Rep. John Ratcliffe: Fighting the ‘fourth branch of government’


Rep. John Ratcliffe, R-Texas, brought his prosecutorial and national security expertise to Washington. (CQ Roll Call via AP Images)


Rep. John Ratcliffe: Fighting the ‘fourth branch of government’ | Washington Examiner

Rep. John Ratcliffe is waging a two-front war: deterring cyberattacks and cutting government regulation. The latter, according to the second term Texas Republican, has become the fourth branch of government.

It’s the driving force behind the Separation of Powers Restoration Act, which should shift the power to determine ambiguous laws away from federal agencies to back to the judicial branch

“The Separation of Powers Restoration Act we introduced is really about constitutional boundaries,” Ratcliffe told the Washington Examiner. “What I have witnessed, particularly in the last eight years, is the expansion and growth of Article II, the executive branch. So I made it a priority for me, a focus for me and my time in Congress to help restore constitutional boundaries and authority, particularly as a member of Congress.”

Ratcliffe, a former small town mayor, was appointed by President George W. Bush as U.S. attorney for the Eastern District of Texas, where he focused on counterterrorism and national security.

After knocking off veteran Rep. John Hall in the Republican primary in 2014, Ratcliffe brought his prosecutorial and national security expertise to Washington. He now leads the House Homeland Security Committee’s cybersecurity subcommittee.

Washington Examiner: Tell us about your interest in cybersecurity.

Ratcliffe: From my perspective, national security has been a big part of my life before and the preamble to the Constitution says that the primary role of the federal government is to provide for the common defense. Increasingly, people are now seeing that cybersecurity is national security and that I’m of the opinion that while border security is important … the simple truth is that we’re being invaded millions of times a day through our digital borders and those invasions are posing a greater threat to Americans right now than anybody coming across our Southern border. We’re only going to be a world super power if we maintain a position as the world’s cyber superpower. Increasingly, there are certain countries that will never be able to compete with the United States from a kinetic, firepower standpoint. Like North Korea will never have as many ships or planes that are as good as what we’re able to generate here. But cyber is the great equalizer and some of the most dangerous people in the world are 18 years old in places like Moscow or around the world where they can impact the lives of Americans from half a world away in a few seconds and a few keystrokes. And so until we improve our cyber defenses, from a national security standpoint, we will be vulnerable. It’s a great challenge, but I also see it as a great opportunity to essentially move the needle in the direction of all Americans, Republicans and Democrats, would agree we need to move.

Washington Examiner: What is something that Congress can send to President Trump quickly to help on this front?

Ratcliffe: Last Congress we passed the Cyber Security Information Sharing Act, which allows for the sharing of cyberthreat indicators … between government and industry. That’s a good foundation to build upon. Things like the [Office of Personnel Management] breach or hacks of the IRS … underscore that federal networks, the dot gov, is still not secure, so one of things that we’ll be focusing on … is to help secure federal networks, specifically the dot gov from those kinds of intrusions.

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I’m also interested in developing a more robust cyber workforce. One of the challenges we have is that we don’t have enough folks with cyber expertise to fill all of the positions that are cybersecurity related either in the private sector or the federal government. So we need to build a more robust cyber workforce.

I had legislation last Congress that will also focus on the sharing between the federal government with our state and local partners, particularly as it relates to law enforcement. [TV shows] like CSI, it’s always that strand of hair or drop of blood that is the critical piece of evidence, so as a former prosecutor I can tell you that does happen but it does not happen as frequently as the key piece of information being an email that was sent or an online purchase or geo-location information abut where someone was at a particular point in time. So that is becoming increasingly … the critical evidence that we need to protect and secure, and just like with drops of blood and strands of hair, there is chain of evidence in terms of protecting that and getting it from where it takes place through prosecution and a trial. So I proposed a bill to authorize the National Computer Forensics Institute, where the Secret Service would train law enforcement partners to improve on maintaining the proper chain of evidence for cyber evidence.

Washington Examiner: Do you think the U.S. needs to publicly call out state-sponsored hacks?

Ratcliffe: Attribution is important, not always possible. But with respect to where we have reasonable certainty and attribute a specific cyber event or an attack to another nation-state, my criticism of the Obama administration is that there haven’t been significant consequences or deterrence to having that bad behavior happen again. I frankly don’t care whether or not it occurs publicly, it is a bigger issue that there is accountability that takes place. And I can state with certainty that there have been a number of instances where the president has essentially allowed nation-states to engage in cyber events that have been attributed to them and he has not punished that bad behavior. Whether it’s out in the public sphere is a different issue and sometimes there are policy reasons why you don’t want that taking place. But again there has to be deterrence to that type of activity and that’s where I think that, I’m hopeful, that President Trump will enforce the red lines that he puts out there, whereas President Obama clearly has been criticized by many on both sides of the aisle for not doing so.

Washington Examiner: Does the U.S. need to impose more sanctions on Russia?

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Ratcliffe: There are so many people, both members of Congress and members of the media, that are conflating the issues right now as it pertains to Russia and their cyber action and activities. I am of the very certain opinion that Russia engages in cyber hacking of U.S. interests and other foreign interests with regularity and I think that the current president has not acted quickly enough or strongly enough to deter that type of behavior. But I think a lot of this discussion we are having right now is that people are conflating Russian hacking with the presidential election. I can state with certainty that Russian hacking did not impact our election infrastructure. What worries me is there is so much conflation of those issues right now, I’m just trying to be careful … before we determine what are the appropriate sanctions with respect to Russia. Until I get the full picture [from intelligence briefings], I’m not going to say that we need to expand the current sanctions that are in place. But I am in favor of sanctioning any nation-state that acts badly in the cyber realm with respect to U.S. interests.

We’re behind the curve. Our cyber defenses are not up to speed with the cyber tools for the bad actors that are out there, whether they are nation-state, criminal syndicates, terrorists or garden variety hacktivists that just want to make a statement.

Washington Examiner: What can we do about Islamic State and other terrorists’ use of the Internet and social media to recruit, communicate with each other and plan attacks?

Ratcliffe: We have to have a more dedicated, cohesive strategy than I think we’ve seen in the current administration and this is where I’m eager to visit with incoming [Homeland Security John] Kelly about improving and refining our efforts.

Washington Examiner: Tell us about your interest in regulatory reform.

Ratcliffe: I really think the federal government’s role should be limited by the Constitution … like providing for the common defense. A lot of this regulatory reform is really an issue about Article I, about Congress standing up for itself and not letting any individual branch become too powerful. The Separation of Powers Restoration Act we introduced is really about constitutional boundaries. What I have witnessed, particularly in the last eight years, is the expansion and growth of Article II, the executive branch. So I made it a priority for me, a focus for me and my time in Congress to help restore constitutional boundaries and authority, particularly as a member of Congress. You see all of these things about congressional approval ratings and what I say is people would respect Congress more if it respected itself enough to stand up for its constitutional authority. We’re essentially letting the executive branch do whatever it wants and circumvent the will of the people through its duly elected individual representatives in the House and Senate.

The Constitution clearly provides for three branches of government, not four, so whatever my tenure is in Congress, a great deal of my focus will be on essentially dismantling a fourth branch of government that I think our founders never intended and is not referenced in our Constitution.

Washington Examiner: Why are bills like yours and others addressing regulation necessary?

Ratcliffe: Congress has a role to write better laws with less ambiguity. Part of the process is when you pass a 2,500-page bill into law like Obamacare, it lends itself to bureaucratic meddling. As part of that issue, when Congress is ambiguous, it is clearly set forth that courts are the ones to interpret congressional intent. The 1984 Chevron decision has allowed the regulatory growth and it’s been Republican and Democratic administrations for three decades that have contributed, but we’ve seen a steeper climb in the Obama administration. You can really trace the rise of the regulatory state to that opinion, which is what my bill addresses and corrects.

In America, our justice system is based upon the very basic and fundamental fairness that we all walk into court on equal footing and that one side is not favored over another. Chevron deference clearly flies in the face of that and what you have currently is the deck stacked in favor of the regulators who have written the rules that are being interpreted. And so this is, I think, a giant step toward fixing a problem that has contributed to — not the sole cause of — but the growth of a fourth branch of government and regulatory burdens that I hear more complaints about that than any other issue from my constituents.

Washington Examiner: Does the federal government have a regulatory role to play?

Ratcliffe: Absolutely. This is not to say that regulations aren’t necessary, they absolutely are. And there are regulations that protect American citizens and businesses and if you look at what all of the legislation that we’re talking about, that I propose, it’s not calling for an end to regulation and it’s not really in any way restricting agencies’ ability to play the safe-guarding role that we want them to play. This legislation doesn’t abolish any agencies, but what it does is it holds bureaucrats accountable in a way that they’re not being held accountable currently. And I think everyone should be accountable. Elected officials are accountable at the ballot box. If folks don’t like what I’m doing, they have a chance to vote me out of office. The American people don’t have the ability to get rid of someone working in the basement of the Department of Labor that writes an overtime rule that puts them out of business. So that’s where Congress plays a role with respect to oversight and why we need to correct that.

Washington Examiner: How do Republicans transform from an opposition party to a governing one?

Ratcliffe: I think there will be challenges because I think Republicans sort of famously never agree on what the best plan forward is. One of the good things about our party is we have so many different diverse ideas that sometimes the Democrats simply line up behind one idea and stay in formation regardless of what happens, which serves them to some extent. But I think we are the party of better ideas because people are more willing to voice where they think we should go on an issue but sometimes it’s harder to herd the folks together in one, cohesive direction, so that’s the challenge.

Up until now most Republican bills were essentially a messaging bill or a marker for where we can go. Now the impossible becomes possible. I personally love that dynamic and the pressure that it brings. I like the fact that we don’t have anybody to blame at the end of the day, that there are no excuses, there are no safety nets here, and either we perform and govern as the people have empowered us to do or we don’t. And I think it’s fair. I’ve been telling people, “give us a chance … and if we don’t do the things that we say we are going to do, then hold us accountable.” That’s the way it’s supposed to be and I am frankly excited that that’s the dynamic that we have right now and I hope that my Republican colleagues sort of see the urgency there and that we won’t have anyone to blame. And if we don’t repeal Obamacare and if we don’t rein in the regulatory state and we don’t do tax reform … then people should hold us accountable in a few years at the ballot box.

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