Skip to content
Search

Latest Stories

Top Stories

Congress must reassert its authority as a check on agencies' actions

Sign above an entrance to the Federal Trade Commission

The Founders had no idea lawmakers would create agencies like the Federal Trade Commission that could set nationwide rules with significant economic, political and social effects.

LD/Getty Images

Frazier is an assistant professor at the Crump College of Law at St. Thomas University. Starting this summer, he will serve as a Tarbell fellow.

The Congressional Review Act deserves your attention. Despite being on the books for decades, it’s only been used on a few occasions. That’s a shame. Though not among the original checks and balances, the CRA reinforces Congress’s role as the primary lawmaker by giving the House and Senate a chance to reject major agency rules.

If used more frequently, concerns about too many regulations, and flawed regulations, might diminish. Yet, Congress has largely treated this power like a power drill in the back of the garage — capable of solving a lot of problems but left unused.


The Founders assumed that each branch of government would vigorously assert its powers. That assumption is baked into the design of the Constitution. Omitted from that design is what’s become known as the fourth branch of government: agencies. Though the Founders expected the president to rely on executive branch staff to help execute the law, they had no idea subsequent lawmakers would create agencies like the Federal Trade Commission that could set nationwide rules with significant economic, political and social effects.

Sign up for The Fulcrum newsletter

That’s precisely what the FTC did with its recent rule banning noncompete agreements across the country. The commission estimates that the rule will affect 30 million contracts. Though the rule includes some exceptions, it will have wide-ranging impacts on key sectors of the economy. In defense of the FTC, the rule did not emerge out of thin air. Thousands of Americans submitted comments on a draft version. Commissioners sorted through that feedback. They also consulted a range of studies. Still, there’s a meaningful and stark difference between the processes behind a rule and those behind a law.

The most important difference is that the American people cannot vote out FTC commissioners. There’s no direct means of accountability. Even if the FTC set forth a series of questionable rules, commissioners can only be removed by the pPresident for specific, limited reasons.

In contrast, if and when a member of Congress supports a bill that does not align with the interests of their constituents that member will have no means of evading voter scrutiny. This substantial difference in accountability mechanisms can have a substantial impact on the decisions made by officials. Put differently, there are certain rules that Congress might never be able to write into law because any attempt to do so would trigger popular awareness and popular backlash. That’s why Congress enacted the CRA.

Under the CRA, every agency rule must go before Congress. If majorities (even bare ones) of the House and Senate disapprove of a rule, the president then has the chance to concur with Congress or to veto its decision. On paper, this procedural safeguard should make agencies think twice before trying to sneak a major regulation by the public. Reality has played out much differently. The rare use of the CRA by Congress has made the law a show horse — nice to look at but not functional.

The noncompete ban set forth by the FTC marks an opportunity for Congress to find its ambition. Congress, not agencies, is tasked with passing monumental legislation. Though the legislative process is arduous and unpredictable, that's exactly the way the Founders planned it. The constitutionally proper step would be for Congress to use the CRA to disapprove of the noncompete ban and initiate its own processes for legislating such a rule.

Our Constitution is intentionally set up like a Rube Goldberg machine. When things occur too simply, it’s a big red flag that the machine is actually malfunctioning. Substantial legislation should be the product of robust discourse among our representatives, not five unelected commissioners.

Read More

Just the Facts: Trade Deficits

Businessman grabs the head concept with business chart on scoreboard

Getty Images//Witthaya Prasongsin

Just the Facts: Trade Deficits

The Fulcrum strives to approach news stories with an open mind and skepticism, striving to present our readers with a broad spectrum of viewpoints through diligent research and critical thinking. As best we can, remove personal bias from our reporting and seek a variety of perspectives in both our news gathering and selection of opinion pieces.

However, before our readers can analyze varying viewpoints, they must have the facts.

Keep ReadingShow less
WHO Withdrawal is Not Going to Make America Healthy Again
World Health Organization flag, wide brush stroke on transparent background, vector.

WHO Withdrawal is Not Going to Make America Healthy Again

One of the first executive orders signed by President Trump on the evening of his inauguration was to immediately withdraw the U.S. from the World Health Organization (WHO), the United Nations agency tasked with coordinating a wide range of health activities around the world. This did not come as a surprise. President Trump tried to pull this off in 2020 amidst the COVID-19 pandemic.

Upset at how WHO handled the pandemic, President Trump accused it of succumbing to the political influence of its member states, more specifically to China. However, the structure of the WHO, which is made up of 197 member states, prevents it from enforcing compliance or taking any decisive action without broad consensus. Despite its flaws, the WHO is the backbone of global health coordination. When President Joe Biden came into office, he reversed the decision and re-engaged the US with the WHO.

Keep ReadingShow less
RFK Jr. and Making America Healthy Again

Politician Robert F. Kennedy Jr. looks on during the UFC 309 event at Madison Square Garden on November 16, 2024 in New York City. (Photo by Chris Unger/Zuffa LLC)

(Photo by Chris Unger/Zuffa LLC)

RFK Jr. and Making America Healthy Again

“Do you think Robert Kennedy Jr will be good for the health of our country?” asked one of my relatives at a recent gathering. I looked up and locked eyes with her, starting to smile at what I assumed was a wry remark from a successful professional who recalls gratefully standing in line to receive the polio shot during its national rollout, the very vaccine for which Kennedy’s associates have sought to revoke government approval.

Seeing her earnest expression awaiting an answer, I quickly masked my disappointment. She was serious. I was stunned.

Keep ReadingShow less
Independents as peacemakers

Group of people waving small American flags at sunset.

Getty Images//Simpleimages

Independents as peacemakers

In the years ahead, independents, as candidates and as citizens, should emerge as peacemakers. Even with a new administration in Washington, independents must work on a long-term strategy for themselves and for the country.

The peacemaker model stands in stark contrast to what might be called the marriage counselor model. Independent voters, on the marriage counselor model, could elect independent candidates for office or convince elected politicians to become independents in order to secure the leverage needed to force the parties to compromise with each other. On this model, independents, say six in the Senate, would be like marriage counselors because their chief function would be to put pressure on both parties to make deals, especially when it comes to major policy bills that require 60 votes in the Senate.

Keep ReadingShow less