Lawmakers aim to curb agencies' power

klunney@govexec.com

Congress is giving federal agencies too much legislative power, a panel of witnesses before a House Government Reform subcommittee charged Wednesday.

Sen. Sam Brownback, R-Kan., and Rep. J.D. Hayworth, R-Ariz., testified before the Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs on the dangers of handing over law-making authority to the executive branch.

"By delegating Congress' powers to the executive branch, the people have no recourse, because the executive branch employees that craft these rules and regulations are unelected and unaccountable," said Hayworth.

The Constitution grants legislative power solely to Congress. When Congress delegates regulatory power to an agency, that power is not absolute: the legislative branch ultimately has the final say in approving or rejecting regulations.

Hayworth and Brownback have both introduced legislation, known as the Congressional Responsibility Act, requiring congressional approval for all agency regulations before they are enacted.

Both men criticized lawmakers for participating in the "Washington two-step,"-taking credit for passing popular legislation, but often letting agencies take the heat for unpopular rules.

In March 1996, Congress passed the Congressional Review Act (CRA) as a vetting process for new agency regulations, but has yet to veto a single agency rule since its passage.

The controversial case Browner v. American Trucking Associations has been central to the debate over agencies' regulatory powers. In 1999, the D.C. Court of Appeals held that the Environmental Protection Agency had overstepped its authority when it created new ozone standards. The case is currently before the Supreme Court.

Although most witnesses generally agreed that Congress delegates too much authority to the agencies, Wendy E. Wagner, a law professor at Case Western Reserve University, said a case for broad delegation of powers could be made.

"The public, for example, may prefer broad delegations if they are the only way of overcoming legislative deadlock on timely and important social problems. Broader delegations to the agencies may also be preferable in circumstances where a problem is simply too complex for Congress to efficiently resolve at a legislative level," Wagner testified.

The agencies generally do a good job of using discretion when implementing regulations, said John T. Spotila, administrator for the Office of Information and Regulatory Affairs at the Office of Management and Budget. He said the Commerce Department refrained from issuing a final rule on manufacturing specifications for nuts and bolts, instead working extensively with Congress on crafting cost-effective legislation.

"Federal agencies make good faith efforts to develop, assess, implement, and enforce regulations that implement government programs," Spotila said.

H.R. 2301 and S. 1348, introduced in 1999, are currently in committee.

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