The Hill: Pulling back the curtain on DC’s rulemakers?

August 02, 2021 | By JOE LUPPINO-ESPOSITO
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For all matters of government policy, there’s usually someone to praise or blame. When it comes to agency rulemaking, however, it is not often so clear who’s responsible. A new bipartisan bill in front of Congress could fix that.

With federal regulation, all executive action should, in theory, be consistent with law and reflect the policy goals of the current administration. As we know, elections have consequences. And if the president were aware of every regulation and involved in promulgating each one, then we’d be in great shape when it comes to accountability, since the president is elected by the people every four years. Yet the president himself does not know details of particular regulations, nor do we expect him to.

The Constitution’s Framers understood that the president couldn’t run the executive branch alone and would need a staff to manage it. But at many times during the Constitutional Convention in Philadelphia they sought to ensure that the president was still responsible and accountable for all important executive action.

They carefully crafted several constitutional provisions to heighten accountability to the people. For example, all executive power is vested in the president alone. To reinforce that line of authority, all officers of the United States must be appointed in a way that enhances their accountability to the president, and ultimately, to the people. Pursuant to the Constitution’s Appointments Clause, all agency heads and other principal officers must be appointed by the president after Senate confirmation. All inferior officers must be appointed in the same manner unless Congress, by law, vests the appointment in the president alone in the head of one of the large executive departments.

Moreover, the Supreme Court correctly held that only those officers appointed in this manner can exercise significant authority under the laws of the United States. In 1976, the Supreme Court applied this principle in the landmark case of Buckley v. Valeo — namely, that rulemaking is a task that only officers of the United States can perform — but it didn’t decide what level of officer could issue rules. Subsequent cases strongly support the conclusion that only principal officers appointed by the president and confirmed by the Senate can issue final rules binding on the general public.

And yet, Pacific Legal Foundation discovered that agencies were violating this constitutional principle by delegating rulemaking authority from start to finish to career bureaucrats. We quantified this constitutional problem by tracking 17 years of Health and Human Services (HHS) regulations to find that 2,952 of them — 77 percent in that period — were unconstitutionally issued without principal agency officer approval. Of the Food and Drug Administration (FDA) final rules, 98 percent were invalid.

There is a better way, and it’s what the authors of the Constitution mandated. Former President Trump issued an executive order days before he left office to address this problem. Though President Biden repealed it without explanation, accountability for rulemaking should be a simple, nonpartisan objective. The Ensuring Accountability in Agency Rulemaking Act, a bipartisan bill from Reps. Ben Cline (R-Va.) and Jared Golden (D-Maine), would bring back that constitutional system by closing the gap between politically accountable officials and agencies’ rules.

The bill’s main purpose is to require all rules to be signed by individuals who have been appointed by the president and confirmed by the Senate. Further, it states that rules can be initiated only by these senior appointees as well.

With that rulemaking signature, even a casual observer of the goings-on in Washington can ultimately put the responsibility of those actions on the president.

Contrast that with a career employee — someone whose public record may be sparse, with unique job protections, and is totally entrenched in the bureaucracy. Most civil service protections make sense as long as the career employee is not making political decisions. They perform vital jobs, but only democratically accountable senior officials can make the final policy decisions about what government mandates are binding on the public.

The Constitution requires — and those concerned with democratic accountability would insist — that civil servants cannot be the last word when it comes to rulemaking. The president who appointed and the senators who confirmed the senior appointee are ultimately responsible for the rulemaker’s actions, which allows voters to express their assent or displeasure at the ballot box.

The Ensuring Accountability in Agency Rulemaking Act will not allow senior administration appointees to shirk their accountability, and in turn, will make presidents more carefully consider their nominees and senators more carefully consider their votes to approve nominees. Not everything can be blamed on the alphabet soup of Washington bureaucracy when the democratically elected branches are properly connected to success or failure.

This op-ed was originally published by The Hill on August 2, 2021.