Elected lawmakers accountable for the laws–gasp!

Speaker John Boehner

Speaker Boehner presides over the House during the official photograph of the House of Representatives of the 112th Congress in the House Chamber. July 26, 2011.

Article Highlights

  • Regulation delay on lead in gasoline caused more deaths and permanent disabilities than American casualties in Vietnam

    Tweet This

  • While Congress will reject some regulation, this does not mean less regulatory protection

    Tweet This

  • Congress and agencies’ Pass-the-bucket-and-point-the-finger tactic is recipe for regulatory stalemate

    Tweet This

If Congress could not in 1970 have passed the buck on lead in gasoline by giving the EPA a vague mandate to regulate it, Congress itself would have issued a rule that would have gotten the lead out far faster than the fifteen years it took the EPA. The delay caused more deaths and permanent disabilities than American casualties in the Vietnam War.

The House of Representatives is scheduled to vote this coming Wednesday on a bill that would bring the big bucks right back to Congress. H.R. 10 requires Congress to approve or disapprove major agency regulations. Legislators would have to vote on the rules—that is, the laws— which unelected agency officials issue under vague mandates from Congress.

"In a representative democracy, the right way to find out which regulations the voters desire is for their elected representatives to vote on them."--David Schoenbrod

The idea of elected lawmakers being accountable for such laws gives fits to consumer and environmental groups whose power comes from their relationship with agencies. One consumer advocate warned that a "single member of Congress, at the behest of some powerful special interest or campaign contributor, could block" a regulation. This is an outright misrepresentation. The bill requires the House and Senate to vote on major regulations within 70 legislative days and with no filibuster.

Another advocate, this one from the Cry Wolf Project (I am not making this up) opines that the bill is a ploy to further delay an administrative process that is already too slow to get rid of such dangers as "lead in gasoline." This claim is strange to me. It was my experience as the lawyer heading the environmental campaign back in the 1970s to force EPA to treat lead in gasoline as a health hazard that forced me to conclude that Congress taking responsibility would have resulted in far better health protection, as I showed in a book published by Yale University Press.

Congress will undoubtedly reject some regulations, but this does not necessarily mean less regulatory protection. Congressional responsibility would turn the tables on opportunistic legislators who vote for statutes mandating agencies to regulate, thereby claiming credit for the benefits of regulation, and then turn around and scold the agency for the cost of regulations, thereby claiming credit for protecting hometown industries. This pass-the-buck-and-point-the-finger tactic is a recipe for regulatory stalemate. As James Landis, the New Deal's sage of administrative law and later dean of the Harvard Law School, argued, "it is an act of political wisdom to put back upon the shoulders of Congress" responsibility for "controversial choices."

The legislators are, of course, less knowledgeable than agency experts, but the agency would, as Landis put it, continue to be "the technical agent in the initiation of rules of conduct, yet at the same time... have [the elected lawmakers] share in the responsibility for their adoption."

In a representative democracy, the right way to find out which regulations the voters desire is for their elected representatives to vote on them. The upshot would be that agencies would talk to centrist legislators before promulgating regulations. That is how we should get to sensible outcomes in a democracy, not by elected lawmakers hiding behind unelected agency officials.

David Schoenbrod is a visiting scholar at AEI

Also Visit
AEIdeas Blog The American Magazine
About the Author

 

David
Schoenbrod

What's new on AEI

Love people, not pleasure
image Oval Office lacks resolve on Ukraine
image Middle East Morass: A public opinion rundown of Iraq, Iran, and more
image Verizon's Inspire Her Mind ad and the facts they didn't tell you
AEI on Facebook
Events Calendar
  • 21
    MON
  • 22
    TUE
  • 23
    WED
  • 24
    THU
  • 25
    FRI
Monday, July 21, 2014 | 9:15 a.m. – 11:30 a.m.
Closing the gaps in health outcomes: Alternative paths forward

Please join us for a broader exploration of targeted interventions that provide real promise for reducing health disparities, limiting or delaying the onset of chronic health conditions, and improving the performance of the US health care system.

Monday, July 21, 2014 | 4:00 p.m. – 5:30 p.m.
Comprehending comprehensive universities

Join us for a panel discussion that seeks to comprehend the comprehensives and to determine the role these schools play in the nation’s college completion agenda.

Event Registration is Closed
Tuesday, July 22, 2014 | 8:50 a.m. – 12:00 p.m.
Who governs the Internet? A conversation on securing the multistakeholder process

Please join AEI’s Center for Internet, Communications, and Technology Policy for a conference to address key steps we can take, as members of the global community, to maintain a free Internet.

Event Registration is Closed
Thursday, July 24, 2014 | 9:00 a.m. – 10:00 a.m.
Expanding opportunity in America: A conversation with House Budget Committee Chairman Paul Ryan

Please join us as House Budget Committee Chairman Paul Ryan (R-WI) unveils a new set of policy reforms aimed at reducing poverty and increasing upward mobility throughout America.

Thursday, July 24, 2014 | 6:00 p.m. – 7:15 p.m.
Is it time to end the Export-Import Bank?

We welcome you to join us at AEI as POLITICO’s Ben White moderates a lively debate between Tim Carney, one of the bank’s fiercest critics, and Tony Fratto, one of the agency’s staunchest defenders.

No events scheduled this day.
No events scheduled this day.
No events scheduled this day.
No events scheduled this day.
No events scheduled this day.