By Daren Bakst
Taxation without representation is the antithesis of freedom and runs counter to the basic principles guiding our nation. So why is regulation without representation not considered an equal threat to freedom?
Federal agencies constantly issue regulations that fail to reflect the will of lawmakers who represent the people.
The Supreme Court recently shot down such attacks on freedom when it issued rulings striking down the Centers for Disease Control and Prevention’s nationwide eviction moratorium during the pandemic and the Obama Environmental Protection Agency’s Clean Power Plan rule that would have turned the agency into the nation’s electrical grid manager. In both instances, the agencies were not implementing law so much as they were creating it.
The Supreme Court may help to block some of these threats to our representative form of government, but the judicial branch is generally going to step in only in the most extreme instances. That’s why Congress needs to do its part to ensure agencies don’t ignore the critical importance of representative government.
This is more important than ever with the Biden administration drastically expanding the size and role of the administrative state, whether through its continued student loan forgiveness efforts or the EPA’s final rule to help kill off gas-powered cars.
But what can Congress do? Fortunately, there are good solutions for Congress, such as the REINS Act. This legislation would require Congress to approve certain regulations before they could go into effect.
There’s also a new legislative idea to address regulation without representation by expressly prohibiting agencies from issuing various types of rules that, by their nature, ignore the will of Congress.
For example, is it reasonable to think Congress, without saying so directly, would want agencies to issue regulations that expressly or in effect force businesses to shut down or ban goods or services? Or that it would want agencies to issue regulations that are outside their expertise or that would reshape or change the nature of an entire industry?
Of course not. Such rules should be prohibited without clear authority from Congress.
Lawmakers can take their cue from the Supreme Court in this regard. Legislative reform should be informed in part by the major questions doctrine, a judicial doctrine fleshed out by the Supreme Court in the 2022 case, West Virginia v. EPA.
In this case, the court explained that the major questions doctrine addresses “a particular and recurring problem: Agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.”
In these instances, the court expects there to be clear congressional authorization to justify the asserted agency power.
As Supreme Court Justice Neil Gorsuch stated in his concurrence, the major questions doctrine is concerned with “basic questions about self-government, equality, fair notice, federalism, and the separation of powers.”
Congress should start by reforming the law governing the regulatory process, the Administrative Procedure Act of 1946. The APA was supposed to provide protections for those affected by regulations and has been referred to as a “bill of rights” for regulated parties. But this law has been a failure in large part because it fails to address regulations without representation. This needs to change.
If we are concerned with taxation without representation, then we should be equally concerned with regulation without representation and, for that matter, with any law created outside the bounds of our representative form of government.
Daren Bakst is director of the Center for Energy and Environment at the Competitive Enterprise Institute.
