For a long time we’ve said it in these pages: All regulatory laws should have an expiration date (we suggested: not more than ten years). Here’s one time, back in April of 2016: “Modest Proposal — Sunset ALL Laws”
In that way, lousy laws can die a merciful, well-deserved death, and bad laws that need to be reconfigured can be reconfigured. And Congresses and legislatures throughout the land can concentrate on the truly important things. Someone once said something like, “A nation that obsesses over who goes to what bathroom in a high school has mostly solved all the major problems.”
Well, guess what: it happened! In Idaho. And the great Kevin Williamson, who plainly reads this blog, wrote about it.
You can read Williamson’s excellent piece about it… here. Here’s a key passage:
“Idaho’s governor now has sweeping authority to eliminate thousands of state-approved rules without public participation or lawmaker oversight,” the Associated Press reports. That is not exactly right: “Any rules the governor opts to keep will have to be implemented as emergency regulations, and the legislature will consider them anew when it returns next January,” James Broughel of Mercatus writes. “Governor Brad Little, sworn into office in January, already had a nascent red tape cutting effort underway, but the impending regulatory cliff creates some new dynamics. Previously, each rule the governor wanted cut would have had to be justified as a new rulemaking action; now, every regulation that agencies want to keep has to be justified. The burden of proof has switched.”
Well… yeah! The burden of proof should switch. The supporters of every rule or regulation controlling aspects of how we live our lives should always be forced to make, and remake, and remake, over and over and over again, the case for their rule. Or the rule should go away.
Here’s more from Williamson’s essay:
The administrative state is, in many ways, the real government at the federal, state, and local levels. Partly because of legislative sloth, partly because of the complexity of the regulatory tasks that states have taken up, legislatures have taken to outsourcing a large part of lawmaking to the executive branches, drawing up fuzzy statutory directives that the bureaucracies create rules in pursuit of policy goals defined with varying degrees of precision. Think of the so-called Affordable Care Act and its endless litany of “the secretary shall . . .”
Here’s more from Williamson:
A great many of the laws relevant to business are created this way. There are many setbacks: One is that there is no democratic accountability for bureaucrats, meaning relatively little political pain for creating cumbrous or counterproductive rules, and little incentive to consider costs relative to benefits. And as sclerotic as legislatures can seem, bureaucracies can be paralytic by comparison. Legislators at least respond to electoral incentives and listen to cheesed-off constituents. The DMV lady, not so much. Bureaucratic inertia enabled by legislative laziness and incompetence can have crippling effects on investment and innovation. (red emphasis added)
Anyone who’s ever been to the DMV recognizes the sheer on-the-noseness of what Williamson wrote. And the DMV example drives home the importance of our point: Laws, rules and regulations should be justified regularly, or they should go away.
Here’s still more:
Little’s (Idaho Governor Brad Little) chief aide in the matter promises that “we would not make any decision that is not supported by the agencies.” But that is the wrong way to look at it: The agencies serve the people and were created by the people’s elected representatives. They are the people’s instruments, not their masters. Their preferences and conveniences are not to be understood as the controlling concerns.
Read that last phrase over and over and over and over and over and over and over again: “The agencies serve the people and were created by the people’s elected representatives. They are the people’s instruments, not their masters. Their preferences and conveniences are not to be understood as the controlling concerns.”
But, “the agencies” are not the people’s instruments, and they are the people’s masters. And that’s why the laws implementing them need to be justified and re-justified and re-justified, over and over and over and over again.
As we’ve said over and over and over and over and over again.
Near the end of his great piece, Williamson gives us another excellent summation paragraph. Here, for your delectation:
Idaho has an opportunity here not only to reform regulations that were already on the books but, more important, to reform the way regulations are created in the first place — and its first priority should be pushing the responsibility for the contents of the state’s rules and regulations as close to the legislature as possible, ensuring that not only the broad policy goals but the nitty-gritty details of regulation are voted on by the people who are given the name lawmakers for a reason.
And we’re happy that both the elected leaders of the state of Idaho and the great Kevin Williamson read this blog.