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In an exclusive interview with Bold Business, James Copland, Director of Legal Policy, Manhattan Institute, says that the key to legal reform in the United States is to scale back the federal regulatory state and give power back to Congress and the people. He states that a bold idea to tackle this regulatory overreach is to “return law-making to the Congress.”

Copland claims that Congress today, “writes broad, open-ended statutes” and they “delegate most of that rule-making to the Executive Branch.” However, experts warn that Congress has delegated too much authority. And most of that power doesn’t really reside with the President, instead it ends up being held in the halls of the hundreds of federal agencies where long-term employees actually shape and enforce the law.

Congress holds the power to make and approve laws, to declare war, regulate commerce, establish the rules of immigration. But in many cases they cede this power to the administrative and regulatory agencies, giving them broad authority to actually make the rules and execute those rules. Of course, these agencies are loosely accountable to the President, but they are in no way accountable to the people.

If we can rein that in, then we can return some of the power to Congress and in effect to the people.

It is important to remember that the executive branch agencies could not have seized this power on their own. Congress gave it to them by failing to right laws that were detailed and specific. The good news is that this is actually fairly easy to remedy. Congress simply needs to follow the Constitution and create laws that are complete, enforceable, and understandable. When they do that, they can insist that agencies follow the law as written.

However, Congress is extremely unpopular. Today, most of the real decisions are made within the White House, in the administrative state and by regulatory bodies.

Obama used an unprecedented number of executive orders to change laws, from healthcare to immigration, taxes to welfare, and even invoked public safety orders to give police and government agencies the upper hand over ordinary citizens when there is conflict.

Congress is the Root of the Problem

According to The Week, the problems facing the legal system in America are structural, and the root stems from Congress. Congress is supposed to step in if the President steps beyond his prescribed role, but Congress has almost abandoned this task. Instead they criticize from the choir, rather than exerting the power that they do have under the Constitution. It almost seems as if Congress benefits from letting agencies and the President take the blame for actions which must be done, rather than setting the guidelines and parameters from the beginning.

State of the Union in 2005

“The administrative actions that congress has been delegating to the executive branch fundamentally reshape the way our government works. If we can rein that in, then we can return some of the power to Congress and in effect to the people, and if we can get the judges to do common sense reviews of these regulatory actions then we’ll be making real progress by scaling back the federal regulatory state,” Copland said.

Congress previously passed the REINS Act which allowed them to take back some of the power from the executive branch. REINS has been hailed successful because it gives the people’s representatives a final say over how the laws they pass are executed. However, the act only concerns economically significant federal regulation of over 100 million USD.

It may well take many bold actions by Congress to restore the balance of power.

James Copland is a Senior Fellow and a Director of Legal Policy at the Manhattan Institute. He was named to the National Association of Corporate Directors “Directorship 100” list, which designates the individuals most influential over U.S. corporate governance. Before joining the Manhattan Institute, Copland was a Law Clerk for Ralph K. Winter on the U.S. Court of Appeals for the Second Circuit and a Management Consultant with McKinsey and Company in New York.


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