One way to reduce regulations? Give states the power to reject them.
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The current session of Congress, much like the ones that preceded it, has been filled with gridlock, recycled policy debates and little progress on the challenges facing our nation.

But on the day the House adjourned until November, a ray of hope emerged: A resolution to combat the regulatory state and revive federalism was introduced. There may be hope after all for the republic.

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Rep. Rob BishopRobert (Rob) William BishopOvernight Energy: House moves to block Trump drilling | House GOP rolls out proposal to counter offshore drilling ban | calls mount for NOAA probe House GOP rolls out energy proposal to counter Democrats offshore drilling ban Republicans pour cold water on Trump's term limit idea MORE (R-Utah) introduced H.J. Res. 100 on Sept. 28. This simple and elegant resolution would amend the Constitution "to give States the authority to repeal a Federal rule or regulation when ratified by the legislatures of two-thirds of the several States." The states could repeal "any Presidential Executive order, rule, regulation, other regulatory action, or administrative ruling issued by a department, agency, or instrumentality of the United States."

The amendment would help redress the massive power grab by the federal government at the expense of the states that has continued nearly unabated since the administration of President Woodrow Wilson. This trend is contrary to the notions of our constitutional republic. As James Madison wrote in Federalist Number 45

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. ... The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

This balance has been turned on its head primarily by the rise of the regulatory state and federal rule-making. This regime involves Congress handing over authority to bureaucrats to issue regulations and rules that impact nearly every area of our lives, from education and transportation, to the financial sector and the environment. 

As the Competitive Enterprise Institute has explained, regulations cost our economy $1.885 trillion in 2015, and the cost of complying with regulations is higher than what the IRS will likely take in from individual and corporate taxes in 2015. About the only way citizens can impact the regulatory state is through the notice and comment period, when they can object to or support proposed regulations before they become law. 

The regulatory state has spawned a bureaucratic bouillabaisse of rules: major rules, significant rules, economically significant rules, rules issued under good cause, interim final rules and direct final rules. Consequently, a body of law has developed around the regulatory state: the Administrative Procedure Act, the Paperwork Reduction Act, the Regulatory Flexibility Act, Title II of the Unfunded Mandates Reform Act and the Congressional Review Act. Some of these laws have attempted to gain control of the leviathan that the regulatory state was destined to become.

But the flood of regulations continues. 

Enter Bishop's resolution. H.J. Res. 100 would give state legislatures —legislative institutions that are very close to the people — the ability to repeal regulations that, in their view, are harmful or burdensome. Citizens of states will be able to lobby their state representatives more easily than lobbying Congress. That will in turn allow states to claw back their powers by undoing regulatory actions that undermine their authority and the economy.

When Washington gets too big and bullies the states, the constitutional amendment proposed by H.J.Res. 100 would be a resource the states can utilize to check a federal government that is more zealous about promoting the regulatory state, executive orders and administrative rulings, than the guarantee of the 10th Amendment.

A recent article in The Washington Post highlighted a study by Jennifer Bachner and Benjamin Ginsberg about bureaucrats in Washington. The article explained that:           

For their part, the bureaucrats are aware that they're not average Americans. In fact, respondents to the survey tended to overestimate the distance between their own opinions and those of the general public. More often than not, they misjudged how the public felt about federal spending on various programs, such as education or social security or defense.

Bachner and Ginsberg call this phenomenon the fallacy of "false uniqueness." They interpret it as a sign that many public servants have internalized a sense of superiority. Perhaps, as they write, "officials and policy community members simply cannot imagine that average citizens would have the information or intellectual capacity needed to see the world as it is seen from the exalted heights of official Washington." 

These bureaucrats and their views are the inevitable outcome of a federal government that prioritizes bureaucratic fiefdoms at the expense of states and makes rolling back regulations about as onerous as possible. H.J. Res. 100 would redress the grievances of citizens who know that their federal government has assumed a degree of control over the states that is forbidden by the Constitution.

Amending the Constitution should be done deliberately, thoughtfully, and for the most important of reasons. H.J.Res. 100 satisfies these requirements and then some. Its debate and passage by Congress and two-thirds of the states will go a long way to help restore the balance between the people and those who govern on their behalf.

Siefring is director of government relations for FreedomWorks. His views are his own. Follow him on Twitter @NeilSiefring.


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