Elections don’t matter unless you have this rulemaking fix

Dr. Anthony Fauci, White House Chief Medical Advisor and Director of the NIAID, responds to questions from Sen. Rand Paul (R-Ky.) during a Senate Health, Education, Labor, and Pensions Committee hearing on Jan 11, 2022.
Greg Nash

Most politicians won’t soon forget the pandemic-restriction backlash against governors and state officials that became evident after the November 2021 elections. And there is a high likelihood of that sentiment continuing this November in state elections. Elections are often referendums on government policy. Lesson learned? Perhaps. But elections can’t touch those who aren’t elected.  

More than two years into a pandemic, there isn’t an American who doesn’t now know the perils of putting unelected officials in charge of health and safety. Sadly, this isn’t a new government practice — it’s just one that we’ve all had the misfortune of bearing over the longest “two weeks” of our lives. Despite recent reassurances by the president in his State of the Union address that things are getting better, President Biden coupled that with the ominous possibility that a new COVID-19 variant can change the game, reminding us that we’re only one degree away from a return to restrictions. 

The Ensuring Accountability in Agency Rulemaking Act seeks to make officials more accountable for the regulations enacted by federal agencies. The legislation, with the bipartisan original sponsorship of Reps. Ben Cline (R-VA), Jared Golden (D-Maine), Scott Perry (R-Pa.) and Ted Budd (R-N.C.), would limit rulemaking creation and final sign-off to those officials who have been appointed by the president and confirmed by the Senate. Compare that with the current practice — no limits on who can push through a regulation that could affect millions of lives. 

When a federal government official is appointed by the president and confirmed by the Senate, that person is one step closer to being accountable to the public. That pales in comparison to how far removed from the democratic process most officials who write administrative rules can be. 

A study by Pacific Legal Foundation, “But Who Rules the Rulemakers?” showed that in the Department of Health and Human Services, 75 percent of the rules issued over a 17-year period were likely unconstitutional, because they were issued by officials and employees of the federal government who were not appointed by the president and confirmed by the Senate. A deeper dive into the Food and Drug Administration (FDA) showed that 98 percent of their rules fell under that banner, including 25 rules that each had an impact of $100 million or more.  

Under the Ensuring Accountability in Agency Rulemaking Act, only those officials who the president nominates and who have come before the Senate for that body’s approval can initiate and approve such impactful changes. These rules have the power of law, so it would only make sense that the legislative branch has some say in who is behind them. The executive branch has an interest in this as well, and this new standard is a means to ensure that the president’s wishes are carried out, rather than passing the buck to career officials who aren’t touched by the political process. 

An emergency could excuse some of these unaccountable decrees — maybe that would have been the case if the COVID restrictions actually had been only two weeks long. Sadly, this is the norm for rulemaking. If the people who write these rules have absolutely no nexus to elected officials, the electorate has no recourse, no one who answers to them. The Ensuring Accountability in Agency Rulemaking Act solves a constitutional problem with federal rulemaking and keeps unelected regulators in check.  

Joe Luppino-Esposito is a deputy legal policy director at Pacific Legal Foundation, a nonprofit legal organization that defends Americans’ liberties when threatened by government overreach and abuse. Follow him on Twitter @avgjoele.

Tags Accountability Administrative law Ben Cline covid-19 restrictions Jared Golden Joe Biden Rulemaking Scott Perry Ted Budd

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