Would You Like Some Cheese With That Whine


Politico has a post up about how some bureaucrats and former bureaucrats are upset with Congress reviewing and repealing regulations under the Congressional Review Act of 1996. Toward the end of the post it has a quote from one of the regulators that shows his upside-down view of the constitution.

“I believe there’s a good chance that, in a legal challenge, that a court will overturn Congress’ actions here as an unconstitutional usurpation of the executive branch’s powers,” he said.

Uh, no. The ability of the bureaucrats to regulate does not generally flow from the President’s powers under Article II. It’s is generally derived from Congress delegating it’s Article I powers to the Executive Branch. What Congress can delegate, it can take back.

10 thoughts on “Would You Like Some Cheese With That Whine

  1. I disagree, there is a Con Law argument that the Congressional Review Act is unconstitutional. Congress can only act via legislation that satisfies the presentation clause; ie., that is adopted by both Houses and either is signed by the President, allowed to become law without signature or overrides his veto. INS vs. Chadha 462 U.S. 919 (1983) and Bowsher v. Synar, 478 U.S. 714, 733 (1986). That said, I don’t expect the Trump administration to contest most of these Congressional regulation overrides.

    • My understanding is that the president does have to sign off on them (it says “President Trump is expected to sign the repeal” in the article.)
      Admittedly though, the problem here is that Congress has improperly delegated legislative authority to the executive branch via the Administrative Procedures Act.
      The only way around this is to gather that the agencies promulgating the law are creations of congress and ultimately acting on behalf of congress (which as it goes would still violate the delegation doctrine) and congress is overriding their actions.

    • The CRA is a traditional bill, IE it is approved by the House and Senate then presented to the President for signature, therefore there are no ConLaw concerns. The permanent bureaucratic class is just freaking out.

      Note, the CRA also requires the bureaucrats to submit a report to Congress on a new regulation when it is approved, and the timer for the CRA begins when that report is received. The permanent bureaucrat class had so much contempt for Congress that they never submitted these reports throughout the Obama years. Therefore, the timer for CRA implementation for *all* of the regulations promulgated by Obama’s administration never started… and Trump has started compiling these required reports for submission.

      • No, the resolution of Congress of disapproval of the regulations is not satisfying the presentation clause. It doesn’t matter if the original CRA did.

        • It’s not a resolution, it’s a full up bill that is passed under the aegis of CRA. It goes through precisely the same mark up and constitutional process and is deliberately classified as a public law. That is why once the CRA is invoked the regulation in question cannot be reissued without Congress actively passing a law to do so.

    • “Congress can only act via legislation…”

      That simply isn’t true. For instance the Constitution clearly grants the Congress oversight. It can hold hearings. It can subpoena. It can hold people in contempt, etc. None of those acts require any legislation. They are inherent powers of Congress– as is impeachment.

  2. Bottom line, this is a turf war between the temporary politicians and the permanent bureaucrats. The latter are worried they may not have the upper hand any longer. I hope they’re correct.

  3. I disagree. There is no place in the Constitution that says Congress is able to give up its responsibilities to write the Laws. All Laws start in Congress. No Laws start in the Executive Branch. All Executive Branch-generated Laws are unconstitutional. And EPA regulations are Executive Branch-generated Laws; therefore, unconstitutional.

    • The Constitution clearly states that Congress writes laws and the executive executes the laws. It is nearly impossible to write laws in such detail that they successfully micro-manage the actions of law enforcement in every circumstance. To the extent that the law as written allows for discretion. the Constitution grants that power to the executive branch.

      The real Constitutional question are provisions against one Congress telling a subsequent Congress what it can, and cannot, do. To the extent that one Congress delegates it powers, it is only binding on that Congress, and, not any subsequent Congress.

  4. This another good time to note the utter insanity of the #nevertrump movement. We are a nation in dire financial condition. We have a twenty trillion dollar national debt, and much larger unfunded liabilities. Deregulation was one the last bullets that could be fired. Trump ran on the platform of firing that bullet, while Hillary Clinton prattled on about “equal pay,” whatever that means, that would amount to putting the regulatory state on steroids. This is clearly known and understood before the election, but, for certain folks preferred Hillary Clinton anyway.

    Can any of the nevertrumpers here explain why having the state act as paymaster over private hiring decisions was preferable to rolling back onerous regulations?

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