Stop the Administrative State by Using the Administrative Procedures Act

Congressional oversight with teeth

United States Capitol

Where is the coordinated national-level Republican counterattack against Joe Biden’s myriad leftwing executive orders and presidential memoranda? Where is the Republican National Committee? Where is the national Republican communication strategy, including daily press conferences, that exposes the unconstitutional actions being pursued by the Biden administration?

As noted in the Federal Register, Joe Biden signed 77 executive orders in 2021 and 27 in 2022. He has also signed out 77 total presidential memoranda to date, as well as dozens of presidential determinations and administrative orders.

Executive orders are official presidential directives that generally have the force of law. They are intended to direct actions within federal agencies (the “Executive Branch” of the federal government).

All executive orders are supposed to identify whether the order is based on the constitutionally granted powers or those delegated to a president by Congress. They are subject to legal review, and federal courts can cancel those determined to be unconstitutional – or which violate existing federal law. Congress can also revoke an executive order through passage of superseding legislation.

Presidential memoranda are similar in purpose and intent but are not required to be reported in the Federal Register nor are they required to include a justification of presidential authority, as noted here. These are used to micro-manage the federal bureaucracy and often exceed the constitutional authority of presidents. They can also be revoked through congressional action.

Constitutional lawyer and scholar Mark Levin identified several of the Biden executive orders (among many) that are blatantly unconstitutional, but which have not been challenged by Republicans here:

EO 13990, which canceled the Keystone XL pipeline, violated the Takings Clause of Fifth Amendment of the US Constitution: “...nor shall private property be taken for public use, without just compensation.”

EO 13985, which promotes race-based discrimination throughout the federal government, violated the equal protection clauses in the Fifth and Fourteenth Amendments that protect the right to “life, liberty and property” without interference from the government.

EO 13988, which mandates that any schools that receive federal funding must function as if biological males who claim to be females are the same, and vice versa, or risk losing that funding. This EO also violated the equal protection clauses in the Fifth and Fourteenth Amendments.

The EOs and presidential memoranda signed by Biden provide direction (and cover) for agencies that lean forward in the conversion of those directives into administrative law. The problem is that unconstitutional executive orders beget unconstitutional administrative laws and regulations within the federal agencies that comprise the “administrative state,” and once written and implemented are very difficult to excise. Furthermore, many rules combine executive, legislative, and judicial functions in violation of the separation of powers implemented by the US Constitution. Federal agencies should not be “judge, jury, and executioner” when it comes to implementing and enforcing federal laws.

Additionally, many of the denizens of the administrative (or regulatory) state are authoritarians who believe in the power of government to regular businesses and individuals, as well as to ensure equal outcomes for Americans (the Marxist diversity, equity, and inclusion agenda favored by the Democrat Party). These excesses need to be constantly guarded against through strong congressional oversight of all federal agencies. With the rapid rise of the administrative state over the last 100 years, it could be argued that Congress has failed in their oversight responsibilities.

In 2022, some fiscally conservative Republicans were fixated on stopping the Democrats’ push for an “omnibus spending bill” that would fund Democrat spending priorities through most of 2023. The ever-reliable Democrat media, including CNN, sabotaged that effort by characterizing the debate as “good governance” (funding the Democrats’ excesses) versus “politics” (Republican efforts to reign in out-of-control government spending). Never mind the ballooning $31+ trillion national debt, or that fact that the “good governance Democrats” and their RINO allies haven’t passed a single appropriations bill during the Democrat-controlled 117^th Congress (the normal process for approving all federal funding!). “Not a single appropriations bill has moved through subcommittee, committee, or come to the floor of the Senate this Congress”, stated Senator James Lankford (R-OK), as reported here.

In the end, eighteen gutless RINOs, including Minority Leader Mitch McConnell (RINO-KY) and his heir-apparent John Thune (RINO-SD) voted in favor of the Omnibus bill, setting the table for even higher inflation this year as that federal spending kicks in. So much for the “fiscal conservatism” planks in the GOP platform that have been there since well before the Reagan era!

But while all attention was focused on that omnibus spending bill, a debt ceiling increase – and now on the Democrats’ clamoring to increase the debt ceiling to continue spending the country into hyperinflation and oblivious – the minions in the federal bureaucracy are busy writing administrative laws and extend federal regulatory control into every nook and cranny of America. Republicans in Congress should not lose sight of the continuing production of regulations that are being added to the Federal Register with each passing day.

As of 1 February of 2022, the Biden administration over 2000 proposed rules and over 3000 final rules were posted in the Federal Register, as noted here. Of those, nearly 90 are so-called “major” rules. A major rule is defined as having an economic impact of greater than or equal to $100 million, resulting in a major increase in costs or prices to consumers and businesses, or causing a significantly adverse effect on “competition, employment, investment, productivity, or innovation, or on the ability of the United States-based enterprises to compete with foreign-based enterprises.”

Republicans of yesteryear were concerned about the rapid rise of FDR’s administrative state. In 1946, Congress passed the Administrative Procedures Act, which laid out how federal agencies are supposed to make and enforce administrative laws and regulations. The Act requires providing for public involvement in the rule-making process itself, keeping the public informed of the content and formal rule-making process and procedures, and incorporating judicial review into the process.

That last requirement is particularly important, as administrative laws and regulations are subject to judicial review. However, the Republican Party has no apparent strategy to use the APA to expose federal regulations that average Americans would not support if made aware of them.

In one glaring example among many, in 2011, Barack Obama signed EO Executive Order 13583, “Establishing a Coordinated Government-wide Initiative to Promote Diversity and Inclusion in the Federal Workforce.” That EO formed the basis for implementing Marxist-inspired first unconscious bias training and now critical race theory training throughout the Dept of Defense that continues to this very day – and in fact was put on steroids by Biden’s EOs. It is absurd to believe that implementing Marxist CRT in DoD – and indeed now throughout the federal government – represents the “will of the people.”

The regulatory actions of the US Dept of Interior, US Dept of Commerce, the EPA, and even the US Dept of Agriculture related to the Democrats’ “Green New Deal” need to be carefully scrutinized, exposed, delayed, and defeated – through Republican lawsuits under the APA if necessary. Other actions that Republicans could take to defeat proposed new federal regulations that are unconstitutional include:

• Forcing federal agencies to hold well-publicized public hearings during the rule-making process

• Implementing a coordinated media campaign to inform and educate the public on proposed new rules

• Coordinating a campaign by Republican voters and activists to demand actions by Congress to stop agencies from implementing laws that bypass Congress and the will of the people

CONCLUDING THOUGHTS

Joe Biden has signed dozens of unconstitutional and otherwise questionable executive orders and presidential memoranda that are being written into administrative law throughout federal agencies. Many exceed his constitutional authority and indeed usurp the separation of powers in the US Constitution that requires Congress – not the President – to “write all federal laws.”

Congressional oversight – and indeed thwarting the passage into law of these arbitrary rules – has virtually disappeared over the last two years.

One weapon in Congress’s arsenal to conduct that oversight is the Administrative Procedures Act which provides provisions for involving the public in direct review and development of federal rules and regulations. Republicans should implement a formalized effort to coordinate with Republican voters to defeat unconstitutional rules and regulations.

The end.