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“Regulation Freedom” at the Wyoming Legislature

The Legislative Service Office continues to post bills that will be introduced next month when the Wyoming Legislature convenes for the 2015 General Session. Recent appearances include some proposed joint resolutions. On the House side so far there is a proposed amendment to the Wyoming Constitution that would make the Wyoming superintendent of schools an appointed position. Although this is the legitimate way to enact the notorious Senate File 104 (2013) following the Powers v. Wyoming case, it is likely to be met with controversy almost equaling the original SF104 effort. Perhaps controversial, but more uplifting is House Joint Resolution 1, “Regulation Freedom.”

HJ1, sponsored by Rep. Nathan Winters and Sen. Eli Bebout, would request Congress to amend the U.S. Constitution to include the following:

“Whenever one quarter of the members of the United States House of Representatives or the United States Senate transmits to the president their written declaration of opposition to a proposed federal regulation, it shall require a majority vote of the House of Representatives and the Senate to adopt that regulation.”

The amendment would then have seven years from submission to be ratified by the required three fourths of the United States pursuant to Article V of the U.S. Constitution.

Constitutional amendments are, of course, rather difficult to pass at the federal level. The last one passed in 1992, a mere 200 years or so after it was submitted to the states (hence the prudence of sunset provisions). Nearly four years ago our Wyoming federal congressional delegation introduced the Repeal Amendment, which would have empowered the states to approve resolutions to repeal federal laws or regulations by two-thirds vote. Despite some lively discussion on its merits (see here and here), the Repeal Amendment sadly went nowhere after its introduction.

The Regulation Freedom Amendment is less federalism, more separation of powers focused. It would empower Congress to exercise direct supervision over any regulation promulgated by any federal agency—that is, discretion over agency interpretations of federal law that is passed by Congress in the first place.

Regulation Freedom has a strong rationale. Currently, agencies promulgate regulations, and when those regulations (or the law upon which they are based) are successfully challenged in court these agencies often simply rewrite their regulations instead of turning to Congress for guidance. Look no farther than one of WyLiberty’s favorite focuses, the Federal Election Commission (FEC), to see just how zany the process becomes: The recent McCutcheon v. FEC ruling overturned a federal law and its attendant regulation, and instead of merely seeking to eliminate said regulation (which was unconstitutional in all of its applications), the agency is seeking public comment on whether it should revise unrelated regulations as a result of the case. (This includes, but is not limited to, regulating political speech on Internet.) I expect that a small, zealous group within the House or Senate could do a lot of good with the ability to bring regulations to a vote.

That said, recent events confirm that both houses of Congress can make the legislative process as (if not more) muddled than administrative rulemakings. Former House Speaker Nancy Pelosi still draws due snark for claiming we needed to pass Obamacare to find out what was in it, but the same can pretty much be said for the 1,000+ page “CRomnibus” bill that was just signed by the President into law. The bill apparently includes everything from major changes in federal drug policy to pension policy, packaged in a rushed spending bill. It’s not an understatement to say it’s a “total disgrace,” and represents little alternative to unelected bureaucrats simply making it up as they go along.

Our federal representatives and senators are still subject to elections, and Regulation Freedom may invigorate strong vigilance in the elected and electorate alike. Like the Repeal Amendment, it’s a safe bet Regulation Freedom will not get very far even if it passes here in Wyoming, but I expect it will at least fit nicely into a larger ongoing discussion about how to respond to the ever-growing federal encroachment against the states and their citizens.

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Saturday, 24 February 2018

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