Minor, faceless federal officials would be stripped of their power to regulate in new bipartisan bill

A bipartisan group of House lawmakers introduced a bill last week aimed at preventing minor federal officials who were never confirmed by the Senate from imposing billions of dollars of regulatory costs on Americans each year.

The “Ensuring Accountability in Agency Rulemaking Act” was put forward by Reps. Ben Cline, R-Va., Jared Golden, D-Maine, and a handful of other Republicans last week. The bill is an attempt to ensure all federal regulations are legally initiated and issued by federal officials who are Senate-confirmed and thus more accountable to American voters.

Cline said too many regulations are released by minor agency officials, which has led to myriad new rules that contribute to soaring federal mandates, which he said costs 10% of America’s gross domestic product each year.

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The bill is an attempt to ensure all federal regulations are legally initiated and issued by federal officials who are Senate-confirmed and thus more accountable to American voters.
(Samuel Corum/Bloomberg via Getty Images/File)

“The problem is across the board,” Cline told Fox News Digital. “It’s just in varying degrees, depending on which agency you’re dealing with.”

The bill is a response to a 2019 study by the Pacific Legal Foundation, which found that 98% of all rules that came out of the Department of Health and Human Services’ (HHS) Food and Drug Administration (FDA) between 2001 and 2017 were issued “illegally” by non-Senate confirmed officials and that other agencies had similar problems. The study found that 25 of those rules had an economic impact of more than $100 million and that the FDA’s high incidence of rules issued by minor officials meant that more than 70% of all HHS rules were “unconstitutional.”

Joe Luppino-Esposito, deputy legal policy director at the foundation, said his group has been involved in lawsuits against federal rules that are not issued properly, which has forced some agencies to go back and get sign-off from appointed officials.

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Rep. Ben Cline, a Republican from Virginia, is behind a new bill that would require federal rules to be issued by senior officials who are more accountable to voters.
(Greg Nash/The Hill/Bloomberg via Getty Images/File)

The legal theory underpinning this effort is that the Constitution’s Appointments Clause requires senior appointed officials to impose regulatory burdens on Americans, a view the foundation says has been supported by a few Supreme Court cases: Buckley v. Valeo in 1976 and Edmond v. United States in 1997. The foundation says those cases backed the idea that “only principal agency officers (like department heads and assistant secretaries confirmed by the Senate) may issue regulations that have the force of law.”

Luppino-Esposito said the bipartisan nature of Cline’s bill shows that “people on both sides of the aisle are recognizing” the problem of ceding too much authority to minor, unknown officials who aren’t directly accountable to the people.

Cline said he and Golden joined the House Problem Solvers’ Caucus at the same time and that they both agree on the need to address this growing issue.

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The Department of Health and Human Services, now led by Secretary Xavier Becerra, is a major source of rules issued without top-level input, according to a study.
(Amanda Andrade-Rhoades/Bloomberg via Getty Images/File)

“We both share an outlook on overreaching executive branch authority, and I think we’re trying to solve a problem here that’s gotten … to be a significant program and is affecting the daily lives of Americans,” he said.

Cline also predicted that new House Republican leadership would be interested in moving the bill soon.

“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.

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Under the bill, most federal rules would have to be “issued and signed by an individual appointed by the president, by and with the advice and consent of the Senate.” The bill also holds that rules must be initiated by these senior officials.