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January 4, 2006

What our legal research on Delegation has yielded

A Progress Report

Before Christmas we requested your help in making improvements to the Read the Bills Act (RTBA). You responded (thank you) and we went to work.

We were concerned about one method Congress might use for evading RTBA’s enforcement mechanisms. We feared Congress would make their bills easier to read by delegating all of the “rule making” details to the bureaucracy. But our legal research quickly showed us that . . .

We were too late.

Congress already delegates so much rule-making to the bureaucracy that there is little room for them to evade RTBA by doing even more of this in the future.

A typical example: When Congress created the FCC it authorized the new agency to make rules consistent with the “public interest and necessity.” It is difficult to see how Congress could have been any more vague in this case, or delegated any more of the details to the Executive Branch bureaucracy.

In short, the delegation of legislative power to the Executive Branch bureaucracy is indeed a very big problem for responsible representative government, but it is not a particular problem for RTBA.

We believe Congressional delegation of “rule making” to the Executive Branch bureaucracy is a violation of the Constitution’s separation of powers. This problem needs to be fixed. But is the text of RTBA the place to do that? We think not.

Many DC Downsizers urged us to think this through carefully. They wrote to express concern that we were adding baggage to RTBA that would make the bill . . .

• More complex to explain,
• Longer to read,
• Harder to sell to Congressional sponsors,
• And ultimately harder to pass into law.

We shared these concerns, before we even pitched the idea, but felt the need to have this potential loophole explored before proceeding. We did the research, and our attorneys informed us that the problem we were attempting to address would be better served by a separate bill.

Mixing the “delegation problem” with RTBA would weaken the findings section in RTBA while providing insufficient findings for the part of the bill that would have addressed the “delegation problem.” But with a separate bill the findings in RTBA would remain strong while the findings for the “delegation problem” could be dramatically enhanced.

RTBA impacts only Congress, while any solution to the “delegation problem” would impact both the legislative and executive branches. If we have to defend RTBA in court it will be easier to do so if RTBA contains no delegation provision, since we will be able to rely on Congressional traditions to defend the bill reading requirement. The defense would be more difficult if we also had to support the non-delegation provision.

Defense of our solution to the “delegation problem” would also be made more difficult by the lack of good scholarship on this issue. One approach to the “delegation problem” comes from a judge who currently serves on the Supreme Court. This approach is also endorsed by a major think tank. But it’s a bad approach. One of our legal counselors describes their solution this way: “Let the horse out of the barn, and then trust political methods to bring the horse back.” This makes no sense to us. Instead, we say . . .

Don’t let the horse out of the barn in the first place!

We are turning our legal research on this issue into a stand-alone bill that will address the “delegation problem” directly. We plan to create an entire agenda of this kind of legislation, all of it designed to constrain and shrink the federal government. RTBA is the first item on this agenda, because its populist appeal will bring us the strength we need to tackle harder problems later – like the “delegation problem.”

But it is good to begin building this legislative agenda now, so that current and potential DC Downsizers can see how we plan to achieve the goal of small government. Thanks to the legal research DC Downsizers funded we will now have two bills on our agenda: RTBA and what we are currently calling the “No REGULATION Without Representation Act.” — NRRA for short. (We’re open to a better name, so if you have an idea, please leave a comment.)

RTBA will continue to be our focus until we get it passed, but NRRA will be added to our website soon. And we will be crafting more legislation in the near future. Thank you for making this possible!

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