The Supreme Court can help block some of these threats to our representative form of government, but the judicial branch will generally intervene only in the most extreme cases. That is why Congress must do its part to ensure that agencies do not ignore the critical importance of representative government.

This is more important than ever as the Biden administration dramatically expands the size and role of the administrative state, whether through continued efforts to forgive student loans or through a final Environmental Protection Agency regulation to phase out gasoline-powered cars.

But what can Congress do? Fortunately, there are good solutions for Congress, such as the REINS Act. This bill would require Congress to approve certain regulations before they could go into effect.

There is also a new legislative idea that is supposed to solveregulation without representation, expressly prohibiting agencies from issuing various types of regulations that, by their nature, ignore the will of Congress.

For example, is it reasonable to think that Congress, without saying so, would want agencies to issue regulations that explicitly or in substance force companies to close or ban goods or services? Or that it would want agencies to issue regulations that go beyond their expertise or that would transform or change the nature of an entire industry?

Of course not. Such policies should be prohibited without express authorization from Congress.

Lawmakers can take a leaf out of the Supreme Court in this regard. Legislative reform should be based in part on the doctrine of principal questions, a judicial doctrine developed by the Supreme Court in a 2022 case, West Virginia vs. EPA.

In this case, the court explained that the principal questions doctrine addresses “a unique and recurring problem: agencies granting themselves very significant powers beyond those that Congress could reasonably have found to have been granted.”

In such cases, the court would look for express congressional authorization justifying the agency’s presumed authority.

As Supreme Court Justice Neil Gorsuch said in his dissenting opinion, the principal questions doctrine raises “fundamental issues of self-government, equality, fair notice, federalism, and separation of powers.”

Congress should start by reforming the law that governs the regulatory process, the Administrative Procedure Act of 1946. The APA was supposed to provide protections for those affected by regulation and was billed as a “bill of rights” for regulated parties. But the law has been a failure in large part because it does not address regulation without representation. That needs to change.

If we are concerned about taxation without representation, then we should be equally concerned about regulation without representation, as well as any laws created outside the bounds of our representative form of government.

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Daren Bakst is director of the Center for Energy and Environment at the Competitive Enterprise Institute.