CEI study: Congress should establish limits on regulatory power to ensure agencies are not answering major policy questions

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Many of the biggest policy decisions affecting the lives of Americans are made by federal agencies, not Congress. According to a new report from the Competitive Enterprise Institute (CEI), agencies go well beyond the bounds of the law by using ambiguities and any discretion afforded to them in existing law to promulgate rules that Congress never authorized.

During the Biden Administration, examples include rules ranging from the Environmental Protection Agency's (EPA) effort to limit the availability of gas-powered cars to the Centers for Disease Control and Prevention's (CDC) nationwide eviction moratorium that was struck down by the Supreme Court.

"Congress did not tell the EPA to issue rules that would reduce the number of gas-powered cars or the CDC to impose a nationwide eviction moratorium - the agencies made these policy decisions themselves," said Director of CEI's Center for Energy and Environment and study author Daren Bakst. "Agencies are doing end-runs around Congress and the protections that exist in the legislative process that ensure laws have proper buy-in, consider the interests of all Americans, and reflect the will of the people."

The regulatory process is governed by the Administrative Procedure Act of 1946, which includes requirements that agencies publicly announce when they are proposing a new rule, seek public comment on the proposal, and consider that input when finalizing a rule. Bakst writes that the APA has not been meaningfully amended in its nearly 80-year history. It has failed to ensure that agencies do not usurp Congressional lawmaking power.

The report recommends requiring agencies to have clear authority for certain types of rules. These would be rules in which it would defy common sense to think Congress would have authorized them, absent this clear authority. If there isn't clear authority, then the rules would be prohibited. The covered types of rules include:

• Any rule that is outside the agency's statutory mission or regulatory expertise;
• Any rule that would reshape or change the nature of an industry, such as bans or restrictions on types of goods and services, or shutting down types of businesses;
• Any rule that would cost $300 million annually or $3 billion in total cost;
• Any rule that would intrude on a traditional state power; or
• Any rule that resolves an issue Congress has repeatedly and conspicuously declined to address itself.

"Answers to major policy questions need to come from Congress, not federal agencies," said Bakst. "More importantly, Americans should feel confident they are voting for elected officials who are making the laws."

READ Congress, Not Agencies, Should Answer Major Policy Questions: A legislative blueprint for restoring representative government on CEI.org.