The following article was written by Dustin Romney, the Arizona Coalitions Director for the Convention of States Project.
For more than a hundred years progressives have been successful at expanding the role of the state. In the early 20th century there may have been a good case for more regulation and oversight, though the evidence, partly chronicled in my new book, suggests otherwise. Today, however, there is neither a good case for government expansion nor any evidence to suggest that it will do anything but harm, generally speaking. It seems nowadays that government has grown so powerful and regulated so much that it appears to be grasping for ever-more-ludicrous ways to expand its power. For example, as I say in my book: "there may have been an argument for government to ensure a safe working environment, but now to hear people seriously argue that employers should be required to offer contraception to their workers is part of a tragic comedy." Regulators are clothed with vast power but because so much has already been regulated, there remains almost no sane way to use.
Enter the Department of Transportation. They are seeking to enforce Section 207 of the Passenger Rail Investment and Improvement Act of 2008. This legislation authorizes Amtrak, a quasi-private corporation to author regulatory standards together with DOT. Imagine General Motors writing regulations for the automotive industry. Of course, the other rail carriers sued and the Supreme Court just agreed to hear the case. The plaintiffs cite the non-delegation doctrine, derived from the first words of the Constitution after the Preamble: "All legislative powers herein granted shall be vested in a Congress of the United States..." Chapter 11 of my book chronicles how government gradually drifted away from that simple principle to the point where hundreds of agencies now legislate independent of Congress. The fact that SCOTUS even agreed to hear a case over a law that now delegates legislative authority to a private entity indicates that the tragic comedy continues.
Where will it end? One can hope that the Supreme Court can't possibly be dense enough to get this case wrong but its record doesn't exactly inspire confidence. Even if it does get it right we are still left with an army of independent and unaccountable legislators who continue to add to the already crushing regulatory burden. It is time for a Constitutional revival. The only way to overcome the Court's many years of misguided acquiescence to congressional delegation is to amend the Constitution to make it unmistakable that only Congress can legislate.