I mentioned in my previous post that “I would repeal the entire Code of Federal Regulations root and branch …” In summary, my argument for repealing the CFR is based not on policy but rather on constitutional first principles. Does Congress really have the meta-power to delegate any of its enumerated powers, such as the power to declare war, regulate commerce, create a national Post Office, protect copyrights, or any of its other enumerated and limited legislative powers? Is that what the Framers intended when they drafted the Constitution in 1787, and if so, then why didn’t they say so in the text of the Constitution? Or did they?

Either way, even if we concede that Congress has the meta-power to create administrative agencies and to delegate all or part of its legislative powers to those agencies, it is axiomatic that the Constitution does not confer on Congress a general police power. Simply put, the powers of Congress are specifically enumerated, i.e. those that are listed in Article I, Section 8 of the Constitution. Therefore, since Congress lacks a general police power to define and punish crimes, it cannot delegate a power that it does not have. Yet, scattered among the 200,000-plus pages of the CFR (see here, for example) are as many as 300,000 rules and regulations that subject people to possible criminal penalties. Alas, no one really knows what the total number of federal regulatory crimes is; see here! Given this state of affairs, my argument is that, until we know the total number of federal regulatory crimes, we must throw out the metaphorical baby with the bath water and start from scratch.