Attorney: HHS rulings show how Congress, courts allow executive branch to skirt constitutional procedure

05/02/19

Attorney Thomas Berry said in an interview that aired Thursday on “Rising” that numerous regulations issued by the Department of Health and Human Services (HHS) demonstrate how Congress and the courts have allowed the executive branch to skirt constitutional procedure. 

“What we really found is that, regardless of party, the executive branch likes to subdelegate this rulemaking power down as far as it can get away with to essentially, I suppose they would say streamline things, but we would say avoid political accountability,” Berry, an attorney for the Pacific Legal Foundation, told Hill.TV’s Buck Sexton on Wednesday. 

“It’s more a problem that Congress and the courts have kind of allowed the executive branch to take this end run around the proper constitutional procedure,” he continued.

A new study from the Pacific Legal Foundation found that 71 percent of 2,952 regulations issued by HHS from 2001 to 2017 were issued by “low-level officials and career employees,” who the foundation says “lacked the authority to do so.” 

“We intentionally went back all the way to the start of the George W. Bush administration to try to get a clear picture of both that administration and the Obama administration, and even the beginning of the Trump administration,” Berry said. 

Hill.TV has reached out to HHS for comment. 

— Julia Manchester

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