An Unconstitutional Attempt to Roll-back Public Health Protections

by Bill Funk

June 03, 2015

Senator Rounds (SD-R) has introduced a proposed concurrent resolution to establish a Joint Select Committee on Regulatory Reform to address the alleged “regulatory overreach that is so prevalent in all sectors of the U.S. economy” by, among other things, conducting a “systematic review” of all rules adopted by federal agencies, supposedly in the name of reducing government expenditure and streamlining business procedures.  Ironically, Congress, if it wishes, can spend its otherwise valuable time having a committee engage in this procedure, while at the same time increasing the costs of government by requiring government agencies to appear at hearings and respond to subpoenas to answer once again why they are doing what members of Congress have by statute told them to do, in order to protect the public health, safety and environment of their constituents. This is political theater, no more, no less.

The other provisions in the resolution raise serious potential questions and thus require a closer look.  To begin with, the proposed concurrent resolution would also have the special committee analyze the feasibility of creating a Permanent Joint Committee on Rules Review with powers that would undoubtedly violate the Constitution, as explained below. The proposed resolution suggests that the permanent committee would require agencies to submit to the committee any proposed rule having an economic impact of $50 million or more along with an economic analysis of the rule.  This, by itself, raises no constitutional problem; what follows does.  

The proposed resolution also suggests that the committee could then delay the effective date of the proposed rule for not longer than a year.  What this means is unclear, inasmuch as a proposed rule does not have an effective date.  If it means the committee could require the agency to defer finalization of the proposed rule for up to one year, this would be unconstitutional.  A committee of Congress cannot change statutory powers granted to an agency.  Of course, a statute could require agencies to delay finalization of proposed rules for up to a year after reporting them to the committee; this would be a typical report-and-wait provision.

Finally, the proposed resolution suggests that the permanent committee could require the agency to make changes to the proposed rule if the committee believes that the proposed rule needs to be rewritten, that the proposed rule is not a valid exercise of the agency’s delegated powers, that it is not in proper form (whatever that means), that it is inconsistent with the intent of Congress, or that it is not a reasonable implementation of the law.  This too would clearly be unconstitutional.  Even if Congress passed a law purporting to grant the permanent committee such powers, a law cannot grant a committee of Congress the power to make or execute laws.  This is the clear teaching of Chadha v. INS, 462 U.S. 919 (1983).  In that case, the Supreme Court instructed that Congress cannot make law except through bicameralism and presentment, and a committee’s requirement to revise a proposed rule (as opposed to recommend changes) would be an action with the effect of law.

At some point cooler, or better informed, heads will prevail and strike from this proposal any suggestion of such requirements before it is passed by both houses.  Or, more likely, the proposal will die on the vine, the political benefits from the publicity over its introduction and hearings about it having satisfied the beast.  

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Also from Bill Funk

William Funk is the Lewis & Clark Distinguished Professor of Law at Lewis & Clark Law School in Portland, Oregon.

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Funk | Oct 03, 2016 | Regulatory Policy

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