Drain the Swamp

            Donald Trump was elected because he promised to “drain the swamp” of Washington, D.C. One of the swamp creatures that need to be killed is the administrative state. Part of the reason why the federal government has grown so large is the lack of knowledge of what the Constitution actually says – or the willful disregard for it.

            Senator Mike Lee (R-Utah) recently published an article at The Daily Signal titled “Trump’s Historic Chance to Dismantle the Administrative State.” He first gives the reference in the Constitution that governs such things. He then gives some historical background for it.

            Senator Lee quotes Article I of the U.S. Constitution as beginning: “All legislative power herein granted shall be vested in a Congress of the United States.” Then Article II puts the president and the members of the executive branch under obligation to “take care that the laws be faithfully executed.” First, the legislative branch of the government makes the laws, and then the executive branch executes them. There should be no question about which branch of the government does what.

            In his history lesson, Senator Lee explains that “Congress passed laws and the executive branch enforced them” until President Franklin Delano Roosevelt called for constitutional change. FDR claimed that “the Great Depression should be treated as an `emergency of war,’ requiring a `temporary departure from the normal balance of public procedure.’” Apparently, the United States has been in an emergency since the time of FDR. However, the adoption of “a more systematic and codified framework that set the ground rules for America’s burgeoning administrative state” took place during the administration of President Harry Truman.

            Congress passed a law called the Administrative Procedures Act that delegated “broad lawmaking powers to executive branch agencies.” There was some give and take in the procedures, but power to make laws was given to the executive branch.

            Senator Lee continues his explanation by stating that “the balance of power between the branches” was changed in the 1980s by two Supreme Court cases: INS v. Chadha and Chevron U.S.A. v. Natural Resources Defense Council. The two cases together “caused a substantial transfer of power from the legislative and judicial branches to the executive branch. The result is an executive branch that has grown far too powerful and insulated from public control.”

            There is hope for the United States to move back to a constitutional foundation because Congress is working on three bills to reinvigorate “the separation of powers at the heart of our constitutional system.” Here is Senator Lee’s description of the three bills.

   First, the Regulations from the Executive in Need of Scrutiny Act (REINS Act) would help restore the balance between the executive and legislative branches by requiring congressional approval for any new regulation that would have a major impact ($100 million or more) on the economy.

   Second, The Separation of Powers Restoration Act would amend the Administrative Procedures Act and require judges hearing challenges to agency actions to review all relevant questions of law `de novo,’ thereby ending the dysfunctional status quo that tilts the legal playing field in favor of federal bureaucracies.

   Finally, the Agency Accountability Act would make federal agencies accountable again by directing most fines, fees, and unappropriated proceeds to the Treasury, instead of letting federal agencies keep and spend them as they see fit.

            According to Senator Lee, President Donald Trump and the Republican-controlled Congress could drain a lot of the “swamp” and make “a fundamental shift of power” in America. If Congress passes these three bills and President Trump signs them into law, much of the power of the federal government would be given “back to the American people.” President Trump claimed in his Inaugural Address that he wanted to give the power back to the people, and this is one way that he can do it.