By Edwin Feulner
Heritage Foundation Founder
President Obama opened the annual Easter Egg Roll at the White House this year by saying it was a bittersweet moment: it would be his last time hosting it.
The term “Easter egg” is also used to indicate little surprises hidden on a website or DVD menu. Of course, those surprises are pleasant and intended to be found. As the Obama administration approaches the end of its term, however, we can expect a different type of surprise — and certainly not the friendly kind.
I’m referring to federal regulations, which have been growing at an alarming rate. The 2015 “Red Tape Rising” report from The Heritage Foundation (the 2016 one will be out soon) found that 27 new major rules were added in 2014, for a total of 184 over the first six years of the Obama administration. The cost, as estimated by the regulators themselves: $80 billion annually. (And that’s not even the full amount.)
Who pays that cost? You and me. It’s passed on to all of us, even non-taxpayers, in the form of higher prices for everything.
But for now, let’s consider a bigger question: Why do federal agencies have so much power to begin with? In simplest terms, it’s Congress’s fault. The lawmakers you elect to, well, make law, have gotten into the habit of passing remarkably vague legislation.
The law your senator or representative votes for to do Good Thing X is often full of blanks. Somebody has to fill in those blanks — to specify all the details about how X will be accomplished. Increasingly, that somebody is not a man or woman who’s directly answerable to you, but someone you’ll never meet. Someone who can’t be voted out of office for failing to look after your interests.
The situation is exacerbated by something known as the Chevron Doctrine, which evolved out of a Supreme Court case in the 1980s. It boils down to this: When a federal court is interpreting an ambiguous federal law, it should defer to the agency that enforces it when deciding what the law means.
So if, for example, the Environmental Protection Agency says some pollution-prevention law should be interpreted a certain way, the court will — unless there’s some compelling reason to rule otherwise — let the EPA’s reading of the law stand.
Rep. Tom Marino (R-Pa.) recently provided an example of how things can go awry under the Chevron Doctrine. Noting the presence of a small stream by several farms near his home, he said the EPA and the Army Corps of Engineers tried to push through a rule stating that because a farm sometimes has some standing water after a rainstorm, the Navigable Waters Act gives the EPA control over that farm.
“I’ve been living out where I live for 15 years, and I have yet to see a ship go through that little stream that goes past my house,” Marino said.
Now, by and large, Congress likes the Chevron Doctrine. It makes the job of legislating easier, obviously. No need to sweat the details — let bureaucrats do that! The Executive Branch likes it, too: When a rule is challenged in court or elsewhere, an administration can point to the Chevron Doctrine.
But We the People shouldn’t like it. As Sen. Mike Lee (R-Utah) has put it:
“You don’t trust [the power to legislate] to other people. As hard-working, well-intentioned, well-educated and highly specialized as they might be, the men and women who work within our Executive Branch agencies don’t work for you. You cannot fire them, almost regardless of what they do. You have no opportunity to review their work at regular intervals. And that is a recipe for tyranny.”
He’s right. Our system of government relies on checks and balances. Under the Chevron Doctrine, things have become remarkably unbalanced. For the sake of our freedoms, it’s time to recalibrate.
Ed Feulner is the founder of The Heritage Foundation (heritage.org).