Remember the “Schoolhouse Rock!” videos? There’s one with a cartoon figure of a bill sitting on the steps of Capitol Hill explaining how our federal legislative process works: the committee debates, the votes in the House of Representatives and the Senate, the need for the president’s signature or a veto override.
It’s a wonderful introduction to our system of government. But for all the video gets right, there’s an anomaly at its core. The video follows the progress of a long-languishing bill designed to require school buses to stop at railroad crossings. At last and with much pride, the bill finally succeeds in becoming a law. As it happens, though, we have no specific federal law like that. Instead, we have an agency rule, one issued by the Department of Transportation and buried deep within the Code of Federal Regulations, Title 49, Section 392.10, to be exact.
The truth about “Schoolhouse Rock!” illustrates another notable feature of our law today. Not only have the last few decades witnessed a shift in power from local to federal authorities, but even within Washington, a dramatic transfer of power has taken place from elected representatives to unelected agency officials. These days, federal agencies don’t just enforce the laws Congress writes; they also engage in activities that look a lot like legislating and judging. In important ways, all three of the powers Madison and the founders took care to separate have become commingled in agency hands.
Start with the agencies’ quasi-legislative powers. Today, executive
