Published by The Hill April 16, 2018.
It’s a simple question: Should federal agencies be expected to follow the law? Americans instinctively would respond “yes” to that question. We reasonably expect government entities will be accountable to the public.
Unfortunately, many bureaucrats don’t share that faith in public accountability and the rule of law. As federal agencies have grown steadily larger, exercising greater and greater power over the lives of every American, they’ve grown less responsive to the public they regulate.
That is why Congress, in 1996, enacted the Congressional Review Act, aimed at restoring a measure of democratic oversight to the rulemaking process. The statute, signed into law by President Bill Clinton, requires agencies to submit to Congress every rule they wish to impose on the American people. The goal was to give our elected representatives a chance to assess — and when necessary, reject — the worst rules bureaucrats dream up.
Unlike the gridlock typically paralyzing Washington, the Congressional Review Act gives Congress and the president a streamlined process to review agency rules. Last year, they used this power to void 14 of the most controversial rules issued during the twilight of the previous administration, along with another rule issued by an “independent” agency immune to presidential oversight. Use of the Congressional Review Act has been the Trump administration’s signature, and perhaps most underappreciated, legislative accomplishment.
But there’s still much work to be done. Rather than submit to reasonable oversight and accountability, many agencies simply decline to follow the Congressional Review Act. They impose and enforce countless rules, despite having never submitted them to the people we elected to govern. Bureaucrats who would throw the book at you if you failed to follow their rules to a “T” are unwilling to follow the rules themselves. It’s gotten so bad that the House Judiciary Committee held a hearing last year on the agencies’ disregard for the law.
Many of the rules illegally withheld from Congress’s scrutiny are burdensome, ineffective, or poorly conceived. Take, for example, one of the more controversial environmental regulations: a rule imposing restrictive land use plans on 11 states throughout the West, ostensibly to protect the greater sage grouse, a species of bird.
Threatened by wildfires, invasive plants and habitat destruction, the greater sage grouse was nearly listed under the Endangered Species Act, which would have severely restricted the use of 165 million acres and cost state economies hundreds of millions of dollars.
To avoid this unnecessary and destructive federal regulation, state governments, landowners and environmentalists undertook an unprecedented series of voluntary conservation efforts. Together, they protected 4.4 million acres of sage grouse habitat and improved another 400,000 acres by removing invasive plants.
But that wasn’t good enough for the bureaucracy, which rejected the states’ plans. The Departments of Interior and Agriculture went ahead with precisely the sort of heavy-handed federal regulation the states feared, imposing a new sage grouse rule that imposes severe land use restrictions on federal lands throughout the West. And naturally, the federal agencies illegally refused to submit the rule for review by your elected representatives.
If regulations have not been submitted to Congress for review, they cannot lawfully be in effect. But the illegal enforcement of unsubmitted — and poorly conceived — rules is only part of the problem. Agencies also have failed to submit critical, beneficial rules, creating an unnecessary cloud of uncertainty for people who must rely on these good rules.
For example, a U.S. Fish and Wildlife Service rule encourages states, local governments, property owners, and environmentalists to collaborate on innovative conservation programs, rewarding such efforts by allowing them to avoid the need to list species under the Endangered Species Act. In addition to the greater sage grouse, that rule helped promote conservation efforts for the lesser prairie chicken, dunes sagebrush lizard and the gopher tortoise.
Yet the agency has never submitted that rule to Congress as required by the Congressional Review Act. Thousands of property owners rely on these rules to guide their decision-making when participating in conservation programs, often at great cost to themselves. They deserve to have confidence that their reliance on the rules is well placed. If the rule has not been submitted to Congress and is not lawfully in effect, federal agencies may be exposed to litigation that could invalidate the rules. The people expected to follow the rules deserve more clarity and certainty.
Pacific Legal Foundation has filed two lawsuits, one in Idaho and the other in Kansas, to force agencies to comply with the law and submit rules for congressional review. Litigation over every rule illegally withheld from Congress easily could be avoided. President Trump needs only to direct agencies to review their compliance with the Congressional Review Act and work with the White House and Congress to begin submitting those rules they have unlawfully withheld.
No one is above the law, and that commonsense principle applies to federal agencies just as it does to the rest of us. Bureaucratic agencies must accept sensible restraints on their regulatory powers. That begins with subjecting the rules that regulate people’s lives to democratic scrutiny through the Congressional Review Act.
Jonathan Wood is an attorney at Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty.