A new study finds federal regulators in the Obama administration have repeatedly failed to follow requirements for rulemaking, enabling them to bypass public scrutiny of policy decisions.
American Action Forum, a nonprofit think tank, released a study in May reviewing all major rules catalogued by the Government Accountability Office, checking to see whether the rules had been published in the Federal Register, an official journal of the federal government containing government agency rules, proposed rules, and public notices.
Between 2009 and 2013, 20 major rules were classified as “notices,” which means they were released without any public comments. An additional 47 rules were published without first being proposed prior to their enactment. Other regulations were issued without any prior public notice, the study found.
Sam Batkins, director of regulatory policy for the American Action Forum, says most of the violations were committed by the U.S. Department of Health and Human Services (HHS), the federal agency responsible for operating Obamacare-related programs.
“A big chunk of them were the result of the Affordable Care Act regulations in 2010,” Batkins said. “I think the interim final rules under the Affordable Care Act were pretty egregious. I don’t know why something as important as health care, especially for the president and the nation as a whole, [would need to] rush through that process.”
Batkins says government agencies ignored requirements for public comments and oversight on major regulations.
“If you look through the data, for the most part, a lot of it is HHS and cabinet agencies,” Batkins said. “We’ve found very few independent agencies actually went to a final rule.
“We’re not talking sort-of-routine notices or directives, or even an emergency regulation for the health and safety of the nation,” Batkins said. “We’re talking about major regulations. To have 20 of them fly through the process without any input from the public, I think is concerning.”
David Schoenbrod, a trustee law professor at New York Law School, says these regulatory failures are unforced errors.
“It seems to me, from their point of view, that’s absolutely insane,” Schoenbrod said. “It sounds to me not [like] nastiness on their part, but stupidity.”
Schoenbrod says regulators’ failure to follow the rulemaking process may lead to courts rolling back those policies.
“There are certain rules that don’t need to go through the full process,” Schoenbrod said. “If they are the kind of rules that require the full rulemaking notice and comment-taking process, and they didn’t do it, it really is dumb, because the court—even a liberal court—would routinely reverse it.”
Andrea Dillon ([email protected]) writes from Holly Springs, North Carolina.
Sam Batkins, “Obama Administration Issued 67 Major Rules Without Comment or Proposal,” American Action Forum, May 2, 2016: http://www.americanactionforum.org/insight/obama-administration-issued-67-major-rules-without-comment-proposal/