not likely to have a candidate to vote for, much less elect, in 2016.  The idea of smaller or less intrusive government simply isn’t on the table if your candidates are Donald Trump and Hillary Clinton.

Even the Supreme Court no longer seems like a viable check and balance on the growing administrative and regulatory state.  With only eight justices, more or less evenly divided between conservatives and liberals, few dramatic or politically impactful decisions are being made.  And conservatives should be nervous about either the approval of Merrick Garland, President Obama’s nominee, in a lame duck Congress this fall, or a Clinton nominee next year.  Although Donald Trump has proposed a list of reasonably conservative justices that he would consider appointing as president, I doubt that small-government conservatives are willing to bet the farm on how that turns out.

But there are other ways to skin the cat, or trim the administrative state, and it’s high time that conservatives turn their attention in those directions.  One is that Congress—home to Paul Ryan and other conservative policy thinkers—could pass the REINS (Regulations in Need of Scrutiny) Act, requiring that major new federal regulations be approved not just by the administrative agencies themselves, but by Congress.  Or, better yet, states could lead the charge to adopt the Regulation Freedom Amendment to the Constitution, requiring that, whenever 25% of the House or Senate declares their opposition to a proposed federal regulation, a majority of the House and Senate is required to adopt that regulation.

And let’s face it:  overregulation is a big part of our problem, both administratively and economically.  A recent report concluded that the federal government added 43 major new regulations last year, increasing regulatory costs by more than $22 billion.  This brings the Obama regulatory record to a stunning 299 major new regulations at a cost greater than $100 billion per year, and don’t think this momentum will flag in the president’s last year in office.  If you wonder why the economy is not growing, this is one primary reason.  If it takes years and thousands of dollars to get permits to start new project or hire new people, growth is killed.  With our economy growing at almost precisely half the rate it grew from 1950-2000, government regulation needs tighter control.

Another step is that Congress could adopt “The Separation of Powers Restoration Act of 2016.”  Washington insiders well understand the so-called Chevron deference doctrine, requiring that the law defer to a federal agency’s interpretation of federal statutes.  But legal scholars are beginning to realize that this doctrine has tipped the separation of powers too far in the direction of executive branch agencies, leaving too little power to Congress and the courts on questions of administrative law and the interpretation of federal statutes.  The Act would restore to courts their proper and independent role of interpreting the law.

Yet another tool in the kit would be adoption of the Regulatory Accountability Act, which would require agencies to perform, and courts to review, the cost-benefit analysis of proposed regulations, and to employ the least costly approach.  This bill has passed the House before, but it needs to be brought forward in the Senate and adopted into law.

The bottom line is that Congress and the states need to step forward in a time when neither the federal executive nor judicial branches is likely to lead efforts toward limiting the regulatory and administrative state.  There’s more than one way to skin this cat and, if conservatives are shut out of the White House and the Supreme Court in 2017, these are good places for them to turn.

To read the column at Forbes.com:  http://www.forbes.com/sites/daviddavenport/2016/06/09/more-than-one-way-to-trim-the-administrative-regulatory-state/#fa67af030e69

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