Senator Hatch Remarks at the Federalist Society National Lawyers Convention
As Prepared for Delivery
It is truly an honor to be here with you today. The Federalist Society has long been near and dear to my heart. I have been a proud member for decades. And contrary to some of the Left’s more vivid fantasies, our Society isn’t some secret right-wing cabal. It’s a forum for vibrant debate among our diverse membership, made up of conservatives, libertarians, and moderates.
The Federalist Society was borne out of a reaction to the unbridled activism of the Supreme Court in the 1960s and 70s. For decades, our mission has come from a shared antipathy to the policy-driven manipulation of the law in service of political ends.
Today, the Society stands united against the current President’s unprecedented executive overreach. We Federalists care deeply about the separation of powers and the rule of law, and these past six years have seen myriad abuses by this administration. Beyond the legal realm, dissatisfaction with the President has grown as Americans increasingly worry that his policies have left us less prosperous at home and less secure in the world.
The American people went to the polls last week and delivered a decisive blow to President Obama and his progressive agenda. They put conservative majorities in charge of the legislative branch and gave us the opportunity to steer the nation in a better direction.
But articulating the case against the Obama administration is the easy part. Advancing our convictions through the constructive task of governing is much harder.
This challenge is only made more difficult by the divisions we face as a conservative movement. Some commentators eagerly highlight divisions on the political Right—between Tea Party and establishment, purists and pragmatists, libertarians and social conservatives, populists and elites, hawks and isolationists.
It is incumbent upon those of us who seek to lead—especially those of us who hold elected office—to develop a positive, constructive agenda that can help unite such factions and present a compelling vision to Americans searching for a way out of our current problems. We must offer solutions, not shutdowns.
Developing a shared national vision must involve more than simply identifying a set of policy proposals that satisfy various ideological constituencies. We must root our agenda in timeless principles, and explain to the American people why those principles—and the policies that flow from them—offer the best way forward.
Despite what some critics might say, I have been a committed conservative throughout my entire public life. Today, I still cherish the same principles that first brought me to Washington as the vanguard of the Reagan Revolution in the Senate.
As a conservative, I have always been struck by how the fundamental insight of conservatism lies at the root of the word: to conserve. To be a conservative means to be committed to preserving the institutions and traditions that have made our nation so great and so free.
Conservatives recognize that our Constitution gave us a precious gift—a system of government that is both active and restrained. The Constitution endows the federal government with the powers to confront inevitable challenges, but it also checks those powers.
This central thrust of the Constitution—the creation of a limited but capable government—in turn helps to preserve a society where families and communities have space to thrive. We conservatives revere and defend the Constitution not merely because it protects individual liberty and self-government, but also because it helps make real the kind of society in which our civic and social institutions can flourish.
I have been greatly encouraged in recent years by the renewed focus among conservatives on the Constitution. As we seek to develop a positive, affirmative agenda, we must always keep the Constitution as our guide. By restoring the Constitution as our foundation, we remain true to the title conservative: we conserve our founding principles, and apply those principles to today’s challenges. This must be an active process, and one that each of us has an independent obligation to undertake.
For too long, most Americans have treated the Constitution as the exclusive province of the judiciary. But legislators like myself cannot simply rely on judges to tell us whether our proposals are constitutional. This tendency to leave things to the courts diminishes the other branches’ role in the constitutional system and misses the many lessons the Constitution has to teach.
And while the courts are charged with the important task of saying what the law is, and not what the law should be, the judiciary’s role in assessing constitutionality is a narrow one. Judges ask primarily whether a law satisfies some legal rule announced in a previous case. Is the regulated activity commerce? Is the punishment for noncompliance a tax or a penalty?
But my role as a legislator is not usually about deciding questions of policy based on legalistic reasoning, or seeking to restore the 1789 or 1868 status quo. For those of us in elected office, fidelity to the Constitution also means looking to the principles that undergird it—values like individual liberty, respect for civil society, and popular accountability—in determining whether a proposed course of action is wise.
Obamacare provides a ready example. I have challenged the constitutionality of Obamacare from its inception. Notwithstanding the Supreme Court’s contortions, the individual mandate undoubtedly exceeds Congress’s powers under the Constitution.
But that is not the only reason Obamacare conflicts with the Constitution. In addition to flunking formal legal tests, it violates many of the enduring principles made manifest in the Constitution. It invades liberty by compelling individuals to purchase insurance against their will. It undermines federalism by coercing state governments to expand Medicaid. It dilutes the separation of powers by transferring vast legislative authority to the Executive. And so on.
Whether or not a law meets whatever legal tests the Supreme Court has set forth does not end the inquiry for those of us who seek the Constitution as our guide. Instead, we must practice what some call political constitutionalism: the notion that it falls mostly to political actors making political decisions to protect and promote constitutional goals.
The Constitution has many lessons to teach about good lawmaking—that checks on government power ensure accountability; that most decisions affecting Americans’ lives should be made at the local level, not by some distant, federal bureaucracy; and that, consistent with the Constitution’s many divisions of power, sudden lurches in policymaking should be avoided, while more modest improvements supported by broad coalitions are encouraged.
Perhaps most fundamentally, the Constitution teaches the virtue of prudence. Prudence is a habit of mind that should come naturally to conservatives. It restrains us from seeking immediate and complete vindication of a single, abstract principle. Rather, it counsels us to work within our existing circumstances to advance the enduring principles upon which liberty depends. Prudent lawmakers make real-world experience, not abstract theory, their guide, and recognize that success requires harmonizing competing values.
The Constitution is an exercise in such prudence. It contains within its structure a clash of many competing institutions: The democratic, majoritarian House. The deliberative Senate. The unified and energetic Executive. And the independent judiciary. There is tension between individual rights and majority will, energy and stability, limited powers and flexibility to act. The Constitution mediates many rival goods. It is founded on compromise. And it institutionalizes prudence as a signal virtue of our Republic.
Conservatives have been most successful when we have tempered our ideological zeal with the prudence necessary to produce practical results. Many conservative leaders and thinkers eagerly wrap themselves in the mantle of Ronald Reagan. But as time has passed, President Reagan’s legacy has become increasingly prone to misappropriation and misuse. I recommend a recent essay in Commentary magazine by Henry Olsen and Peter Wehner that dispels some of the myths that have been perpetuated about Reagan, including claims that he was an inflexible ideologue.
I was a personal friend of President Reagan—a foot-soldier of the Reagan Revolution in the Senate, and the recipient of what I am told was his only pre-primary endorsement ever. When I see someone misappropriating President Reagan for their own purposes, I often feel duty-bound to remind my fellow conservatives that President Reagan never prized ideological purity over concrete results.
When faced with divided government, he did not choose a my-way-or-the-highway approach. Instead, he searched for areas of agreement. That meant accepting that some of our noble goals—such as restraining spending and reforming the administrative state—were out of reach at the time. But it enabled President Reagan to make meaningful progress in other, equally critical areas—like pro-growth tax relief and bolstering our national defense—progress that helped produce economic prosperity and won the Cold War.
Today, we honor President Reagan’s legacy, not by mischaracterizing his record or engaging in idol-worship, but instead by thoughtfully emulating his leadership, adapted to the challenges of today.
As in the age of Reagan, our task today as conservatives is to conserve—to retain what works, what is true to our constitutional structure, as we work to correct the excesses of recent years and decades.
For some programs, such as Obamacare, this means seeking to repeal the program root and branch and replace it with one that is both more effective and more in line with limited government and a free society. For other programs that have become more embedded in the fabric of American society, advancing reforms consistent with the cause of constitutionalism will involve more incremental improvements.
Now that we have a renewed ability to pursue our legislative priorities, laying out a principled, forward-looking, conservative agenda is more important than ever. In a recent speech at the Reagan Ranch in California, I laid out a number of my own ideas, including patient-centered healthcare reforms to enhance choice and restrain costs, tax reform to spur economic growth and create jobs, an innovation agenda to build the economy of the future, and a social mobility agenda to help all of our fellow citizens live the American Dream.
In my remaining time today, I want to discuss some ideas for regulatory reform—an issue of particular interest to Federalist Society members. In particular, I wish to suggest how the incoming Senate majority can model our legislative approach on the constitutional conservative vision I have just articulated.
A room such as this is full of separation-of-powers enthusiasts. At the mere mention of the monstrosity that is the current administrative state, many of you are ready to launch a crusade in the name of the non-delegation doctrine.
Let me assure you that I share your sentiments. Regulatory reform has been a focus for me since my early days in the Senate. Twice—in 1981 and again in 1995—I led comprehensive regulatory reform efforts that nearly became law. Today, major reform once again seems within reach, and it is more important now than ever.
But we must also acknowledge that many do not share our zeal for the finer points of structural constitutional law. Indeed, in the past, progressives have successfully labeled most regulatory reform efforts as attempts to discard even the most basic regulations, trotting out a parade of horribles like dirty air and polluted water and poisonous children’s toys. Such rhetoric holds great sway with the general public because most of us want clean air and water, safe children’s toys, and the like.
As a society, we’ve come to expect and rely on a basic level of health and safety regulation. As much as we may deplore the modern administrative state’s constitutional infirmities, seeking to tear down the entire regualtory state in one fell swoop—or to end the federal government’s power to regulate full stop—does not amount to a serious governing agenda. By instead crafting our proposals to respond to the most pressing problems presented by an overweening administrative state, I believe we can make serious progress in rolling back the regulatory menace.
Perhaps the two most troublesome features of the modern administrative state are, first, the size of our regulatory burden, and second, the lack of accountability in the regulatory process.
The growing federal regulatory burden has been a concern for decades, but the problem is now worse than ever. Both the number of regulations and their combined cost have exploded in recent years. The American people are now bound by more than one million individual restrictions in the Federal Register, with a total cost of around $1.86 trillion dollars each year. To put that in perspective, that’s about 11 percent of our total GDP; it amounts to around $15,000 per household; and it totals over $300 billion dollars more than combined annual individual and corporate taxes. In short, our regulatory burden is enormous.
Even as we resist President Obama’s mad dash to add new rules, our nation simply cannot afford to ignore the crushing burden of existing regulations. They weigh down our efforts to boost economic grown and make it impossible to get the country back on track.
Every President from Jimmy Carter to Barack Obama has embraced the notion that outdated, unsuccessful, or otherwise ineffective regulations should be repealed. Nevertheless, the cumulative regulatory burden has continued to expand year after year.
To address this growing problem, I plan to introduce the SCRUB Act – Searching for and Cutting Regulations that are Unnecessarily Burdensome. This legislation creates a bipartisan commission to examine the entire administrative corpus in search of regulations that are obsolete, outdated, ineffective, overlapping, duplicative, or unjustified. Its goal is to achieve a 15 percent cost reduction in our nation’s total regulatory burden. The commission can recommend either immediate repeal, or incremental reform through a flexible, cut-as-you-go procedure that ensures a smooth process for agencies, the regulated community, and the public.
The SCRUB Act turns a longstanding bipartisan commitment to retrospective regulatory review from mere rhetoric into meaningful reality. It would result in lower prices, higher wages, and more job opportunities for hardworking Americans. All the while, such commonsense regulatory review poses no risk to our health, our safety, or our environment. It’s the kind of legislation that can earn support from both sides of the aisle—and for which there is a realistic path to having it enacted into law. It is exactly the sort of reform that constitutional conservatives should champion because it helps restore individual liberty, fuels shared prosperity, and addresses many of our most pressing economic challenges.
A second critical flaw in the current administrative state is a fundamental lack of accountability in how the federal government makes and enforces regulations. I hardly need to rehash how broken the regulatory process has become—how agencies and interest groups manipulate the rules and stack the deck against innovators and entrepreneurs and ordinary citizens.
Abuses of the regulatory process have become so commonplace they have almost come to be expected and are often ignored. Thankfully, there are a number of meaningful avenues for potential reform. I have been encouraged by the many good ideas for retooling the Administrative Procedure Act, including the latest iteration of the Regulatory Accountability Act introduced by Senator Rob Portman. This important legislation provides much-needed relief to individuals and businesses by restoring regulatory transparency, requiring evidence-based rulemaking, and ensuring that agencies comply with their basic duty to conduct cost-benefit analysis for the new burdens they seek to impose.
But one area that has thus far escaped much legislative attention is the role the federal judiciary plays in the regulatory process. Given the broad authorities Congress has ceded to the administrative agencies, the courts often stand as the only true independent check on increasingly out-of-control regulators. But recent abuses by the political branches have created serious challenges for effective and appropriate judicial review of the regulatory process.
By writing vague laws, Congress has created extraordinary flexible grants of authority that are both unwise and constitutionally troublesome. Judicial deference to agency interpretations of the law has magnified this power to an extreme degree. Although originally intended as a means of curtailing judicial activism, Chevron and associated doctrines have resulted in a gross misallocation of lawmaking authority. Such doctrines have consigned courts to be rubber stamps rather than effective checks on administrative overreach.
The threat of toothless judicial oversight of increasingly problematic regulatory action was only heightened when President Obama and his allies packed the D.C. Circuit with compliant judges even less inclined to engage in meaningful administrative review.
And Congress’s creation of broadly available private rights of action—to challenge administrative decisions and regulatory activities—has opened another avenue for abuse of the courts. While these provisions provide important opportunities for regulated parties to defend their liberties, too often they have allowed groups with no concrete stake in the process to use the courts as a means to drive their own ideological agendas. Worse yet, inconsistent efforts by the judiciary to define the constitutional limits on standing have inadvertently created a perverse environment where businesses with real skin in the game are often shut out of court, while special interest groups with no meaningful injury-in-fact are allowed to litigate.
Restoring the constitutionally proper judicial role is vital to returning accountability to the regulatory process. In reviewing agency actions, courts should hear only real cases and controversies, where litigants have concrete interests at stake. But when they do rule, they should say firmly what the law is, and not simply ratify what the regulatory agencies argue that the law should be. Legislation to ensure meaningful reform on these fronts —and to thereby bring the administrative state more in line with the Constitution—will be one of my top priorities in the coming Congress.
These are the kind of reforms that I believe conservatives should champion in the upcoming Congress and beyond. Unburdening Americans from a bloated, overweening regulatory state that seeks to police virtually every aspect of life will give citizens and communities room to thrive. It will also help lead us to a richer, more robust society.
You may recall the Life of Julia ad from President Obama’s reelection campaign, which tells the story of a young woman who graduates college, has a child, and works until retirement, all with nary a mention of a mother, father, brother, sister, husband, or other family member. Instead, Julia owes all her successes and opportunities in life to the federal government, which is there to support her every step along the way. The ad is a perfect distillation of the ultimate end of the progressive state—government as replacement for family and community, God and priest, mentor and friend. That is not the government our nation’s founders envisioned, nor the one they created.
Government’s role is not to provide universal social and economic support, but rather to create opportunities and remove obstacles. A vigorous, dynamic constitutional conservatism that includes regulatory reform among its chief priorities will help return government to its proper role—that of supporter, not director. By keeping the Constitution as our guide and working to conserve our founding principles, we can offer an affirmative agenda to unite the conservative movement and win the hearts and minds of a broad majority of Americans looking for change.
Thank you.
