The regulations implementing these bills, added to the already active regulatory process, leads many to believe that the rulemaking process is on steroids.  Many in Congress criticize the administration for this.  In reality, Congress itself shares a good deal of the blame.

The federal regulatory state began in the 1930’s with the New Deal and the creation of many of today’s executive branch departments and agencies to deal with the increasing complexities of society.  Congress ceded broad delegations of authority to the executive branch to fill in what Congress had neither the time nor expertise to say in legislation.  What if anything is new or different today?  A lot.

Congress still does not have the ability, time or desire to draft the numerous technically arcane provisions necessary to regulate industries like pharmaceuticals, airlines, highway safety and the myriad of other areas that affect the nation on a daily basis and so it delegates the authority to the FDA, FAA, and other regulators. 


But just as partisan politics have made legislating so difficult today, those politics have had a profound impact on the regulatory process.  How so?

Using ACA and Dodd Frank as examples, it is apparent that when these bills were being debated, the leadership of the House and Senate punted on numerous issues that were bogging down the legislative process.  When in doubt, kick it to the regulators.  The goal simply was to get something passed.  While this is normal in any significant legislation, it is the extent to which it was done that is noteworthy. 

Of course this was only possible because the same party controlled both bodies of Congress and the White House.  Had this not been the case, proponents of the legislation might have insisted on more finality rather than deferring to the executive. 

Once again one may say, “There is nothing new here.”  But there is, at least since the 1980s.  Prior to 1983, when in doubt, Congress was able to reserve to itself the last word in the regulatory process by including a legislative veto in the delegation to the executive.  Under such a procedure, no more than one or both houses of Congress or even a committee could veto a  rule.  In a way this actually promoted the regulatory state because Congress knew that in the end it could rein in a department that it believed had exceeded the Congressional intent of the delegation.  In 1983, however, the Supreme Court, in INS v.Chadha, ruled that such legislative vetoes violated the Presentment Clause and that regulations could only be negated by Congress through a resolution passed by both bodies and enacted by the President, or if vetoed, overridden. 

Chadha may have returned the constitutional balance that the Framers intended, but it upset the political balance between the legislative and executive branches that had evolved since the creation of the regulatory state during the New Deal.  After Chadha, the balance of power shifted mightily toward the executive branch.  Unquestionably, Congress needs the executive branch to carry out a multitude of delegations with varying degrees of importance.  But there will always be delegations that Congress knows later will give rise to controversial rules.  Congress should have the ability to overturn such rules without the concurrence of the executive. 

Perhaps it’s time to start a national movement to promote a constitutional amendment that would restore Congress’ ability to include legislative vetoes. 

Today it is virtually impossible for Congress to override an agency or even amend a rule that has been issued.  No president will sign into law such legislation repudiating his own administration’s actions.  In 1996 amidst much fanfare Congress passed the Congressional Review Act which was supposed to be a way to facilitate Congressional review and if necessary, repeal of agency action.  But because anything that Congress does under the CRA must be approved by the President or overridden by two-thirds of Congress, the CRA is a paper tiger.  You can count on one finger the times that the CRA has been successful. 

So the next time a member of Congress complains about either too many rules or rules that go beyond congressional intent, they should remember that the process began in Congress.  In the future, Congress  might be more careful about what is being delegated and demand more certainty in legislation in its passage.  And for the more ambitious, it may be time to bring back the legislative veto to reinstate Congress’ role in the rulemaking process.

Spulak is a King & Spalding partner and chair of its Government Advocacy and Public Policy Practice Group. He served as Staff Director and General Counsel of the House Committee on Rules, and as General Counsel to the House.