New accountability bill aims to strip low level federal officials of power to codify U.S. regulations

A new accountability bill introduced by a bipartisan group of lawmakers aims to strip certain U.S. officials of charging Americans regulatory costs.

The new “Ensuring Accountability in Agency Rulemaking Act,” if passed will prevent executive branch appointees who were not confirmed by the U.S. Senate of certain powers that enable them to impose billions in regulatory costs on the public.

The new legislation was proposed by Republican Rep. Ben Cline, Democrat Rep. Jared Golden of Maine along with several other Republicans last week. The bill will ensure that all federal regulations imposed on Americans are proposed and approved only by U.S. officials who are Senate-confirmed through a nomination and confirmation process.

Some U.S. officials are hired directly through the merit systems process while others receive presidential appointments from the White House Office of Presidential Personnel.

Of the latter group, only some appointees go through a nomination process and confirmed by the U.S. Senate, whose job, according to the Constitution is to advise and consent the president on appointment matters.

The bill’s supporters believe that too many U.S. regulations are being codified by lower level agency officials creating a plethora of codes that are almost impossible to keep up with and have had a negative impact on America’s gross domestic product (GDP) by 10%.

Lawmakers also said the over-codification issue is happening across the federal government and some agencies are worse than others.

The bill’s origins stem from a 2019 study by the Pacific Legal Foundation, which determined that 98% of all regulations that arose out of the Food and Drug Administration (FDA) and Department of Health and Human Services’ (HHS) between 2001 and 2017 were codified “illegally” by officials who should have been confirmed by the U.S. Senate.

The PLF study also cited a 2016 study conducted by the Mercatus Center at George Mason University that estimated that some of the regulations cost Americans as much as $4 trillion in economic growth from 1980 through 2012.

Those regulations, that study concluded resulted in a whopping loss of nearly $13,000 per American.

“The public bears these costs directly and indirectly through higher prices for goods and services, reduced consumer choices, stagnant wages, lost jobs, and limitations on their freedoms. Businesses don’t “absorb” these losses—people do,” says the PLF study.

The PLF study also found that 25 of those rules had a massive economic impact totaling more than $100 million, and that the FDA’s frequency of codifying rules from non-senate confirmed officials meant that more than 70% of all HHS rules were “unconstitutional.”

As such, the PLF has filed lawsuits to challenge federal rules that issued improperly, a move that was compelled some agencies to ensure their regulations are issued properly by senate confirmed officials.

The underlying law supporting the foundation’s argument is Article II, Section 2, Clause 2 of the Constitution, otherwise known as the Appointments Clause, which requires the U.S. government to go through senior appointed officials to codify regulations.

The foundation has found support from major Supreme Court cases such as Buckley v. Valeo in 1976 and Edmond v. United States in 1997.

Those cases reinforced the notion that “only principal agency officers may issue regulations that have the force of law.”

According to the foundation the bipartisan support of the legislation proves that both parties see a significant problem in that the federal government is empowering too many minor officials.

The group in Congress pushing the bill is known as the House Problem Solvers’ Caucus, a collective of lower chamber Members who seek solutions to overreaching executive branch authority.

Cline also said he believed the new House Republican leadership would move the bill forward soon, according to comments reported by FOX News Digital.

“Leadership is going to be interested in setting down markers on overreaching by the executive branch, and so they’ve looked to bills like this one that have statistics and facts and figured to back them up, so hopefully we’ll see this move fairly early,” he said.

Under the new legislation, most federal rules will only be “issued and signed by an individual appointed by the president, by and with the advice and consent of the Senate,” he added.

The legislation can also only be initiated by senate confirmed officials to ensure that more regulations are not being developed by lower level officials and just sent above for ceremonial signoffs.