The Hill: The buck stops here

On President Harry Truman’s desk in the Oval Office sat a sign that read, famously, “The buck stops here.” That four-word motto clearly articulated the fundamental principle of accountability — Truman understood that when it came time to make a decision, it was his responsibility, and he would answer for the consequences.

Most of us grasp that simple idea and try to do our best to live up to it, in our own jobs and lives. But in today’s Washington, that fundamental principle has fallen out of fashion. Our legislators and bureaucrats are all about “passing the buck” by delegating decision-making to others.

And it’s not just poor management — it’s unconstitutional. A report from Pacific Legal Foundation (PLF) details how appointed officials at the Department of Health and Human Services (HHS) increasingly shift regulatory decision-making responsibilities to career bureaucrats, in violation of the U.S. Constitution. It’s time for the Trump administration to put an end to this long accepted, but illegal, practice.

Our study, a year in the making, found that 71 percent of rules issued by HHS from 2001 to 2017 were issued by unaccountable bureaucrats instead of politically accountable agency leaders. The worst offender within HHS was the Food and Drug Administration (FDA), where career bureaucrats signed off on a jaw-dropping 98 percent of the rules issued in the time frame we studied.

Here’s why that’s a problem: The Constitution’s Appointments Clause requires that only “officers of the United States” — i.e., government officials appointed by the president and confirmed by the U.S. Senate — can issue binding rules.

This arrangement is to ensure that only people who are subject to processes of democratic accountability issue rules that affect the American people. But career bureaucrats aren’t subject to that accountability, since they are government employees and are supposed to be free from political influence in hiring and firing.

It’s easy to understand, of course, why officials would want to delegate decision-making authority. In a mutually parasitic relationship, the career bureaucrat gets the power and the freedom to issue rules that bind the American people, and he or she can’t be fired if things go badly. Meanwhile, the political appointee gets to avoid responsibility for the decision.

Within government, political types and bureaucrats are great at fabricating justifications for their actions. This abdication of responsibility may be blamed on the rules themselves. Some may argue that these HHS and FDA rules are so scientific and technical or have such a big economic impact that only expert bureaucrats should dare bother with them.

But if these rules are so complex and have such a profound economic impact, then it’s even more important that only politically accountable appointees are authorized to approve them. And if the rules are too complex for the political appointee to understand, perhaps we should think twice about subjecting average Americans to them.

President Trump can fix this. He could issue an executive order that requires his political appointees to take back responsibility from bureaucrats by explicitly requiring that only federal officials confirmed by the Senate can sign off on new regulations. Congress could assist by investigating agencies’ use and abuse of delegation powers in the drafting and implementation of new regulations.

The Trump administration has made steady progress at regulatory reform by assessing and eliminating a number of outdated rules and slowing the issuance of burdensome new rules. But the president also needs to ensure that newly issued rules are subject to political accountability, as the Constitution’s Appointments Clause requires. It’s time that both political appointees and bureaucrats in the executive branch understand that “passing the buck” is not an option.

Thankfully, this issue has grabbed the attention of some important members of Congress. On Wednesday, July 17, Sen. Rand Paul (R-Ky.) will chair a hearing that explores this issue in his Homeland Security and Government Affairs Subcommittee on Federal Spending Oversight and Emergency Management. This is an important step to understanding the scope of this problem and reclaiming the rulemaking power from bureaucrats.

Clint V. Brown is legal policy director for the Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty. Follow him on Twitter @ClintvBrown.

This op-ed was originally published by The Hill on July 16, 2019.