In his Wall Street Journal op-ed North Dakota Sen. Kevin Cramer asks a very good question:
Why does Congress exist if the bureaucracy can assert legal authority solely because it wasn’t explicitly prohibited? If federal agencies can invent power to dictate their preferred policies to circumvent Congress, we no longer have three coequal branches of government.
This problem is larger than the FHWA. Bureaucracies routinely assert authority they don’t possess. This directly conflicts with the Supreme Court’s decision in West Virginia v. Environmental Protection Agency (2022), which held that on matters of great political or economic significance, agencies must identify “clear congressional authorization†for their claimed authority. The FHWA’s own rationale admits it has none.
Further, the agency’s rule isn’t workable, as highlighted by comments a majority of states submitted that were concerned about or opposed to it. The rule imposes requirements with no recognition of urban and rural differences, assuming mass transit could be a solution. The notion of a bus lane through soybean fields or a subway stop at a cattle ranch is laughable. The rule suggests increased electric-vehicle adoption could help reduce emissions if mass transit isn’t viable. Never mind that EVs lack traits many rural drivers need, such as batteries that work well in extreme cold and have the necessary range for our wide open spaces.
I would ask a follow-up question. If you believe that the federal bureaucracy does, indeed, have that authority, what do you mean by ‘democracy”? I genuinely have no idea what it means in that context. Federal bureaucrats are not elected by anybody and do not serve at the will of anybody who was elected.
More than anything else his question illustrates why we need civil service reform.
In theory Congress exists to write clear laws and rules so the what he complains about doesnt happen. Instead they write vague laws and farm lots out to the executive branch. Oh, they also spend lottos time investigating Hunter Biden, well past the time when most have decided to never vote for him again. Maybe they could do something more useful like a 9th Benghazi investigation?
Steve
Delegation to executive bureaucracy is inherent in government. Even in the best circumstances, legislatures are not capable of making detailed decisions, especially in changing circumstances.
One of the first bureaucracies was established at the very beginning of the Republic, when Congress approved invalid veterans’ benefits. Congress delegated the authority to decide who was eligible to the President who delegated it to some other guy (Alexander Hamilton).
Consider the thousands of promotions in the Department of Defense which the Senate is supposed to approve, as if the Senate has the time, inclination, or ability to make such decisions on an individual basis. Is Congress really supposed to decide whether some newly discovered chemical should be regulated or how much should be allowed to be released? If so, that means a business could pollute long before Congress could get around to acting. Or should Congress delegate the decision to experts, but with legal parameters of how to reach a decision?
Nothing is simple in modern society. Just driving a car means involving yourself in a vast regulatory environment, with stop signs, yield signs, traffic lights, signal lights, speed limits, staying within the lines, vehicle inspections, proper disposal of motor oil, etc.