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FreedomWorks’ Bill of the Month for November 2020: A Constitutional Amendment to Require Legislative Approval for Certain Regulations, H.J.Res. 71

11/02/2020

FreedomWorks is proud to announce that our bill of the month for November 2020 is an amendment to the Constitution of the United States to require legislative approval for certain regulations, H.J.Res. 71, introduced by Rep. Scott Perry (R-Pa.). This amendment would require congressional approval for any regulation for which one-fourth of either chamber has signed a petition of disapproval.

One of the most important, yet least noted, changes in our form of government over the last few decades has been the inordinate growth of the federal bureaucracy. Since the 1980’s, every successive administration, except for the Trump administration, has implemented more economically significant regulations -- regulations that will have a larger economic impact than $100 million -- than its predecessor, with the Obama administration blowing all others out of the water. Now, bureaucrats in Washington are the ones who decide the majority of federal policy through regulation.

Because Congress has consistently given up more and more of its Article I authorities to the executive branch, the legislature has effectively lost control of the administrative state. Rep. Perry’s constitutional amendment seeks to reassert some of Congress’ authority over the executive branch by creating a permanent mechanism outside of the Congressional Review Act (CRA) to force Congress to review and address any regulation which one quarter of legislators disagree with.

While Congress does technically make our laws, more often than not, legislators choose to write vague legislation that outlines a framework, leaving administrative agencies to fill in the blanks with regulations and guidance. Especially with regards to war powers and trade, Congress has delegated much of its constitutional authority to the executive.

As we outlined in our recent issue brief, Restoring the Balance of Powers: The Constitutional Role of the Legislative Branch, “A shift back to the proper role of the Legislative Branch will take time and political will, but Congress can, and must, begin to address these issues.” A strong legislature is crucial for our system of government. The restoration of Article I and an empowered Congress are our strongest bulwark against federal encroachment on our rights and liberties.

All too often, when Congress passes legislation, administrative agencies charged with interpreting and implementing the new statutes stray from the spirit of the law. Currently, under the CRA, eliminating a federal regulation requires a joint resolution of disapproval from both chambers. Given the state of congressional gridlock, passing a joint resolution through both houses has become practically impossible without a unified government. To make matters worse, the 60 day timeline imposed by the CRA further complicates legislative intervention in regulatory matters. You can find more information about the CRA and existing proposed changes in our latest issue brief, The Congressional Review Act: What to Know Before the New Congress Begins.

Under the new structure of Rep. Perry’s constitutional amendment, Congress’ role in the administrative process would be significantly enhanced. Under this proposal, whenever one quarter of either chamber transmits a petition of disapproval to the President regarding some regulation, the regulation in question would be stalled until both chambers pass a joint resolution approving the regulation. If both houses do not jointly approve a petitioned regulation, the regulation would be considered null and void.

Granting a minority -- 109 Congressmen or 25 Senators -- the right to challenge new regulations will ensure congressional vigilance over the administrative state. Since the majority maintains the right to overrule the petitioners, this amendment can not be used to stifle entire political agendas. Rather, it presents a mechanism by which a minority can simultaneously bring issues to the attention of the Congress while expressing its disapproval of administrative actions and forcing others to go on the record about the issue at hand.

Though constitutional amendments are notoriously difficult to pass and implement, Rep. Perry’s proposal presents Congress, and the American people, with an excellent opportunity to begin restoring proper legislative authority. We appreciate the hard work of Rep. Perry and hope that other members of both chambers of Congress will wake up to this reality and support this constitutional amendment to require legislative approval for certain regulations, H.J.Res. 71.