The Senate is looking at — but needs to act upon — bureaucratic rulemaking

In Washington, D.C., reports and studies that examine and critique government policy and performance are the currency of the realm. Every think tank, advocacy organization and lobby shop hopes their original research will make a splash, getting the attention of policymakers and resulting in real change. 

Unfortunately, the supply of policy research often outstrips demand. Most of those studies, even the good ones, end up sinking without a trace. 

That’s why I’m pleased to report that a recent study by Pacific Legal Foundation (PLF), focusing on unconstitutional practices in issuing federal regulations, is having a significant impact on public debate. And the issue couldn’t be more timely. 

Last week, our research was front and center at a Senate Federal Spending Oversight and Management Subcommittee hearing focused on the costs of federal regulation, and how unauthorized bureaucrats writing rules affects the government, federal spending and the economy. 

The report we published in April, “But Who Rules the Rulemakers?: A Study of Illegally Issued Regulations at HHS,” was based on a comprehensive review of regulations issued by the Department of Health and Human Services (HHS) from 2001 to 2017.

Our researchers found that for the department as a whole, the vast majority of rules issued — 71 percent — were unconstitutional. The biggest offender within HSS was the Food and Drug Administration (FDA), which alone counted for 63 percent of the unconstitutional rules issued during the designated time frame. 

What accounts for so many illegally-issued regulations within one department? Because executive branch agencies have adopted the practice of “sub-delegating” decision-making authority to low-level officials and employees, allowing them to issue regulations even though they lack legal authority to do so.

Under the Constitution’s Appointments Clause, the authority to issue significant federal regulations rests with duly-appointed officers — that is, individuals who have been nominated by the president and confirmed by the Senate. This arrangement reflects conscious design on the part of the Constitution’s Framers, who wanted to ensure political accountability for lawmaking. But that system breaks down when low-level career employees take it upon themselves to promulgate rules. 

And these new rules go far beyond simple technical fixes or minor policy adjustments — many of them have significant economic impacts and carry heavy costs on the economy, the business community, and taxpayers and consumers. Among the FDA rules we examined, 25 have an economic impact greater than $100 million. And that’s just rules issued by one agency within one department of a vast federal regulatory state — we can imagine how extensive the abuse would be if we were to extend this type of analysis to agencies across the executive branch. 

Speaking on behalf of PLF at last week’s Senate hearing, attorney Thomas Berry characterized this pattern as “an abusive end-run” around the proper, accepted system for implementing regulations, which empowers bureaucrats to evade responsibility for their actions. 

“When rulemaking decisions are made by low-level employees, the public is deprived of the ability to trace any blame to the top, depriving these rules of democratic accountability,” Berry said in his testimony. 

To rectify this untenable situation, Congress should pass legislation requiring that all rules published in the Federal Register must be signed by an agency official who has been confirmed by the Senate. The legislative branch also should make more aggressive use of its oversight powers to question executive branch agencies on their regulatory processes.  

For PLF, the “Rulemakers” report was just a starting point in our fight against unconstitutional rulemaking.We’ll continue to push for reforms through Congress, the legal system and in the court of public opinion. 

We’re proud that the Senate focused on our research in a public hearing, but action needs to follow. Here’s hoping the attention given to this issue leads to real momentum for change. Bringing overreaching government bureaucrats to heel, and restoring real constitutional accountability to the regulatory process, needs to be next on the agenda. 

Steven D. Anderson is president and CEO of Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty.