President Donald Trump’s (R) moves against regulations regarding our showerheads, dishwashers, stoves and ranges, and other household appliances has triggered a thought in me regarding regulation and Congressional delegation.
As we all know, Congress has delegated rule-making to the Executive Branch agencies and Departments, and many of us think Congress has over-delegated. Congressmen have shown themselves loath to wholesale claw back that delegation and write their own regulations to give concrete effect to Congress’ statutes. Here’s an easier move Congress could make regarding that delegation and rule-making.
Let the agencies and Departments conduct their rule-making in the current way, with the requirement for a comment period, the regulators required to take seriously the public’s comments during that period, and the writing of the “final” rule. The added steps are these, and they are few:
1. The agency/Department is barred from implementing the rule at any time in draft form, including via “guidance” letter, before it takes formal, legal effect
2. When the agency/Department has finalized its rule, it must submit the rule to Congress for approval
3. Each house of Congress must approve the rule via floor debate and majority vote—this is the step that gives the rule legal effect, not agency/Department finalization
4. Each house of Congress must approve the rule within 10 calendar days of its submittal to Congress
5. If both houses do not approve the rule within 10 calendar days, the rule is deemed disapproved, and it cannot take effect
6. If the rule is disapproved, whether by overt disapproval or by failure to approve within 10 days, the rule and no rule similar to it can be brought up again for six years
That last rule is especially important: it allows for the possibility of a complete turnover of the House of Representatives three times, it allows for the possibility of a complete turnover of the Senate, and it allows for the possibility of a complete turnover of the White House and, by extension, of the leadership of those agencies and Departments.
NB: I posted the gist of this to DOGE’s Regulations.gov, which is DOGE’s call for, and Web site for receiving, suggestions for rule changes and rescission by us ordinary Americans.
Because when I got to the head of the line, they were all out of humility, so I made up for it with an extra helping of hubris.
I would add one more requirement – each regulation must pass the Congress individually. There may be no clubbing together of any regulations to elicit approval of a batch which includes some favored and some disfavored regulations.
I agree. Good catch.
And one more rule: the “finalized” rule must be submitted by the Department/agency NLT the start of the business day next following that finalization. In truth, that will only beg the question, since the Department/agency can carry out its political collusion with Congressmen in the days and weeks prior to “finalization,” but there’s no point in leaving the collusion easy, and lots to be gained by attaching liability regarding the legitimacy of the finalization to the collusion.
Eric Hines