WASHINGTON — Unlike the dog that chased the car until, to its consternation, he caught it, Republicans know what do with what they have caught. Having completed their capture of control of the legislative branch, they should start with the following six measures concerning practical governance and constitutional equilibrium:
•Abolish the Consumer Financial Protection Bureau. This creature of the labyrinthine Dodd-Frank law violates John Locke’s dictum: “The legislative cannot transfer the power of making laws to any other hands. … The power of the legislative … [is] only to make laws, and not to make legislators.” The CFPB is empowered to “declare,” with no legislative guidance or institutional inhibitions, that certain business practices are “abusive.” It also embodies progressivism’s authoritarianism by being, unlike any entity Congress has created since 1789, untethered from all oversight mechanisms: Its funding, “determined by the director,” comes from the Federal Reserve.
•Repeal the Independent Payment Advisory Board. This expression of the progressive mind is an artifact of the Affordable Care Act and may be the most anti-constitutional measure ever enacted. It certainly violates the first words of the first section of the first article of the Constitution: “All legislative powers herein granted shall be vested in a Congress.” The IPAB’s purported function is to achieve the ACA’s purpose of cost containment by reducing Medicare spending. When the IPAB’s 15 presidential appointees make what the ACA calls a “legislative proposal” limiting reimbursements to doctors, this proposal automatically becomes law unless Congress passes a similar measure cutting Medicare spending. Under this constitutional travesty, an executive branch agency makes laws unless the legislative branch enacts alternative means of achieving the executive agency’s aim. The ACA stipulates that no measure for the abolition of the IPAB can be introduced before 2017 or after Feb. 1, 2017, and must be enacted by Aug. 15 of that year. So, one Congress presumed to bind all subsequent Congresses in order to achieve progressivism’s consistent aim — abolishing limited government by emancipating presidents from restraint by the separation of powers. This impertinence by the 111th Congress requires a firm rebuke by the 114th.
•Repeal the ACA’s tax on medical devices. This $29 billion blow to an industry that provides more than 400,000 jobs is levied not on firms’ profits but on gross revenues, and comes on top of the federal (the developed world’s highest) corporate income tax, plus state and local taxes. Enough Democrats support repeal that a presidential veto might be overridden.
•Improve energy, economic and environmental conditions by authorizing construction of the Keystone XL pipeline. The pipeline would reduce the risk of spills by reducing the transportation of oil in railroad tankers.
•Mandate completion of the nuclear waste repository in Nevada’s Yucca Mountain. The signature achievement of Harry Reid’s waning career has been blocking this project, on which approximately $15 billion has been spent. So, rather than nuclear waste being safely stored in the mountain’s 40 miles of tunnels 1,000 feet underground atop 1,000 feet of rock, more than 160 million Americans live within 75 miles of one or more of the 121 locations where 70,000 tons of waste are stored.
•Pass the Regulations from the Executive in Need of Scrutiny (REINS) Act. It would require that any regulation with at least a $100 million annual impact on the economy — there are approximately 200 of them in the pipeline — must be approved without amendments by joint resolution of Congress and signed by the president. “In effect,” writes the Hudson Institute’s Christopher DeMuth, “major agency rules would become legislative proposals with fast-track privileges.” By requiring legislative complicity in especially heavy federal burdens, REINS is an ingredient in the recipe for resuscitating Congress, which has been far too eager to cede legislative responsibilities to the executive branch.
Such measures may be too granular to satisfy the grandiose aspirations of those conservatives who, sharing progressives’ impatience with our constitutional architecture, aspire to have their way completely while wielding just one branch of government. But if, as is likely, the result of Congress doing these and similar things is a blizzard of presidential vetoes, even this would be constructive. The 2016 presidential election would follow a two-year demonstration of how reactionary progressivism is in opposing changes to the nation’s trajectory. Congressional actions provoking executive rejections would frame the argument about progressivism. And as Margaret Thatcher advised, first you win the argument, then you win the vote.