Fighting Back Against the Regulatory State

“The inability of democratic assemblies to carry out what seems to be a clear mandate of the people will inevitably cause dissatisfaction with democratic institutions…. The conviction grows that if efficient planning is to be done, the direction must be ‘taken out of politics’ and placed in the hands of experts, permanent officials or independent autonomous bodies” (Friedrich Hayek, The Road to Serfdom)

There have been many bills and lots of activity in Richmond during this most recent session of the General Assembly. At times it is difficult, almost impossible, to keep up. Everyone who watches these proceedings has their favorite initiatives and ones they hope to see die. The fact is, however, that few Virginians pay any attention at all and you would be hard pressed to find more than a few of your neighbors who are even aware the Assembly is in session, never mind what bills they are considering.

All Virginians who favor limited government power should take note of one initiative, however, Senator Jill Vogel’s (R-Fauquier) “Regulatory Rollback Amendment,” SJ 295, and a similarly successful House version, HJ 545, offered by Delegate Christopher Head (R-17, which includes parts of Roanoke City, Roanoke County and Botetourt County). Vogel’s Amendment, SJ 295, passed the Senate for its first time on February 7th by a 21-19 margin. It reads as follows:

SJ 295 “[g]rants to the General Assembly the authority to review any administrative rule to ensure it is consistent with the legislative intent of the statute that the rule was written to interpret, prescribe, implement, or enforce. The amendment provides that after such review, the General Assembly may approve or reject, in whole or in part, any rule as provided by law and that the approval or rejection of a rule by the General Assembly shall not be subject to veto by the Governor.”

Constitutional amendments must be passed by both chambers in two consecutive years, and then be approved by the voters during state wide elections. The Governor cannot veto them. That is a good thing, because should it pass both chambers, and again next year, and be approved by the voters, the Regulatory Rollback Amendment could put the General Assembly firmly in control by giving them a de facto veto over the Governor’s administration when it comes to regulations.

In support of her effort, Jill Vogel (who is also a candidate for Lieutenant Governor, and who, full disclosure, I support) put out a statement saying, “I introduced this amendment because of the economic challenges Virginia faces in competing with other states for new jobs and investment. Strengthening our checks and balances and providing additional regulatory transparency will help right-size Virginia’s regulatory scope by maintaining the core regulations we need while easing the burdens imposed by rules which are outdated or overly broad.”

This may be the most significant legislative initiative of the year, and promises to be a major issue in the upcoming election as well as next year. Candidate Vogel is sure to benefit from popular support of reduced regulatory power. Conservatives know that the Executive Branch, whether in the Commonwealth or at the Federal Level, has increasingly used regulations to increase the scope and power of government – well beyond the intent of the legislative branch and the people, and therefore should be very pleased. Business people who know that the Governor and his administration have allowed Virginia to suffer from over-regulation and a decreasing competitive environment vis-à-vis other states should be optimistic. Freedom loving people everywhere who know that it is the legislature where their voice is most powerful should welcome the opportunity to fight back against the ever-growing administrative state. This initiative is a welcome move by the legislature to take back its rightful power to make law and seize back the control of what the state does from the “experts” and “permanent officials” who have promulgated regulations to substitute their judgement for the will of the people.

Senator Vogel and Delegate Head have seized on a mood, and they are spot on. The people are no longer going to permit the executive branch to legislate via regulation. After decades of regulatory growth, which often amounts to legislation from the executive, the people are primed to swing the pendulum back towards legislative branch power.  As Senator Black was quoted in the Richmond-Times Dispatch, “unelected bureaucrats who enact their own laws….diminishes the power of voters to influence their government.”

Without doubt this move will bring about a struggle, and opponents are already conjuring up fears of violations of the separation of power. The close votes before crossover (21-19 in the Senate and 54-40 in the House) are an indication of how difficult it may be for the people to prevail. Senator David Marsden was keen to make a stand, saying “We’re messing with the balance of power…,” and that the amendment is “very dangerous.” One would be correct in asking Mr. Marsden, “dangerous to whom?” I submit it is, in fact, dangerous to unelected regulators. Hopefully the voters will get to decide in 2018. If given the opportunity, it is likely they will opt for more power to the people, choose to roll back the regulatory power of the executive, and vote to get off of the Road to Serfdom. If they do, we will have Jill Vogel and Chris Head to thank.

So as to not post an article without an obligatory Trump reference, I quote the President during his inaugural speech. “January 20th, 2017 will be remembered as the day the people became the rulers of this nation again.” Hopefully Virginians are paying attention, and will once again assert their right to rule the Commonwealth.

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