a1p issue no 1 - the case for congressional empowerment

7/25/2019 A1P Issue No 1 - The Case for Congressional Empowerment

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Article I Project February 3, 2016 | Issue No. 1

POLICY BRIEFThe Case for Congressional Empowerment

U.S. Senator Mike LeeU.S. Representative Jeb HensarlingU.S. Senator Jeff FlakeU.S. Representative Cynthia LummisU.S. Representative Dave Brat

U.S. Representative Barry LoudermilkU.S. Representative Gary PalmerU.S. Representative Mia LoveU.S. Representative John RatcliffeU.S. Representative Mark Walker

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Executive Summary

The authors of the Constitutionintended Congress to be first among thefederal governments three co-equalbranches. Endowed with the power tolegislate, tax, spend, and oversee the

weaker Executive and Judicial branches while simultaneously held to tighterpublic accountability Congress wasmeant to be the driving force in federalpolicymaking.

In recent decades, however,Congress has surrendered too much ofthat role to the Executive Branch, andrelegated itself to the backseat of

American politics. This upending of ourconstitutional order has led not only tobad policy, but inexorably to greaterpublic distrust for our governinginstitutions.

The good news is that what apassive Congress has broken a strong

Congress can fix. The constitutionalpowers necessary to put arepresentative, accountable federalgovernment back to work for the

American people are still right there inArticle I, ready to be reasserted.

And so, today we are launching theArticle I Project (A1P), a new network ofHouse and Senate conservatives workingtogether on a new agenda ofcongressional empowerment andaccountability, to restore Congresssproper constitutional role.

A1P will develop and advocatespecific, structural reforms large andsmall in four key areas at the heart ofWashington dysfunction: reclaimingCongresss power of the purse; reforminglegislative cliffs; restoringcongressional power over federalregulations and regulators; and reiningin executive discretion.


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Congress retains the power to insiston a federal government of, by, and forthe people. A1P is committed to re-

constitutionalizing Washington to makethat happen.

The Problem: Congressional Weakness

as Constitutional Crisis

The federal government is broken.And while there is plenty of blame to goaround, only Congress can fix it.

This is not an indictment of any oneleader, or party, or even of a singlegeneration of Congresses. Thedysfunction in Washington today hasaccreted over decades, under Houses,Senates, presidents, and Supreme Courtsof every partisan combination.

Nor is every misguided or unpopularfederal policy a direct act of Congress.

But that actually points toward the rootproblem. Increasingly harmful federallaws are increasingly written by peopleother than federal lawmakers. Moreover,these laws are imposed via processescontrary to those contemplated in theConstitution, and often with the explicitpurpose of excluding the Americanpeople from their government andshielding policymakers from popular

accountability.

Though all three branches of thefederal government have contributed tothis toxic state of affairs, Congress bearsprimary responsibility, both for theproblem and its solution. In many ways,

the federal government is a mess todaybecause Congress allows it to be.

Congresss constitutional powers not just the power to legislate, butspecifically the powers of taxation,spending, advice and consent andimpeachment are, by the Foundersdesign, orders of magnitude strongerthan those of the Executive or JudicialBranches. Congress not coincidentallyauthorized in Article I of theConstitution was meant to be firstamong co-equal branches ofgovernment.

The stability and moral legitimacy ofAmericas governing institutions dependon a representative, transparent, andaccountable Congress to make federallaw. Today, Congress willfully shirks thisresponsibility, and permits and indeed,often encourages the Executive Branchto do work the Constitution assigns to

the legislature. Congresss refusal to useits powers to do its duty is the rootcause of Washingtons dysfunction andof the public scorn it invites.

This dysfunction is a large andgrowing problem for the Americanrepublic. And for conservatives, itrepresents something like a crisis for tworeasons. First, conservatives believe inconstitutionalism and the rule of law as

bulwarks of freedom and justice in oursociety.

And second, the transfer oflawmaking power from Congress to theExecutive Branch tends to thwart thekinds of policies that conservatives tendto advocate policies that limit the size


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and scope of government and protect theequal rights and opportunity of all

Americans.

Its no wonder Congresss jobapproval ratings are at historic lows. Inmany ways were not even doing our job,and the nation is paying for it.

The Solution: The Article I Project

That is why today we are creating

the Article I Project.

A1P is a new network of House andSenate conservatives working togetheron a broad agenda of structural reformsto strengthen Congress by reclaiming itsconstitutional legislative powers thattoday are being improperly exercised bythe Executive Branch.

Specifically, A1P will focus on

restoring congressional power in fourkey areas at the core of Washingtons and Americas broken status quo:

1. Reclaiming Congresss power ofthe purse;

2. Reforming legislative cliffsthat unduly empower theexecutive;

3.

Reclaiming congressionalauthority over regulations andregulators;

4. Reforming executive discretion.

Power of the Purse

Congresss constitutional authority

over the federal budget is exclusive andabsolute. Yet for years, Congress hastaken progressively less care inexercising this core responsibility.

More and more of the budget hasbeen put on autopilot, while theremaining discretionary spending isoften appropriated without sufficientdebate, amendment, or scrutiny.Congress passes continuing resolutions

or omnibus appropriations bills thatlump together all or most line-items inthe federal governments multi-trilliondollar budget together into one all-or-nothing vote. What little actualdeliberation there is on funding bills isdone behind closed doors, by a handfulof Senators and Representatives. Thisprocess invariably advantages well-connected special interests whose

lobbyists and contacts can influencethese secret talks, while the hundreds ofmillions of ordinary Americans notrepresented in that select group are cutout of the process altogether.

The federal budget is now so large approximately $4 trillion and the workof program-by-program oversight sotime-consuming, difficult and politicallythankless, that individual members of

Congress have little incentive to even tryit.

This helps explain why the majorityof federal spending is now mandatory appropriated automatically rather thanannually reviewed and approved. Thesingle largest program in the federal


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government Social Security has evenbeen removed from the official budgetaltogether, operating on auto-pilot in a

parallel fiscal universe where mostspending isnt appropriated and otherspending supposedly doesnt even count.

Even within the formal budget,Congress has made many agencies self-funding, empowering them to collectand spend taxpayer money at their owndiscretion, without relying on a votefrom Congress and without a penny evertouching the U.S. Treasury.

Under the current budget process (ifit can even be called that anymore)Congress by choice exerts shockinglylittle affirmative control over federalspending, which makes it harder (a) forRepresentatives and Senators to holdExecutive agencies accountable forquality control and cost-effectiveness,and (b) for Americans to hold

Representatives and Senatorsaccountable for policy mistakes.

This state of affairs directlycontradicts the Founders design of asystem of checks and balances. TheConstitution does not grant Congress thepower of the purse for its convenience,but to protect the American people tocheck what the Founders knew werepoliticians natural impulses toward

fiscal profligacy. Though ignored, thatcheck is still embedded in Article I of theConstitution. So A1P members willpropose structural reforms to reverse theperverse political incentives of thebudget process, forcing Congress tomake fiscal policy decisions in the open

and subject to public scrutiny andaccountability.

Specifically, A1P members willrecommend reforms to:

Modernize the federal budgetprocess for a post-earmarkCongress;

Bring federal entitlementprograms on budget to restorefiscal integrity to the process;

Make self-funding agenciessubject to congressional

appropriations; Reform the Congressional Budget

Office and Joint Committee onTaxation procedures to allow forgreater transparency in Congresssofficial fiscal analysis.

Legislative Cliff Reform

One of the most effective waysCongress suppresses public scrutiny offiscal policymaking and thereby

weakening its position vis-a-vis thepresidency and in the eyes of afrustrated citizenry is the so calledlegislative cliff.

Unlike many controversial policydecisions which can be avoided or

delegated to the Executive Branch, somepolicies still require congressional action.The passage of appropriations(spending) bills and increasing thefederal debt limit are the two mostprominent, but there are other examplesinvolving, for instance, expiringtransportation and tax policies.


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Most members of Congress seeextensions of these policies as must-pass legislation because of the

consequences of not passing them.

In the past, members tough votesfor these bills were made easier throughthe use of spending earmarks, whichallowed members to compensate forunpopular positions by delivering specialspending programs directly to theirstates or districts. But after years ofpublic outrage about wasteful andabusive earmarks (like the infamousBridge to Nowhere), both the Houseand Senate banned the practice in 2011.

Now that reluctant Senators andRepresentatives cannot be enticed withearmarks, they are instead threatened

with cliffs. Congressional leaders oftendelay consideration of controversiallegislation like the debt limit andspending bills until right before the

current authorizations expire, when thecosts of inaction are highest. Even if bothHouses begin working to movelegislation in a timely fashion, theExecutive Branch has no incentive to notdrag out the process until the 11thhourin order to preserve the leverage thatcliffs hand to the presidency. Up againstthese manufactured crises, members facea political shake-down Vote for animportant, expensive bill of the presidents

liking, with little debate or amendment,possibly without even reading it, or be

blamed for the harmful consequences of

going over the cliff even if it is a

presidential veto that forces us over.

Thus, in Washington today, reformis often castigated as dangerous, whileperpetuation of the dysfunctional status

quo is praised as responsible.

Legislating by cliff certainly gets billspassed, but the costs in institutionalcredibility are enormous. Cliffssimultaneously undermine Congresssconstitutional authority over fiscal policyand invite public contempt for thepoliticians responsible for theunnecessary brinksmanship. Even thestructure of the debates surroundingsuch cliffs inherently favors thepresident, since the dynamics of thesedebates deny legislators the time to dotheir jobs and punish them for refusingto comply with the presidents demands.

Therefore, A1P members willrecommend reforms to:

Prevent government shutdowns

and incentivize Congress and thepresident to act on crucial fiscalbills well before statutorydeadlines;

Eliminate the risk of default andprioritize spending to end debt-limit brinksmanship.

Reclaiming Congressional Authority

over Regulations and Regulators

Most of the federal governmentsinvolvement in Americans lives lawsthat say do this or dont do that arenot passed by Congress anymore at all.They are imposed unilaterally by theExecutive Branch through the regulatoryprocess.


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In 2014, for instance, Congresspassed and the president signed 3,291pages of new laws. But federal agencies

issued 79,066 pages of new regulations about 24 times as much.

This is a constitutional disaster,effectively subjecting the Americanpeople to government without consent.Its also an economic disaster. Federalregulations are estimated to cost the

American people between $1 trillion and$2 trillion per year. And that moneydoesnt just disappear. Those trillions inregulatory costs are transferred redistributed upthe economic scale from consumers who pay artificiallyinflated prices for goods and services toall the lawyers, consultants, and special-interest middle-men who get rich off thered tape.

Not only that, under the governingstatute of the regulatory state - the

Administrative Procedure Act thearmies of bureaucrats who write theregulations also enforce them. And afterthey charge, fine, and threaten theiroftentimes innocent targets, the agencieseven serve as quasi-courts adjudicatingchallenges to their decisions.

Why would Members of Congressallow such an unfair, undemocraticprocess to guide 96 percent of new

federal laws? Once again, for theirown convenience. By delegatingregulatory power to the ExecutiveBranch, Congress liberates itself from thehard work and ruthless accountabilityintrinsic to constitutional legislating. Theregulatory system, by contrast, allows

Congress to pass intentionally vague billsordering the Executive Branch to achievegauzy, laudable goals like clean air

or affordable health care withoutbothering with the devil in the details.

This is a win-win for the politicians,who get to take credit for doingsomething without bearing the blame

when things go wrong. Of course, its awin-win for the bureaucracy, too, whichgets to impose its will on the Americanpeople with impunity. But its a lose-losefor the American people, who are subjectto an ever more intrusive and expensiveregulatory state they cannot easilychange at the ballot box.

And all of it occurs, ultimately, withCongresss passive consent. Therefore

A1P members will develop andrecommend structural reforms that forceCongress to assume its exclusive Article Ipower to make laws and regulate

interstate commerce, including:

Establishing a congressionalregulatory budget that caps thepermissible economic impact ofregulations under each federalagency;

Modernizing the AdministrativeProcedure Act to put regulatoryagencies under closercongressional supervision;

Requiring new major regulationsto be affirmatively approved by

votes in the House and Senatebefore implementation;

Modernizing the civil servicesystem and clarifying the status ofagency Inspectors General.


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Reforming Executive Discretion

One of the main obstacles to

checking the regulatory state is the legalprinciple of administrative deference,

which was established in its current formin the 1984 Supreme Court case ChevronU.S.A. v. Natural Resources Defense

Council. The ruling in the case held thatfederal courts must accept an agencysinterpretation of any federal law so longas the agencys opinion is reasonable.

Under this Chevrondeference

standard, Executive Branch agencies cando almost anything they want, withoutcongressional approval, so long as theyhave a clever enough justification. Theagencies lawmaking powers are furtherinsulated from challenges because theregulatory appeals process is so riggedagainst American citizens that few evenbother fighting back in the first place,even when they have done nothing

wrong. Regulatory fines can beextremely expensive especially for theinnocent but under the current systemof executive discretion, even unfairpunishments can be more affordablethan justice.

The Constitution was designedspecifically to protect the Americanpeople from such arbitrary governance.Congress has the power and the

responsibility to define standards ofexecutive discretion, to ensure theregulatory system reflects rather thansubverts government by consent.Therefore, A1P members will offer policyreforms to:

Clarify the deference courtsshould give to executive agenciesinterpretation of congressional

statutes as well as their ownregulations;

End the abuse of guidance,dear colleague letters, and otherregulatory dark matter thatagencies use to bring aboutpreferred outcomes withoutissuing formal rules;

Balance the scales to ensure a fairprocess to citizens, communities,

and businesses targeted by federalregulators.

Conclusion

What A1P seeks is not so much tochange Congress as to revive it, to makeit once again live up to its foundingpurpose. Congress exists to make the

laws of the United States with all thethankless work and political risk thatcomes with that job. Our mission is tomake Congress once again responsible,both in the sense of discharging itsconstitutional duties and making itselfaccountable for the consequences.

The Founders meant for Congress tobe strong not for the sake ofpoliticians ambitions, but to protect and

empower the American people. Under astrong, transparent, and accountableCongress, the federal government bydefinition works for the Americanpeople, instead of the other way around.Congressional weakness is the foremostreason for the publics dissatisfaction


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with the institution, and a key cause ofAmericans distrust of Washington.

Though A1P is comprised ofconservatives, the Projects goals are inno way partisan. Whether the Americanpeople lean left or right at any givenmoment, only a strong Congress canensure federal policy reflects theconsidered will of the public, and issubject to public oversight on ElectionDay. And indeed, the 2016 presidentialcampaign has been nothing thus far ifnot a cry from the American people toreassert their rightful authority over afederal government that has growncontemptuously indifferent to the

interests of too many ordinary citizens.Indeed, this seemingly intractabledysfunction has led some Americans to

entertain avenues of change outside theletter and spirit of the Constitution.

Yet, just as Congresss surrender ofits constitutional powers to the ExecutiveBranch has led to political dysfunctionand public distrust, a reclamation ofthose powers by the House and Senatecan lead to a healthier, happier republic.

All that stands between Americans

and a renewed government of, by, andfor the people is the will of the Congressto finally step up and do its job.

a1p issue no 1 - the case for congressional empowerment

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