By James H. Nolt
Previously I have argued that modern “conservatism” is sliding toward anarchism globally, with the U.S. leading the trend. There are many harbingers of this, but among the most potent is the REINS (Regulations from the Executive in Need of Scrutiny) Act that passed the U.S. House of Representatives in the first week in January but failed to become law when it died in the Senate. The REINS Act attacks James Madison’s wise design of the U.S. Constitution’s “checks and balances” against overweening power by any branch of government or any private interest. Before delving into the details of this proposed law, let us consider some philosophical foundations, since Madison’s constitutional ideas have affected constitutional theory worldwide.
American conservatives like to emphasize the role of the Constitution in protecting individual liberty against government intrusion, but that is not its purpose, according to Madison’s famous Federalist Papers No. 10. Madison conceived society as polarized by rival factions. Those he named were the rich and the poor, debtors and creditors, and manufacturers (then protectionist) and farmers (then free traders). These “parties” exist in society regardless of the form of government. This is a feature of capitalism itself, not just peculiar to American politics. Indeed, Madison wrote about this socio-economic polarization before the two-party system had even emerged in the U.S.
The problem Madison identified was how to craft a government that would be a “virtuous republic,” as defined by Aristotle: a government that operates in the broad public interest rather in the narrow self-interest of a faction. In classical Greece, Aristotle argued that democracies tended to represent the interests of the poor, whereas oligarchies represented the narrow interests of the rich. He preferred a middle way, what we call a republic, in which neither party would dominate at the expense of the other. Madison thought similarly.
Madison did not want a constitution that could be easily dominated by self-interested parties. His idea of “checks and balances” is thus not just to protect some abstract idea of individual liberty, but also to guard against tyranny by any private party over its adversary. Madison understood private power and interests.
Madison feared private tyranny because he knew the example of feudal Europe, where mighty landed lords and their knights abused lesser folk with near impunity while chronically feuding with each other. Closer to home, he also knew of the sectarian battles within various American colonies. For example, until religious liberty was enshrined in Virginia’s constitution in 1776, the dominant Episcopalian slave-holding planters routinely oppressed the backwoods Baptists. Madison knew what the modern Tea Party faction of the Republican Party have forgotten—that the colonists’ act of protest in the Boston Tea Party of 1773 did not primarily target the British Crown, but a powerful, armed corporate monopoly, the British East India Company.
A virtuous republic would actually promote some degree of gridlock. That is what checks and balances entail. Narrow or factional laws ought to meet opposition somewhere in the complex and diverse machinery of government. Government would suffer gridlock doing anything that did not accord with the broad will of diverse branches, houses of congress, and levels of government. It would tend to act only when truly public issues were at stake.
Each branch of government (legislative, judicial, and executive) gains office by different electoral processes and serve for varying terms of office so that the temporary dominance of public whims do not carry the entire government. Furthermore, the federal government’s powers are limited by the powers held by state and local governments.
Modern “conservatism” is ironically following the more radical constitutional agenda of the French revolutionaries in privileging the elected people’s representatives at the expense of judicial and executive powers (a system that quickly descended into anarchy and then monarchical tyranny). Conservatives constantly rail against “activist” judges and the supposedly illegitimate overreach of executive agency regulations. The effect of such attacks is to privilege Congress over the other branches, unbalancing the Constitution.
The REINS Act is a case in point. It aims to deny the authority of the executive branch to enact regulations to implement the laws Congress has passed. Very few laws, no matter how detailed, include all the regulatory specification required for their implementation. For example, Congress has enacted environmental bills such as the Clean Air Act and the Clean Water Act that specify goals and objectives, but do not list every procedure or standard required to implement these goals. Instead these bills entrust to an executive agency, the Environmental Protection Agency (EPA), the job of hiring specialists and consulting scientific experts to develop and improve standards. If the EPA overreaches, Congress is free to amend the law.
The problem is that enacting and amending laws able to win a majority of both houses and avoid a presidential veto is not easy. Congress is subject to considerable inertia. Old laws stay on the books even after a majority of the current Congress no longer favors them, as is the case with the Obama-era Affordable Care Act, simply because replacing them is not easy.
The REINS Act would burn away all this “checks and balances” inertia with a flamethrower. It says that executive agencies cannot enforce any new rule under existing statutory authority if its potential impact is greater than $100 million over two years (a highly ambiguous criteria) without explicit congressional approval. If Congress does not assent, the proposed rule automatically lapses.
Consider an example. Suppose Congress passes bridge safety standards mandating that all federally funded bridges are safe for heavy vehicle traffic for 50 years with routine maintenance. Obviously, few lawmakers are civil engineers. Furthermore, the means of attaining such a goal will change as material science advances. The Department of Transportation (DOT) would devise the detailed rules for contractors to meet the standard. Contractors generally like such detailed standards, because they know that if they meet the explicit standard, even if a bridge fails, it is unlikely they could be successfully sued.
Yet suppose the contractors are unscrupulous. Meanwhile, the detailed DOT rules lapse because a gridlocked Congress cannot be bothered to review every rule in every agency. The contractors cut corners, using sub-standard steel and unseasoned concrete. Perhaps the contractors are foreign firms. After they build the bridge and get paid, whether it lasts 50 years or not is little trouble for them.
Yet the law is still on the books. Only its detailed implementation has lapsed. Therefore, if the faults of the bridge appear or it collapses, the builders might be sued (if they remain extant) for failing to follow the intent of the statute. A lack of rules merely increases uncertainty as more implementation shifts from a priori administrative rules to ex post facto judicial review. REINS solves nothing. Instead of Congress fixing its own laws, it would undermine all well-intentioned attempts by agencies to implement them and then dump the resulting chaos into the overburdened court system. This is worse than gridlock; it is anarchy. It assures that even useful, widely desired regulations become problematic. Corruption would flourish, not least among private contractors. Instead of each branch of government doing its constitutional job, all would be overwhelmed and undermined.
Bills like the REINS Act have appeared first in the U.S., but since they are pushed by anarcho-conservative funders such as the Koch brothers, similar laws will likely appear elsewhere in the world. They originate with capitalists who are pushing to be free from governmental regulation, to free private power from the confines of democratic government. Madison would be appalled.
James H. Nolt is a senior fellow at World Policy Institute and an adjunct associate professor at New York University.
[Photo courtesy of Architect of the Capitol]