Another Little Civics Lesson on the Three Branches of Government

Today’s civics lesson is on the three branches of government: legislative, executive, and judicial. This seems basic, but there are people who need reminding that the legislative branch writes the laws and budgets the money; the executive branch carries out the laws; the judicial branch adjudicates on lawbreaking and settles disputes.

Article I, Sections 1 and 7, of the Constitution

Why the need for the lesson today? Because of the hue and cry about an executive branch out of control—because it wants to reduce the regulatory burden.

Here’s an example from an “educator” in my school district (I do not know her, so I have deleted name and school identifiers).

Libs of TikTok discovered this example of a local Texas educator

First of all, authoritarians don’t, by definition, make people freer. So there must be something wrong in the perception of what’s happening. I think the misperception is that the regulatory agencies are independent, and therefore are a check on the power of the executive. That’s not accurate.

Regulatory agencies are part of the executive branch. But in many ways they are a perversion of all three branches, combining lawmaking authority with prosecution and adjudication of rulebreakers: all three separate branch authorities in a single agency—like a monarchy, or your common tyranny.

Regulatory agencies are formed when Congress, the legislative branch, decides that something is too complex for them—or for any non-expert—to understand and make rules on, so they dump their lawmaking duties into the agency and set it up to rule unilaterally.

To break that down, what Congress has done is relinquish its lawmaking duties to the agency, which will be—not a part of the legislative branch, but of the executive branch. The “law” the legislature set up was something like, “this agency will do anything outlined in these 998+ pages, plus anything they deem necessary to regulate this aspect of life for Americans.” And then that agency, with its experts in charge, will write myriad rules and regulations—too many for any person to be familiar with.

And, just to clarify, a just law must be known and declared to the people, so that compliance is possible; otherwise, it’s just a capricious ruling power—a tyranny.

Then the agency—because the assumption is, no typical judge would have the expertise to understand how and whether an accused violator had even done something wrong—creates its own internal judiciary to carry out sentencing, which could be anything from assessing a fine, denying property rights, shutting down a business, on up to incarceration for criminal actions. And up until recently, there wasn’t much an accused violator could do to appeal such a ruling.

You may remember that the Chevron deference was eliminated by the Supreme Court last summer. In the 1984 Chevron decision, the Supreme Court had decided that regulatory agencies were the "experts" in their field, and the courts should just defer to their "interpretation" of the law—thus the term “Chevron deference.” It was a bad decision. It meant that a regulatory agency could come in, inform you that you were in violation and were therefore a criminal, and they might sentence you on the spot. You didn’t get a jury trial; you often didn’t get to mount a defense. And you probably couldn’t appeal to anyone but the “judge” inside the agency.

The Loper case, which led to the Chevron deference being overturned, concerned a fishing company, Loper Bright Enterprises, which was being charged $700 per day by the National Marine Fisheries Service (NMFS) to monitor their company. Federal law never authorized NMFS to charge businesses for this monitoring “service.” NMFS just started charging the exorbitant fee in 2013. And it put any but the most lucrative businesses into bankruptcy. So it was about time they were challenged.

SCOTUS could have ruled narrowly, on just this NMFS case. But they broadened the ruling, to allow challenges to essentially all regulatory agency tyrannies—in other words, to throw out Chevron deference.

As Tom Woods commented at the time, 

Whenever something like this happens, when a wicked but seemingly irreversible feature of American life is suddenly overturned, it should lift our spirits: things we assume are forever may not be so forever after all.

The opposition to freedom has been clamoring on about the danger of weakening the regulatory state ever since.

And right now, with the Trump administration challenging—and cutting budgets and authority to—these agencies, the opposition is apoplectic. But their claim that this is authoritarian overreach is exactly opposite of true. What we are seeing, at last, is an administration willing to reduce centralized authority and tyrannical, unconstitutional regulatory agencies—and put lawmaking power back into the hands of the legislative branch where it belongs.

Madison, from Federalist #62, which Sen. Lee refers to below

So, that’s my opinion. But, while writing this I happened to hear Senator Mike Lee talk about this very thing with Glenn Beck on his Thursday radio show. The specific conversation was about the REINS Act, or Regulations from the Executive in Need of Scrutiny Act, which is a proposed law that would require congressional approval for major regulations issued by federal agencies before they can take effect. Here’s some of that conversation:

ML: The REINS Act, bottom line, is that it requires what the Constitution already mandates. In Article I Sections 1 and 7 we read that you cannot make a federal law without Congress. And that to pass a federal law, that requires a couple of things. First, bicameral passage, meaning passage of the same bill in the House and in the Senate. Secondly, you have to present that to the President, who can then sign it, veto it, or acquiesce to it.

Now—and it should be simple, right? Because Article I Sections 1 and 7 make that clear. And yet, for the last 85 years or so, Congress has been in a death spiral of delegating its lawmaking powers. In short, we will say things like, “Well, we should have good law in area X, and hereby delegate to agency Y the power to make good law in that area.” That’s nonsense. That makes the work easier for members of Congress, and it insulates members of Congress from political accountability, but in the wrong way.

GB: But even more, does it not violate my right to representation? No taxation without representation?

ML: 100%. Because these people who make most of your laws—measured by weight, volume, regulatory compliance costs, you name it—are now made by men and women not of our own choosing. This is a real problem.

Remember that Madison said, in Federalist 62, he said in effect, “It will be of little avail to the American people that their laws may be written by men of their own choosing, if those laws be so voluminous, complex, and ever-changing, they can’t know from one day to the next what the law says and what it requires.” We now live in that dystopian nightmare, Glenn. 100,000 pages a year—is what these bureaucratic pinheads put out every year.

And not only are they so everchanging you can’t know what the law says from one day to the next, they’re not even written by men and women of our own choosing. This is tyranny of the sort that would have made King George III blush with envy. These guys are tyrants. And we’ve got to take it back. It is Congress’s fault; Congress must fix that. Congress may fix it, and must fix it, by passing the REINS Act.

It is Congress’s fault. But it is also the fault of presidents who signed those bills to create administrative agencies—over 400, and only now for the first time is that number going to go down instead of up. And it is the fault of a judiciary who also allowed their power to be usurped and did not declare unconstitutional what these agencies have been doing.

For those concerned about the constitutional
authority of DOGE, Mike Lee clarifies.

So, no, we are not about to “lose our democracy”—unless what you define as democracy is a bureaucratic tyranny, rather than the will of the people. Finally, we have an administration acting to recover from this rule by bureaucrat.

As Elon Musk said recently, 

“If the people cannot vote and have their will be decided by their elected representatives in the form of the President and the Senate and the House, then we don’t live in a democracy. We live in a bureaucracy.”

For those in fear that a loss of regulations leads to a loss of safety or some other fear, I’ve written about that a few times:

·        Regulation—Too Much of a Bad Thing, April 5, 2011 

·        Regulatory Tyranny, August 26, 2013  

·        SCOTUS Finale, July 6, 2024  I linked to this above, with the Tom Woods quote. The middle section talks about the repeal of the Chevron deference.

·        Vote for Freedom, Faith, and Family, October 21, 2024 This was a “why vote for Trump as a person of faith” piece, but quotes Sen. Mike Lee saying very close to what I quoted him saying in today’s piece. 

That ends today’s lesson. I’m sure there will be plenty more to review about our Constitution in days to come.

Try Reading the Constitution, Part III

We’re doing a series celebrating the US Constitution. See Part I and Part II.

The premise is that you might have had the idea that the Constitution is hard to understand, too much legalistic language as well as too many archaic words. I assert that it’s actually pretty accessible and together maybe we ought to give it another try. So you might want to get out your pocket Constitution to follow along.

Today, we’ll continue the Constitution reading exercise with Article II, pertaining to the executive branch. After the four sections of this article, we’ll cover some problems we’re having with this article.

 

Article II

Article II of the Constitution lays out the powers of the US President, the chief executive officer (CEO) of the United States.

He does not make laws—although he can use his influence to persuade Congress to make certain laws.

He does not make a budget—although he can use his influence to persuade Congress to budget according to his priorities.

Section 1 describes how the President, together with the Vice President, shall be elected. This is where the Electoral College instructions and rules are laid out, which were changed with the Twelfth Amendment in 1804. Then come the requirements to be the president:

·         Must be a natural born citizen.

·         Must be 35 years of age by the time of the election.

·         Must have resided within the United States for 14 years.

That last one means, if a person grew up as a citizen, but lived with parents outside the US, or additionally worked outside the US as an adult, and hasn’t accumulated 14 years living in the US, they can’t run for the office of president. The founders were trying to prevent someone whose allegiance was, either secretly or openly, to another country from using the technicality of citizenship to try to gain power in our country.

Then come the rules for removal from office—for impeachment and conviction of crime, or for death, resignation, or inability (possibly temporary until the disability is resolved). There’s more about this in the 25^th Amendment, passed in 1967.

Next comes information about the president’s compensation. Then there’s the requirement of taking an oath of office, which is:

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

Section 2 gets into what the President’s duties will include:

·         Be Commander in Chief of the US military and the militia of the several states (the state national guard).

·         Grant reprieves and pardons for offenses against the US (except in cases of impeachment).

·         Make treaties, with advice and consent (2/3 of those present) of the Senate.

·         Appoint ambassadors and other public ministers and consuls, with advice and consent of the Senate.

·         Appoint Supreme Court justices and other officers of the US, with advice and consent of the Senate.

·         Fill vacancies that may happen during the recess of the Senate, which expire at the end of the next Senate session.

Section 3 requires the President to report to Congress concerning the State of the Union. While this can be done in writing or some other way, it has become the traditional State of the Union Address, usually in the first quarter of the year.

And there’s this important statement:

“He shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”

He’s going to see to it that the laws are carried out. And he’s going to delegate powers to—that is, commission—the officers to do their assigned work in seeing that the laws are carried out.

Section 4 is one more word about impeachment, which applies to the President, Vice President, and all civil Officers of the United States—which includes federal judges and other appointees. Impeachment is the prosecution part, done by the House of Representatives. The trial on the offense(s) happens in the Senate, where the officer can be removed from office if convicted. Impeachable crimes include “Treason, Bribery, or other high Crimes and Misdemeanors.” That term “high Crimes and Misdemeanors” has been the subject of some debate, although it was clearly understood by the founders. The phrase was intended to include large crimes against the state that might not be labeled as either treason or bribery.

We covered this in more detail last December, when history on this subject was taking place. You can read that here. But, in short, picture a diagram that has a large circle encompassing all serious crimes against the state (nation), inside of which are treason and bribery. So anything that isn’t treason or bribery is included as “high Crimes and Misdemeanors.”

Problems with Executive Power

The Regulatory State

There has been a serious change in the balance of power in recent years. The founders assumed that each branch of power would jealously guard its own power, thus preventing any encroachment by the other branches.

But we’ve had a sort of new, extra-constitutional (that is, beyond the Constitution) branch we might call the regulatory state.

The balance of power has shifted, because laws are being written that cede power from the legislative branch to the executive branch. They delegate sweeping powers to these regulatory agencies to determine the laws, write them as regulations, and enforce them. In addition, they often have power to judge and punish as well.

So many things are wrong with rule by regulatory agency. Its rulers are unelected. Some are experts in particular fields, but mostly they are bureaucrats, administrators, who may not be in touch with the realities of those doing business in that economic sector.

They are granted lawmaking power—the legislative branch’s job—but they’re part of the executive branch. It’s as if the legislative branch said, “You’re smarter than we are; you just do what you think is best. We’re sure you’d never do anything but what is the right decision for everybody.” And then the legislative branch turns their attention to their other assignments, such as doing impeachment investigations.

As we talked about in our post on Article I, legislating is the only main assignment of Congress. In addition, they put out the budget. Although since 2006 they have mainly failed to put out a budget, and have done what is called a “continuing resolution,” which keeps funding everything as it was funded in the previous year’s budget with some set percentage of increase to balance against inflation. In other words, Congress is very busy not legislating or budgeting.

By ceding that power to “the experts,” the legislative branch has greatly increased the power of the executive branch. That hasn’t been a good thing; it has unbalanced the constitutionally designed balance of power. We’ve talked about that in more detail:

·         Regulatory Tyranny, August 26, 2013

·         Red Tape Cutting, May 31, 2018

Executive Orders

There’s another problem with the executive branch: Unconstitutional Executive Orders. This comes under Section 3, where we’re told about the President's duty to faithfully execute the laws and commission officers to do that work.

The purpose of an executive order is to direct the people working under the President concerning how to execute the laws duly enacted by Congress. Executive orders are meant to be procedural. And they must be simply a way to carry out of the laws; they cannot change the laws or create new laws. We have purposely separated powers so that the executive branch does not have lawmaking powers.

The number of executive orders a president gives is not relevant.

For example, If you have a president, say Reagan, who uses executive orders liberally but perhaps not even a single time for any purpose but directing the executive branch in how to keep the law, then you have no executive order problem.

Then, suppose you have another president, say Obama, who less frequently gives executive orders but often as an edict to create law rather than to follow laws set by Congress, then each of those offenses is breaking the law.

Party doesn’t matter. The policy itself—along with its efficacy or intent—doesn’t matter. The color of the president matters not a whit. What matters is the breach of the law.

The President cannot act extralegally. He cannot make law. We do not live in a monarchy, dictatorship, potentate, banana republic, or any other tyranny. We live in a constitutional republic. We have a written law granting only limited enumerated powers to the federal government, so that our God-given natural rights are not infringed.

Can a president act beyond those enumerated powers? Presidents have. But not legally. Presidents have typically gotten away with exertion of power beyond what is granted depending on their popularity.

So the next question is, How do we limit the damage of a president’s acting beyond his authority in direct conflict with Constitutional limits?

The ultimate constitutionally designed response is impeachment. But first there should be other ways, less painful to the nation.

Congress can write legislation to override the executive overreach, so there is no lack of clarity on what the law actually is.

Congress can stonewall the illegal orders. With the power of the purse, which they hold, they can defund anything that relates to executing his orders. They can do targeted defunding—rather than simply refusing to agree to a continuing resolution, for which the shutting down of the government will be blamed on them. It’s easier to target spending in an actual budget, so that’s incentive for Congress to do that basic job.

The Senate could withhold approval of political appointments until the president rescinds his illegal orders. Senator Ted Cruz attempted this back in 2014.

There are also lawsuits. Then-Texas Attorney General (and Governor-elect) Greg Abbott filed a lawsuit in 2014 based on the significant damage to the state caused by the president’s insistence on a porous border.

It may be that courts can suspend the immediate enactment of any illegal order. This usually requires someone with standing (a person, business, or state or local government that has suffered measurable damages) to sue for redress.

Assertion of 10^th Amendment rights by the states could also be a solution.

All of the solutions require political will, which means that many presidents do a political calculation before the intentional overreach.

So, executive orders used as lawmaking continues to be a threat to our constitutional republic.

The question for each executive order isn’t whether the president has the right to give an executive order; he does. The question is whether the order is following the Constitution and merely executing the law as defined by Congress.

A Schoolhouse Rock Style Civics Lesson

Senator Ben Sasse gave the country a nice civics lesson last week, as his opening statement at the Judge Kavanaugh confirmation hearing for Supreme Court Justice.

Senator Ben Sasse, opening remarks
at the Kavanaugh confirmation hearings
screen shot from C-SPAN3

First, he made it clear that the hysteria surrounding a well-qualified judge with bipartisan support among his colleagues has nothing to do with Brett Kavanaugh. It has to do with a misunderstanding of—and a corruption of—the balance of power laid out in our Constitution.

This is not something new. He says,

These confirmation hearings haven’t worked for 31 years in America. People are going to pretend that Americans have no historical memory, and supposedly there haven’t been screaming protestors saying women are going to die at every hearing for decades. But this has been happening since Robert Bork. This is a 31-year tradition. There’s nothing new the last 18 months.

It's ideological, and it’s political. And unfortunately it's treated like team sports:

Our political commentary talks about the Supreme Court like they’re people wearing red and blue jerseys. That’s a really dangerous thing.

He suggests that a better use of these hearings would be to do some Schoolhouse Rock civics lessons for our kids, to give them the opportunity to understand our government better:

We should be talking about how a bill becomes a law, and what the job of Article II is, and what the job of Article III is. So let’s try just a little bit. How did we get here? And how do we fix it?

And then he spends a little time going over some constitutional basics.

The Constitution’s drafters began with the legislature. These are equal branches, but Article I comes first for a reason. And that’s because policymaking is supposed to be done in the body that makes laws. That means that this is supposed to be the institution dedicated to political fights.

If we see lots and lots of protests in front of the Supreme Court, that’s a pretty good litmus test barometer that our republic isn’t healthy. Because people shouldn’t be thinking of protesting in front of the Supreme Court; they should be protesting in front of this body.

The problem is that Congress (he refers to the legislative body using the general term Congress, comprised of the House and the Senate) has abdicated its responsibilities. The founders believed that the desire for power—generally a bad human trait, but nevertheless part of human nature—could be harnessed to have three separate but equal branches of government all jealously maintaining their power from overreach by the other branches. The founders would be surprised to see what has actually happened.

Here’s his description:

How did we get to a place where the legislature decided to give away its power? We’ve been doing it for a long time, over the course of the last century, but especially since the 1930s, and then ramping up since the 1960s—a whole lot of the responsibility in this body has been kicked to a bunch of alphabet soup bureaucracies. All the acronyms that people know about their government, or don’t know about their government, are the places where most actual policymaking—kind of in a way, lawmaking—is happening right now.

This is not what Schoolhouse Rock says. There’s no verse of Schoolhouse Rock that says “give a whole bunch of power to the alphabet soup agencies, and let them decide what the governance decisions should be for the people”—because the people don’t have any way to fire the bureaucrats.

And so, what we mostly do around this body is not pass laws. What we mostly do is decide to give permission to the secretary or the administrator of bureaucracy X, Y, or Z to make law-like regulations. That’s mostly what we do here. We go home, and we pretend that we make laws. No, we don’t. We make giant pieces of legislation, 1200 pages, 1500 pages long, that people haven’t read, filled with all these terms that are undefined. And we say, the secretary of such and such shall promulgate rules that do the rest of our dang jobs.

from Schoolhouse Rock video
Three Ring Government

That’s why there are so many fights about the executive branch, and about the judiciary, because this body rarely finishes its work.

He admits there’s a rationale, flawed though it may be, for the regulatory system:

The Congress can’t manage all the nitty gritty details of everything about modern government. And this system tries to give power and control to experts in their fields, while most of us in Congress don’t know much of anything, or, about technical matters, for sure, but you could also impugn our wisdom if you want. But when you’re talking about technical, complicated matters, it’s true that the Congress would have a hard time sorting out every final dot and tittle about every detail.

But the real reason is more self-serving. Legislators don’t want to take responsibility for difficult or unpopular decisions.

If people want to get reelected over and over again, and that’s their highest goal—if your biggest long-term thought around here is about your own incumbency, then actually giving away your power is a pretty good strategy. It’s not a very good life, but it’s a pretty good strategy for incumbency.

In the abstract, maybe it doesn’t seem so awful. But it has real life consequences to the people. Sasse offers an example of his fellow Nebraskans:

When Congress neuters itself and gives power to an unaccountable fourth branch of government, it means the people are cut out of the process. There’s nobody in Nebraska, there’s nobody in Minnesota or Delaware who elected the Deputy Assistant Administrator of Plant Quarantine at the USDA. And yet, if the Deputy Assistant Administrator of Plant Quarantine does something to make Nebraskans’ lives really difficult—which happens to farmers and ranchers in Nebraska—who do they protest to?

As the senator points out,

Almost all the power right now happens offstage. And that leaves a lot of people wondering, “Who’s looking out for me?”

He does offer a solution. It’s one of those simple but not easy things, but it beats what we’ve been doing:

The solution here is not to try to find judges who will be policy makers. The solution is not to try to turn the Supreme Court into an election battle for TV. The solution is to restore a proper Constitutional order, with a balance of powers. We need Schoolhouse Rock back.

We need a Congress that writes laws and then stands before the people and suffers the consequences and gets to go back to our own Mount Vernon, if that’s what the electors decide. We need an executive branch that has a humble view of its job, as enforcing the law, not trying to write laws in the Congress’s absence. And we need a judiciary to trust to apply written law to facts and cases that are actually before it.

This is the elegant and the fair process that the founders created. It’s the process where the people who are elected—two and six years in this institution, four years in the executive branch—can be fired. Because the justices, and the judges, the men and women who serve America’s people by wearing black robes, they’re insulated from politics.

So, we need to stop playing the decades-long game of politics surrounding the Supreme Court. Maybe we can get that if Congress will take back its power. There are hints that that could happen. The rolling back of regulations is a start. Making sure any new legislation is simple, straightforward, and necessary, based on the proper role or the federal government would help.

And—as it appears is a possibility at last—we can have a majority on the Court that know the limits of their power and abide by the law, instead of making it up as they go.

If you’ve got a young person around who isn’t getting taught this kind of civics in school, share Senator Sasse’s lesson with them. The whole 15 minutes is below. And for younger kids, maybe you should look up some of those old Schoolhouse Rock videos online. It’s amazing how the tunes—and the messages they carried—can come back decades later.

Red Tape Cutting

There are many things wrong with regulations—almost as an entire category:

·         The definition.

·         The negative economic effects.

·         The beyond the Constitution regulatory tyranny.

As I’ve mentioned before, our founders, when they used the word in the Constitution—i.e., “regulate Commerce,” and “well-regulated Militia”—they meant

to make regular—to make sure something can happen regularly, without blocks or interference. That’s what the founders meant by regulation interstate commerce.

But in today’s government, regulation means something else: governmental power to decide when, how, and whether something can happen. It’s arguable that all government regulation prevents, rather than provides, regularity of something happening.

What we need is for government—especially government regulations—to get out of the way, so that what we want to happen regularly, like commerce, can happen freely.

President Trump cuts red tape
in ceremony in December 2014

A Just the Facts article, “The Effects of Regulations on the Economy,” by James D. Agresti, shows how regulation has actually prevented what it claims to be trying to do:

For example, a 2015 working paper from the Harvard-Kennedy School of Government found that regulations are likely the main reason why community banks’ share of the U.S. banking market fell from more than 40% in 1994 to around 20% in 2015. This is because “larger banks are better suited to handle heightened regulatory burdens than are smaller banks, causing the average costs of community banks to be higher.” Likewise, a 2016 paper in the DePaul Business and Commercial Law Journal found that the 2010 Dodd-Frank “Wall Street Reform and Consumer Protection Act”:

could actually be enhancing the consolidation of the banking industry, in direct opposition to its principal purpose—eliminating “too big to fail” banks. While the industry has intentionally trended towards consolidation in the past, the current dramatic increase of consolidation of banking assets is likely an unintended consequence of increased regulation. This consequence comes from astronomical regulatory costs passed on to community banks, as well as increased capital requirements that diminish these banks’ competitiveness. Dodd-Frank has exacerbated this problem, and it will likely result in further increased consolidation of the banking industry.

What do we keep saying about the unintended consequences of government interference?

If the government wants to implement something beyond the proper role of government, not only will government fail to achieve the stated goals; it will likely do exactly opposite of the stated goal.

Why isn’t that obvious enough that people would stop wanting government to interfere?

It’s hard to get data on the negative effects of regulation on the economy. As Anne C. Steinemann, author of the textbook Microeconomics for Public Decisions, says, it’s pretty easy to create a cost-benefit analysis that will “produce a desired outcome,” and “it is practically impossible to predict all the future impacts” of a government program, “let alone their magnitudes and their probabilities of occurrence.”

An example provided by Agresti compares pro and con arguments. On the pro side, the Obama administration drafted a report in 2014: 

Estimating the costs and benefits of major federal regulations from 2003 to 2013. It concluded that the costs were somewhere between $57 billion and $84 billion, while the benefits were much greater at $217 billion to $863 billion.

Since we were in an elongated recession without the expected recovery through most of those years, that seems like it could be just a wild invention to say, “You think this is bad? Imagine how bad it would be if we hadn’t stepped in.” You can’t exactly “prove” an imaginary alternate universe.

Meanwhile, a 2013 paper in the Journal of Economic Growth found: 

The effects of federal regulations on the U.S. economy have been “negative and substantial.” They estimate that GDP would now be more than three times larger if federal “regulation had remained at its 1949 level.”

Which is right? Probably the one that coincides with the principles that lead to freedom, prosperity, and civilization. In other words, government regulation, which is rule by unelected bureaucratic fiat—or tyranny—is unable to lift an economy out of poverty and into prosperity. So if the pro-tyranny side is claiming their interference is creating all kinds of magical benefits, chances are they’re skewing the data for their purposes or simply outright lying.

Agresti suggests there are plenty of other indicators to lead to the conclusion that regulation is a negative on the economy:

A key driver of economic growth plummeted in the wake of two major regulatory expansions in modern U.S. history. This element is productivity, and as explained by former Federal Reserve Chair Janet Yellen (and various other economists with wide-ranging political views): “The most important factor determining living standards is productivity growth, defined as increases in how much can be produced in an hour of work.”

The Journal of Economic Growth study, mentioned above, uses historical data, of which there is an abundance, and finds

that regulations have “strong and robust negative effects” on economic growth, and these “results are qualitatively consistent with those obtained from studies using the various cross-country and panel data sets on regulation.”

Notably, regulations harm the economy by harming productivity. What we can see is that federal regulations spiked under President Carter (1977-1981) and Obama (2009-2017). “In the wake of both of these regulatory expansions, productivity growth crashed,” as you can see in the chart:

Chart from Just the Facts

So, while we don’t have absolute cause-effect proof, there is plenty of evidence for reasonable people to see the harm government regulation (which is, almost by definition, over-regulation) does to the economy.

What we ought to insist on is adherence to the Constitution; that would give us plenty of evidence that freedom from regulation is good for the economy. But we haven’t tried that experiment in a very long time. The Congress has mostly abdicated its legislative authority to the regulatory arms of the executive branch. And the courts have mostly bowed to the “experts” of those regulatory commissions.

However, there has been some recent progress from this administration: the FCC’s net-neutrality repeal, HHS healthcare reforms, EPA details, some Education Department deregulation. These are actual campaign promises President Trump made that he is keeping.

There are three ways to accomplish regulatory reforms:

·         Executive orders ending the executive orders of the previous administration (easiest to do, but also easiest to reverse by a future administration).

·         Legislation requiring change, and returning responsibility for lawmaking to Congress, and, in many cases, returning the judicial functions to the judiciary, instead of leaving all powers in the hands of regulators to determine law, prosecute, and punish.

·         Reform from within regulatory agencies, which depends on appointees to champion the goal of deregulation.

·

Adam J. White, writing for the Hoover Institution (in “Trumping the Administrative State”), says, ”2018 will mark the beginning of a steady wave of agency decisions that will immediately be appealed to federal courts.” The most high-profile of these

will be filed strategically before courts staffed disproportionately by sympathetic judges in Washington, D.C., or on the West Coast. This litigation may come to resemble the lawsuits challenging President Trump’s immigration and refugee orders: Judges will scrutinize agency actions much more aggressively than before. The traditional deference by judges to regulatory agencies’ decisions is unlikely to prevail, and courts will undoubtedly invoke statements by the president or by his appointees that they see as undermining the credibility that agencies usually are afforded. (This will be quite a turnabout after Democrats less than a year ago criticized President Trump’s appointee to the Supreme Court, Neil Gorsuch, for having questioned the amount of deference” that courts give agencies.)

Of the legislative option, he says this is “an opportunity Republicans may not enjoy again for a long time.” And he adds, if they fail to use it,

It would be disappointing and ironic: Congress’s inaction is itself one of the main causes of our modern administrative state. By failing to legislate on the issues of greatest national interest, Congress creates a policy vacuum that agencies fill unilaterally with regulations. Lawmakers further compound this problem by failing to reform the antiquated appropriations process that no longer ties Congress’s oversight of agencies to its constitutional “power of the purse.”

As for the third option, he makes these suggestions for the regulatory agencies:

They can unilaterally adopt reforms to promote transparency and accountability within their own houses. Perhaps the best example of this so far are the efforts at the Justice Department and Education Department to scale back their reliance on “guidance” documents, a broad category of agency pronouncements that regulate the public but that do not undergo even the minimal procedures for public accountability otherwise required of new regulations. If these two departments succeed in reforming their own practices, they could come to be seen by the public (and by judges and legislators) as the regulatory equivalent of “best practices,” raising the bar for what we expect of other agencies.

So, we’re at a time when we have at least some reason to be hopeful.

In his conclusion, White talks about the most lasting reforms of the Reagan era; they lasted because they became systemic. They became the expected practices over several administrations. Based on that, he says,

Years from now, we may find that some of the Trump administration’s most important regulatory reforms in 2018 were the ones that attracted the least attention. Executive orders and regulatory repeals announced to great fanfare are very important; even more important are reforms changing the culture of modern regulatory agencies, achieved through sustained effort within those agencies, to little fanfare and no ribbon-cutting.

In one of the announcements, President Trump cut a big red ribbon, to mean cutting the “red tape.” I hope his commitment to that is real. And I hope the results will become sustained changes that return us to the freedom that helps us thrive and prosper.