Regulation Freedom amendment: The administrative state vs. the Constitution

The advantages of some form of a Regulation Freedom Amendment are immediately apparent. Photo: Capitol / Jacquie Kubin

WASHINGTON, November 26, 2013 — The rise of the administrative state — as epitomized by the more than 30,000 pages of federal regulations that implement Obamacare — over the last few decades is the greatest threat to America’s constitutional form of government. The Madison Coalition supports a “Regulation Freedom Amendment” to tame the administrative state and return it to constitutional principles.

The nature of the administrative state cannot be captured by more familiar terms such as “big government,” the “welfare state” or the “entitlement state.” The administrative state is defined by a structure that is at odds with the constitutional structure that favors separation of powers and voter input and oversight. The administrative state defies effective restraints on the various government entities that wield power over those voters. 

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As used by scholars today, the term “administrative state” describes a form of government that delegates massive discretionary lawmaking power to unelected bureaucrats in federal agencies who are then responsible for enforcing their own laws. They combine the roles of executive, legislature and judiciary. Examples of administrative agencies are the IRS, the EPA and OSHA.

The American political system began to evolve into an administrative state when the two main political parties began to free themselves from the constitutional constraints of limited government and started to compete with each other in the making of extravagant promises to potential voters. 

Because Congress does not have the manpower to work out the administrative details of these extravagant promises, they have had to offload that detail work onto an ever-expanding swarm of bureaucrats in federal agencies. A recent example of this is the controversial Obamacare law that required the regulators to create volumes of regulations 30 times larger than the original law itself. 

When Congress delegates wide discretionary authority to bureaucrats to create regulations, they are in effect giving bureaucrats the power to create laws because those regulations have the same legal status as the laws specifically passed by duly elected representatives in Congress. 

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The power of these federal administrative bureaucracies over the American people has grown so much over the years that the political scientist Joseph Postell has described these bureaucratic leviathans as nothing less than a “fourth branch” of the American government.

The first problem with elected representatives giving unelected bureaucrats the authority to make laws is that the voters have no real control over the faceless, nameless Civil Service-protected federal workers and the voters effectively lose their right to control the people who make the laws that govern their lives. 

The second problem with this governmental arrangement is that voters also lose the vital constitutional protection of separation of powers, which divides authority according to function among those who make the laws, those who execute them and those who adjudicate disputes. 

Within extremely wide limits, the various administrative agencies combine all three functions by creating the laws, enforcing them and acting as their own courts of appeal when the hapless citizens question their fairness.  Thus the structure of the administrative state substantially weakens the constitutional principles of representation and separation of powers that were designed by the Founders to give future generations of Americans the means necessary to protect themselves from their government masters. 

To understand this on a personal level, just try to imagine a plain citizen dealing with the IRS, a small farmer or landowner dealing with the EPA, or a small businessman dealing with OSHA. Your imagination or perhaps your own personal experience will convey, better than any dictionary can, the true definition of “arbitrary power.”

So can we the people do anything to restore the constitutional arrangement that James Madison referred to as “checks and balances?” An organization called the Madison Coalition says we can. The Madison Coalition points out that Article 5 of the U.S. Constitution gives the state legislatures the potential to be the countervailing force that checks the power of the largely unaccountable Washington bureaucracies. Article 5, coupled with the type of state legislation recently passed by Indiana, allows the state legislatures to completely bypass Washington and vote for an amendment that can check the routine excesses of the federal bureaucracies.  

The Madison Coalition calls this amendment the “Regulation Freedom Amendment,” although more informally it can be called the “Tame Obama’s Regulators Amendment.”

The actual wording and structure of such an amendment would be up to the states, but one proposal is to permit 25 percent of the states (13 total) or 25 percent of the members of either house of Congress to require the congressional leadership to formally call for a vote on any regulation that troubles the 25 percent. In this fashion the states can force Congress to actually take responsibility for any regulation the states find too expensive, onerous or just plain stupid, and the voters will have an opportunity to see what position their representatives will take. 

If congressional leaders choose not to take a transparent and potentially embarrassing vote, then that particular regulation automatically becomes null and void.  

The advantages of some form of a Regulation Freedom Amendment are immediately apparent. First, it nudges the political system away from the arbitrary government of the administrative state back toward the original idea of “responsible” representative government. 

Second, a Regulation Freedom Amendment will allow the states, which are among the principal victims of Washington’s arbitrary actions, to act as a constitutionally sanctioned countervailing check on the power of the fourth branch of government. 

Third, it will temper the arrogance of power that prevails among bureaucrats in certain federal agencies once they discover that the victims now have the means of fighting back. 

And fourth, the passage of one amendment may lead to another. 

The Coalition knows from actual field work that if you ask state representatives what is the one group of people in America that has the constitutional authority to check the power of the federal behemoth, surprisingly few will answer correctly that it is the 7000 state legislators.  After passage of a Regulation Freedom Amendment, those legislators will know from direct experience that they have such constitutional (Article 5) authority and they may use it to further correct the imbalance of power between the federal and state sovereigns. 

To those who share the Founders’ vision of liberty that responsible, balanced and restrained government is superior to arbitrary government, a compelling case can be made to add a new jewel to the American Constitution — the Regulation Freedom Amendment. Those who would like to learn more or help promote the Regulation Freedom Amendment may contact the Madison Coalition at

This article is the copyrighted property of the writer and Communities @ Written permission must be obtained before reprint in online or print media. REPRINTING TWTC CONTENT WITHOUT PERMISSION AND/OR PAYMENT IS THEFT AND PUNISHABLE BY LAW.

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Jeffrey W. Barrett

Jeffrey W. Barrett is the author of Impulse to Revolution in Latin America and has published articles in numerous academic journals and newspapers. 



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