Whether legitimacy, democracy, accountability, non-partisanship, or separation of powers motivates the sentiment, there are a number of ways, albeit controversial, to reform the federal regulatory state:
(1) Codify the principle in McGrain v. Daugherty (1927) as it applies to regulatory decision-making, forcing agencies to publish jurisdictional statements in the federal register prior to beginning investigations or enforcement actions. This would have avoided many of the due process issues at the center of the LabMD case.
(2) Expand the GAO bid protest process to cover discretionary spending including grants and cooperative agreements. This would avoid cronyism and corruption associated with administrative earmarks.
(3) Get rid of permanent committees and their staff. Outsource all committee work to public interest law firms and private law firms with expertise. This would prevent the collective action / bureaucracy problems that plague committees and create monetary incentives to fight the bureaucracy with the goal of doing a good turn for the American people.
(4) Amend the organic statutes behind the "independent" agencies, GAO, the Inspectors General, and the Librarian of Congress to remove the President from their appointment and control, making them pure Article I entities. This prevents the dual principal problem: where an agency becomes more responsive to the White House in the face of multiple congressional oversight committees.
(5) Remove the role of the President in appointing judges to the Court of Claims, the Bankruptcy Court, etc. to make those courts pure Article I courts. This enables Article III courts to supervise the adjudications of legislative courts - the latter for which can provide advisory opinions and rule on political questions.
(6) For each "independent" agency, solve the IG gap (the problem where you have two agency heads - a chief enforcement officer and a Board yet the IG only oversees the enforcement and policy process, not the adjudicators) by requiring two IGs per agency. This prevents the recent problem where NLRB Chairwoman Wilma Liebman engaged in improper ex parte communications but ultimately was inscrutable by the IG because he directly reported to her in order to oversee the policy-making functions of the agency.
(7) Abolish statutes that give Congress the ability to sue without the Justice Department. Do the same for the independent agencies, i.e. remove FTC/SEC/FERC independent litigating authority. For instance, the Senate and its committees have independent subpoena-enforcement via 28 U.S.C. § 1365(a).
(8) Require all agency settlements of any kind to go through notice and comment rulemaking if they are not subject to a judicially-approved consent decree. This avoids the Bank of America slush fund issue which was a clear violation of theMiscellaneous Receipts Act.
(9) Require all statements or guidelines for enforcement to go through notice and comment rulemaking to comply with 5 U.S.C. 552(a). Clarify the Paperwork Reduction Act as an affirmative defense against noncompliance. This would have presented an affirmative defense for small businesses caught in the regulatory crosshairs, like Rhea Lana's.
(10) Clarify that public interest plaintiffs are agents of Congress under FOIA and the APA by controlling the quality of the regulatory review bar through the establishment of a commission that regulates who can validly represent the interests of Congress in challenging agency drift from congressional intent. This will end the expensive gotcha litigation that has low precedential value yet allows the bureaucracy to request bigger budgets from Congress in order to deal with caseloads. The Bipartisan Legal Advisory Group could be expanded to create a Bar Association unique to select government investigations and oversight/enforcement practitioners.
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This article was originally published on LinkedIn.