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JON STUEBBE: Keep lawmaking power in Congress

My last Modest Proposal article suggested reining in the use of executive orders by presidents and governors. Today I want to make another proposal on a related theme.

The original design of our constitutional government system placed the power to make laws in the Legislature, the power to enforce those laws in the executive branch, and the power to interpret those laws and adjudicate enforcement in the judicial branch. Each shared limited powers with the others to control any concentration of power. It was the classic game of rock, paper and scissors in constitutional form.

By the late 1800s, Congress realized that the increasing complexity of running a modern state made it impractical or impossible for them to write all the laws needed so they started delegating the power to make regulations to the executive branch to “fill in the blanks.” For more than 40 years, the U.S. Supreme Court rejected these attempts at delegation based on the original understanding that only the legislative branch could make laws.

At the beginning of the presidency of President Roosevelt during the Depression, the Supreme Court changed its mind and allowed such delegation as long as there was enough limiting guidance to the executive branch as to what to do and how to do it. They couldn’t just say “take care of education,” but they didn’t have to write all the regulations themselves.

As a result, executive departments and agencies have grown into a massive bureaucracy that writes the rules and regulations by which we all live. The problem is that the same agencies also enforce the rules they write and, in many cases, act as the judge in deciding if a violation has occurred. They have taken on the roles of all three branches, thereby overturning the original design.

This needs to change back to the way it was originally intended.

Since the original problem of our nation needing more regulation than 435 members of Congress can possibly provide still exists, how could the shift back occur?

I am the last person to suggest creating another bureaucracy. But the power to make rules and regulations needs to return to where it was intended. Congress should begin the process of divesting the executive departments and agencies of their rulemaking power and personnel.

For instance, right now there is a Department of Education in the executive branch. Congress could create the Congressional Department of Education under its own supervision where needed rules and regulations are developed. The staff and funding could be taken from the executive branch. The existing Department of Education would then be limited to enforcement and administrative actions. If new or modified rules were needed, they could inform the Congressional Department of Education of that fact and it would be the Congressional department’s responsibility to respond if Congress agrees.

Right now Congress has divested itself of responsibility. If agencies create problems for citizens or businesses, Congress simply points the finger at the executive branch and walks away. But if Congress had its own rulemaking agency, it couldn’t do that. It would either have to act to make changes or it would be held accountable.

This couldn’t be done overnight. The existing problem is simply too big and too complex for that to occur. Congress should start small. It should pick a new or expanding subject matter that doesn’t quite fit in any existing category and use it to establish the precedent. Instead of handing it to the executive branch through the usual delegation of rulemaking power, it should set up its own rulemaking body and keep it “in house” and under its own supervision. Then hand only the administration and enforcement part to the executive branch.

The shock waves would be fun to watch. After the initial confusion and outrage passes, Congress could then do it again and take the first step toward snatching back part of another agency or department that already exists. Over time…

Here is my modest proposal — that we reverse the historic move toward delegation of law making power to the executive branch by keeping that power in Congress through a recapture of bureaucratic agencies’ delegated authority and personnel.

Jon Stuebbe is retired after 20 years as a Kern County Superior Court judge. He was previously dean of California Pacific School of Law. The views expressed here are his own.