Senators Question Federal Agencies’ Backdoor Rulemaking

Published June 10, 2015

U.S. Senators Lamar Alexander (R-TN) and James Lankford (R-OK) are challenging federal agencies to explain their use of industry guidelines to force businesses into compliance with the agencies’ wishes without legal authorization.

Federal regulations, carrying the force of law, must be open to public inspection and comment. Guidelines are not processed through the same comment process as regulations, so government agencies can use them to bypass congressional oversight and scrutiny, Alexander and Lankford write in their letter.

Watching the Regulators

Mercatus Center Regulatory Studies Program Manager James Broughel says lawmakers should begin paying attention to how government agencies are sneaking regulations through the backdoor.

“It is good news that legislators are beginning to scrutinize the degree to which federal agencies are evading procedural requirements in the rulemaking process,” Broughel said. “Important checks and balances have been put in place over the last century to ensure that the public has a voice in the rulemaking process and that agency decisions are informed by sound economic analysis.”

‘Beyond Overdue’

Competitive Enterprise Institute Vice-President for Policy Clyde Wayne Crews Jr. says federal agencies are usurping Congress’s lawmaking authority. Crews is a policy advisor for The Heartland Institute, which publishes Budget & Tax News.

“The new effort by senators to investigate and scrutinize federal agencies’ skirting of the law is beyond overdue,” Crews said. “Agencies issue far more rules and laws than Congress does. Agencies issue regulations without providing the public adequate notice and providing an opportunity to comment, taking advantage of the ‘good cause’ exemption to bypass the requirement.”

Avoiding Oversight

Crews says executive branch agencies’ usurpation of Congress’s authority through the use of regulatory guidelines is just the tip of the regulatory iceberg.

“Agencies avoid public and congressional scrutiny by issuing memos, letters, guidance documents, bulletins, and other proclamations and decrees that influence the behavior of the public outside normal [Administrative Procedure Act] processes, let alone constitutional lawmaking processes,” Crews said.

D. Brady Nelson ([email protected]) writes from Washington, DC.

Internet Info:

John Morrall and James Broughel, “The Role of Regulatory Impact Analysis in Federal Rulemaking,” Mercatus Center: