In December 2008, just weeks after President Obama was first elected, environmental activists sued the Environmental Protection Agency (EPA), claiming that the agency had failed to regulate certain “hazardous air pollutants” emitted by power plants pursuant to the Clean Air Act.

Resolving a lawsuit that involves a federal agency like the EPA can take a very long time – years even – especially when the suit is initiated in the first year of a new administration. But not in this case. Within 10 months, President Obama’s EPA decided to settle the suit with the environmental activists. How did they do it so quickly? By promising to enact new regulations of American power plants.

This is a classic case of a “sue-and-settle” scheme, the pernicious practice of activist organizations suing the federal government with the sole intention of reaching a closed-door settlement that achieves the group’s preferred regulatory goals much faster than could occur through the normal bureaucratic rulemaking process.

Indeed, the environmentalists’ lawsuit provided the EPA the pretext they needed to issue regulations that were far stricter – and more expensive – than otherwise would have been possible. The EPA’s own studies estimate that the resulting set of regulations – called the Utility MACT (Maximum Achievable Control Technology) Rule – will cost the U.S. economy $9.6 billion every year. That’s a staggering sum, but it’s only a drop in the bucket of the total cost of the draconian environmental regulations that the Obama administration has issued in response to similar lawsuits. According to the U.S. Chamber of Commerce, the Obama administration has entered into an estimated 60 such settlements.

Using lawsuits to extort new regulations from executive agencies is an affront to the rule of law and democratic government. But it’s proved to be highly effective for special-interest groups seeking to shape the law in their favor, which is why we see it spreading to other policy areas, like health care.

At least six insurance companies that participated in the Obamacare exchanges are now suing the Department of Health and Human Services (HHS), claiming that HHS owes them billions in “risk corridor” program payments that would have prevented their heavy Obamacare losses.

When Obamacare was first passed, the program was supposed to be funded by payments from other insurance companies who did not have to spend a lot of money covering health-care claims from their policyholders. But since almost all insurance companies were spending more than they expected on Obamacare patients, no one was paying into the program.

President Obama first went to Congress and asked for money to cover the unpaid insurance claims but Congress said no. Then in September, HHS issued a memorandum claiming that the insurance companies who had sued HHS might be able to get their unpaid risk corridor bills paid through the Department of Justice’s Judgment Fund.

The Congressional Research Service has since concluded that such payments were not authorized by statute, but that hasn’t stopped President Obama in the past.

That’s why last month I joined my colleagues, Sens. Ben Sasse (R-NE), Marco Rubio (R-FL), John Barrasso (R-WY), to introduce the HHS Slush Fund Elimination Act. The bill would prohibit the government from using the Judgment Fund, or any other federal funds, to pay final judgment or settlement related to any lawsuits pertaining to the Obamacare risk-corridor program.

Federal bureaucrats and special interests should not be able to create policy through sue-and-settle schemes. Congress has already relinquished far too much of its legislative powers to the Executive Branch. This bill would make sure we don’t give away even more.

Yesterday, the Senate passed a 10-week continuing resolution by a 72-26 vote. I voted against the bill and I want to explain why.

A continuing resolution is a bill that basically keeps the government funded through an autopilot type mechanism. It just keeps the government headed in the same direction. It doesn’t really change much.

Today’s continuing resolution comes just a couple of days before the expiration of the current spending bill that expires on September 30th. The problem with this is that we’ve known for a year that this was going to happen. We’ve known for a year that September 30th would arrive, that at that moment we would have to pass something or risk a government shutdown.

Now there was an effort to fund the government properly through itemized appropriations bills. And that effort was blocked by the Democrats. And they will have to answer for that.

But even if we are going to do it all in one bill, they ought to at least put it on the Senate floor, and allow us to debate it, and discuss it, and amend it, and make changes to it.

Instead, what ends up happening is that you have just a small handful of legislative leaders, negotiating in secret about what is going to be in the bill.

Then at the end of this long mysterious process, they emerge as if coming down from a mountain with stone tablets showing us what they have mysteriously put together. And at that point everyone is given a binary choice that is very unpleasant: either vote to pass this bill and keep the government funded or you vote no and a government shutdown ensues.

Well it doesn’t have to be that way and it shouldn’t be that way. The spending power that Congress has is one of the most important pieces of the constitutional puzzle. It has to mean something. If we allow it to be powerful, if we allow it to do what it was intended to, it really can work well.

James Madison described this power in Federalist 58. He said it was “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people for obtaining a redress of every grievance and for carrying into effect every just and salutary measure.”

But in order for every just and salutary measure to be covered, you have to allow every member an opportunity to offer improvements, to try and change things one way or another.

Anyone who purports to believe in constitutionally limited government ought to care enough about the process to make sure that Congress doesn’t become a rubber stamp for the small handful of legislative leaders who put themselves in charge of this behind-the-scenes, closed-door negotiation process.

We’ve been asked as a people for too long to simply settle. To simply settle for last minute legislation, for a government that’s always expanding, for a government that thinks its there to provide for our every need, that thinks its big enough and smart enough to make every decision for us. We’ve been asked to settle for too long.

Don’t settle.

Perhaps the most famous words spoken on the day we commemorate today – September 17, 1787 – were those of Benjamin Franklin. After the Constitution had been signed and the Convention adjourned, Franklin was asked by a group of curious Philadelphians gathered outside Independence Hall what type of government the delegates had created. “A republic,” he replied, “if you can keep it.”

This pithy response – more of a challenge than an answer – is so memorable and quotable that we tend to repeat it more often than we pause to reflect on its meaning. So today, on the 229th anniversary of Mr. Franklin’s famous proclamation, it’s worth asking ourselves: what exactly does it take to “keep” the American republic?

To my mind, one of the best answers to this question was given by Abraham Lincoln in an address he delivered in 1838, at the ripe old age of 28, to the Young Men’s Lyceum of Springfield, Illinois. The subject of the speech was “the perpetuation of our political institutions,” which he described as the central and perennial task of republican citizenship.

Lincoln said that every generation of Americans has the responsibility to pass along to its descendants the “political edifice of liberty and equal rights” that had been established by the nation’s founders – our “hardy, brave, and patriotic” ancestors. He insisted that this process of perpetuation – the project of “keeping” the republic – would succeed only if the American people respected the nation’s laws and viewed the government with affection, rather than suspicion or derision.

The “strongest bulwark of any Government” is “the attachment of the People,” Lincoln declared. If “the laws be continually despised and disregarded,” and if the people become estranged from their public institutions, losing trust in the officials charged with making and enforcing the law, “this Government cannot last.”

Lincoln was right. At the heart of the American republic is a social compact based on mutual trust between the people and their representatives in government who are obligated to govern on their behalf. Government officials are given power to make and enforce the laws on the condition that they respect and remain accountable to the interests and concerns of the people they represent.

But today, this mutual trust and respect that are necessary to bind the American people to their public institutions has been deeply corroded. The primary reason is that the vast majority of the federal government’s do’s and don’ts governing our lives are written not by the people’s elected representatives in Congress, but by unelected, anonymous bureaucrats in the Executive Branch.

No wonder only 22 percent of the country believes that most elected officials put the interests of the nation ahead of their own interests, and a mere 19 percent of Americans say they can trust the government always or most of the time.

Following Abraham Lincoln, I believe this crisis of confidence in America today is a grave threat to our ability to preserve our public institutions for the next generation. That’s why, earlier this year, I launched the Article I Project – a new network of policymakers working together to develop a legislative agenda that will reclaim Congress’s constitutional lawmaking powers that today are being improperly exercised by the Executive Branch and thereby restore the democratic accountability on which our system of government depends.

If we are to “keep” our republic, as Benjamin Franklin challenged us to do 229 years ago, we must rebuild the American people’s trust in the nation’s public institutions. And the only way to do that is by finally making Congress responsible again – both in the sense of discharging its constitutional duties and making itself accountable for the consequences.

It is becoming increasingly obvious that the American labor force – one of the economy’s core building blocks – faces many structural challenges today. Millions of Americans are out of work, and for a longer period of time – six months on average – than in recent economic recoveries. Millions more are underemployed, working in part-time jobs even though what they want and need is full-time work. And the share of Americans participating in the labor market is hovering near its lowest point since 1977.

Meanwhile, there’s a growing sense that today’s economic challenges are somehow different – more intractable – than those that we have overcome in the past. Americans aren’t just losing jobs, they’re losing faith in the future and in the basic fairness of the American economy.

A recent survey of than 1,500 unemployed Americans found that a full 83 of respondents agree that “The way the economic system is set up in the United States only benefits the rich.” And the worst part is, they’re not entirely wrong.

One of the most pernicious forms of economic privilege today is the proliferation of occupational licensing requirements imposed on American workers by state governments. Occupational licensing laws require individuals to meet particular qualifications – like passing an exam, obtaining a professional certification, or completing a training course – in order to work in certain jobs.

Ostensibly, the purpose of licensing requirements is to protect public health and safety. For certain occupations – like physicians or lawyers – this makes perfect sense. But what about truck drivers, athletic trainers, hair stylists, florists, preschool teachers, or pest exterminators? It’s hard to see why people who want to work in these jobs should be required to pass exams, complete extensive training, and obtain government permission before they can legally be hired. And yet that’s exactly what has happened in states across the country.

In 1950, fewer than 5 percent of American workers were subject to licensing requirements. Today, that figure stands at around 30 percent. And in many cases, would-be workers have to pay large sums of money or wait long periods of time – or both – just to obtain the government’s permission to work.
"The spirit of enterprise is still alive and well in this country. But too often misguided government policies stifle it before it can grow and fulfill its potential. Sadly, this is especially true for the most disadvantaged among us. "

The specific requirements vary across states and occupations. They range from the sensible to – more often – the absurd. But the upshot is always the same: by making it more difficult to enter an occupation, licensing requirements block younger and less fortunate workers from better and higher-paying jobs.

That’s why Senator Sasse and I recently introduced the Alternatives to Licensing that Lower Obstacles to Work (ALLOW) Act, a bill that leverages Congress’s Article I authority over federal enclaves – including the District of Columbia, military bases, and certain National Parks – to advance several models for licensing reform that state governments can follow.

The best part about this bill is that states can follow any one of these models right away. And at a time when the American worker is losing confidence in the future and the fairness of our economy, governors and state legislators should waste no time in implementing their own versions of these reforms.

The spirit of enterprise is still alive and well in this country. But too often misguided government policies stifle it before it can grow and fulfill its potential. Sadly, this is especially true for the most disadvantaged among us.

Rethinking our approach to occupational licensing laws – so that our economy has room for the full range of human talents, aspirations, and imaginations to flourish – is a modest but important step in making sure that our economy is set up to benefit the hard work of all Americans.