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
  • David Schoenbrod, a pioneer in the field of environmental law, is currently examining how Congress could restructure environmental statutes so that their objectives could be achieved more effectively and efficiently. He teaches environmental law at New York Law School and has served as a senior staff attorney for the Natural Resources Defense Council, where he led the charge to get lead out of gasoline. Mr. Schoenbrod studies all major environmental areas, in particular air pollution and climate change. He also studies litigation in which court decrees dictate the management of governmental institutions, such as prisons, schools, and foster care agencies.
  • Email: david.schoenbrod@aei.org

What's new on AEI

image The Census Bureau and Obamacare: Dumb decision? Yes. Conspiracy? No.
image A 'three-state solution' for Middle East peace
image Give the CBO long-range tools
image The coming collapse of India's communists
AEI on Facebook
Events Calendar
  • 14
    MON
  • 15
    TUE
  • 16
    WED
  • 17
    THU
  • 18
    FRI
Wednesday, April 16, 2014 | 10:00 a.m. – 11:00 a.m.
Calling treason by its name: A conversation with Liam Fox

Join us at AEI as the Right Honorable Liam Fox sits down with Marc Thiessen to discuss and debate whether America’s intelligence agencies have infringed on the personal privacy of US citizens.

Thursday, April 17, 2014 | 4:00 p.m. – 5:00 p.m.
The curmudgeon's guide to getting ahead

How can young people succeed in workplaces dominated by curmudgeons who are judging their every move? At this AEI book event, bestselling author and social scientist Charles Murray will offer indispensable advice for navigating the workplace, getting ahead, and living a fulfilling life.

Event Registration is Closed
No events scheduled this day.
No events scheduled this day.
No events scheduled this day.
No events scheduled today.
No events scheduled this day.
No events scheduled this day.