© Provided by Washington Examiner In 2019, the Department of Transportation published a groundbreaking regulation dubbed the "Rule on Rules," designed to reinforce due process and procedural transparency in rulemaking and enforcement actions. These are hallmarks of good government that protect everyone from arbitrary and overbearing administrative power.
But on April 2, the Department of Transportation removed the Rule on Rules from the Code of Federal Regulations. That's too bad, and we urge President Joe Biden and Secretary Pete Buttigieg to take a closer look at the 2019 reforms before eliminating them entirely.
Regulations have the force of law and are far more prominent today than during President Harry Truman's administration, when the Administrative Procedure Act codified standards for agency actions. That was before courts started granting generous deference to agency decisions and before Congress allowed most of its legislative power to be transferred to the agencies.
As a result, most federal legal requirements governing people's daily lives are now created by agencies, whose regulations often impose substantial obligations and burdens, including criminal penalties. Regulations also foist a hidden tax on the U.S. economy. In 2016 alone, the annual costs imposed by federal rules reached an estimated $1.9 trillion, or $15,000 per household, which is actually greater than the total revenue the IRS collected in individual income taxes that year.
This enormous shift of power from Congress to the administrative state makes it more crucial than ever to ensure that agencies use open and transparent procedures and strictly observe due process when exercising their regulatory authorities.
Unfortunately, far from enhancing these protections, administrations of both parties have allowed them to erode. As a result, agencies today can often issue a major new regulation, imposing billions of dollars of cost burden on the economy and eliminating hundreds of thousands of jobs, more quickly and easily than they can grant a permit for a much-needed bridge or tunnel, and usually with less meaningful opportunity for public input.
That's why the Department of Transportation published the Rule on Rules, and that's also why we urge the Biden administration to take a closer look before withdrawing it. Whatever our differences on the substance of policies, shouldn't we all agree that procedural transparency and due process are values worth strengthening?
One of the stated justifications for withdrawing the Rule on Rules is that it governs internal processes that need not be published in the Code of Federal Regulations. Yet, codifying procedural protections in the Code of Federal Regulations makes the agency's commitment to follow them more formal, definite, and predictable, and it makes it easier to challenge the agency if it falls short.
There are three main parts to the Rule on Rules. The first governs rulemaking. It requires officials to assess the need for rule changes, whether the benefits 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. If the proposal to build a bridge merits a hearing and a vibrant discussion of alternative solutions, why not a major new rule that can have 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 actually 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 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. Who could object to giving people a chance to comment on significant new guidance?
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.
The argument for doing so is superficially clever - that the agencies don't need to adopt due process protections by rule, since they can simply rely on judge-made case law to establish the necessary guardrails. But this rationale allows agencies to exploit the limits of judicial-deference doctrines, such as Skidmore and Auer deference, to expand the bounds of their enforcement authority. The result can be "gotcha" actions by agencies and, in effect, the imposition of new regulatory requirements on millions of people through enforcement cases brought against one or two actors. The Rule on Rules was crafted to prevent these abuses. Can anyone seriously argue that federal agencies should be allowed to hide exculpatory evidence?
Taken together, the reforms in the 2019 Rule on Rules promote basic values of fairness and openness in federal regulatory and enforcement actions and help ensure transparency, consistency, and appropriate opportunities for public input. These are process reforms only (behind the Rawlsian veil, so to speak), and they don't dictate the substantive policy agenda the new administration can pursue. We sincerely hope that, after careful consideration, the Biden administration ultimately decides to embrace these reforms instead of throwing them overboard.
Steven G. Bradbury is the former general counsel of the U.S. Department of Transportation and acting secretary of transportation. Loren A. Smith, Jr. is the president of Skyline Policy Risk Group and a former official at the U.S. Department of Transportation.
Tags: Opinion, Op-Eds, Joe Biden, Biden Administration, Pete Buttigieg, Transportation, Regulation
Original Author: Steven Bradbury, Loren Smith
Original Location: Biden, please don't retreat from good-government reforms