On April 2, the Department of Transportation removed the Rule on Rules from the Code of Federal Regulations. We urge President Joe Biden and Secretary Pete Buttigieg to take a more intimate look at the 2019 changes before dismissing them.
During President Harry Truman’s administration when directions have the authority of law and are far more pre-eminent today than the Administrative Procedure Act codified measures for agency operations.
That was before courts commenced investing reasonable compliance to agency decisions and before Congress approved most of its parliamentary power to be transferred to the agencies. In 2016 alone, the annual costs commanded by national rules approached an estimated $1.9 trillion, or $15,000 per household, which is greater than the total revenue the IRS collected in individual income taxes that year.
Most federal legal requirements governing people’s daily lives are now created by agencies, whose ordinances often impose valuable duties and burdens, including criminal penalties.
The three rules are following for the first governs rulemaking.
- The first governs rulemaking. Whether the advantages of proposed rules will outweigh the costs, and “whether existing rules have created or contributed to” the problem in need of redress. Then, agencies must provide opportunities for public input, including, for the costliest rules, the potential for a public hearing on disputed facts critical to the rulemaking decision. Why not a major new rule that can have a much greater impact?
- The second piece covers guidance documents, which have too often been abused with a wink and a nod to “clarify” existing rules in ways that create new legal requirements while skirting the Administrative Procedure Act. The Rule on Rules ensures that all guidance is posted on a public website and requires the legal review of new guidance to ensure it doesn’t impose obligations that go beyond existing regulations. The Rule on Rules also requires agencies to offer the public an opportunity to comment if the guidance is likely to result in significant new compliance costs.
- The third element reforms agency enforcement practices. These rules strengthen and affirm basic due process requirements, including clear and adequate notice of claimed violations, a fair opportunity to be heard, the production of exculpatory evidence akin to the Brady rule followed in criminal matters, and structural protections to ensure fair and neutral proceedings. Unfortunately, here the Biden administration says it plans to jettison these protective rules altogether.