WHAT IS THE SOLUTION?
There are two solutions to these problems. One solution won’t happen by itself and the second solution is to force the first solution.
The first solution that will never happen
Congress can write its lofty goal bills without a lot of detail and the POTUS can sign the bills into law. However, instead of including that line that the Secretary shall create rules to make these goals happen, the law says that the Secretary must come back and present the rules that will solve these problems. The rules will then be debated by the Legislative branch and voted upon as individual bills (not rules) or as one big list at the choice of the legislators. This bill would then go to the POTUS for signature or veto.
In essence, the experts are actually used by legislators to come up with solutions. The process starts with the legislature agreeing that they need a comprehensive solution to a big problem. They can write this as a big lofty goal: “animals that are getting too small in number and may be at risk of extinction shall be protected from humans.” We can all agree on this big loft goal. It can have the title “SAVE THE ANIMALS” and everyone can feel good.
Several months later (or years or decades), the experts can come with well-thought-out rules to help achieve this goal such as the saving of the Zizzer-Zazzer-Zuzz habitat. Everyone will know that these particular 38 Senators and 115 Representatives didn’t care about the particular forests that the Zizzer-Zazzer-Zuzz needs to live but thank goodness the other 62 Senators and 320 Representatives chose to prevent people from living in those particular forests so that the Zizzer-Zazzer-Zuzz could thrive.
This would allow those people that didn’t think that their business or home should be affected by the protection of the Zizzer-Zazzer-Zuzz to vote for or against the elected officials who took a stand that they didn’t agree with. Similarly, if a citizen adored the Zizzer-Zazzer-Zuzz then a citizen could vote for or against an elected official that voted against the protection.
This is how the system should work. Elected officials should vote for or against bills and their constituents back home should reward or deny them a new term based on their votes. But now we have a system where the elected officials are hiding behind Administrators that create detailed rules and the elected official never has to go on record as supporting that detailed rule.
Why is this better and why won’t this happen?
This is better because it is more difficult and it forces Congressman, Senators, and POTUS to put his/her name down as being for or against the rule by making it a law.
Harder is good because then frivolous rules will simply die. The federal government will simply get out of the lives of all people affected by the fringe rules and regulations that are simply too controversial to withstand the heat of a public vote by an elected official.
It will also open the process up to the states to take action. Right now, states cannot listen to their constituents and take action if that action were to conflict with something from the federal government. The federal government has priority over all state governments. So if there is a federal law (or a federal rule/regulation), then the states are shut out of the process.
However, if there is no law because it was too detailed and wonky to get passed by the Legislators, then the states can act. This means the really tough things to pass at the federal level can be experimented on at the state level. Different states can try different solutions to the problem. Eventually, a best practice is developed and then it would be easy to pass it at the federal level – the federal elected officials could just say to their professional writers, “Copy what these fifteen states wrote because they nailed it.” Bada-bing bada-boom – DONE!
Oh yeah, I almost forgot to explain why this won’t happen. The reason is simple – it is too hard to do and it would reduce the power of the Legislative Branch and the Executive Branch. It would also shrink the power of the Administrative Fourth Branch (you know, the one that doesn’t constitutionally exist). No one wants their job to be harder. It is much easier to just write lofty goals and then go on a junket to France to study why French wines are better than California wines. All of this detail would take a big cut in their private and partying lives.
The second solution to the problem
Remember the 3rd branch of the government? The judicial branch? They are the ones that are empowering this system by saying that they treat rules and regulations just like laws. All they have to do is stop doing that.
All it would take to stop the madness and force the first solution above to happen is that the Supreme Court simply stops interpreting rules as laws. If Justice Neilelena Sotothomanaughbergito (yes, this is a really bad combination of a bunch of Supreme Court justice’s names:Neil-elena Soto-thom-anaugh-berg-ito ) wrote in her majority opinion, “Until a rule, individually or as a group, has been affirmed by the elected branch of Congress according to its rules of voting and then signed by the President of the United States, it shall only be an opinion by the various agencies and shall not be considered to have the full force of law.”
Bada-bing bada-boom – DONE!
This one ruling by the Supreme Court would return our Federal government to a three-branch form of government. It would take amazing steps to shrink the federal government. It would return power to the states which are by definition closer to their citizens than the federal government and therefore the government would be closer to the ideal of being responsive to its citizens rather than dictatorial over the citizens.