House approves bill adding more red tape to agency rulemaking process

The House on Tuesday voted 218-203 to pass legislation that Republicans argue will improve accountability in the federal rulemaking process, but Democrats and the Biden administration blasted it as a “nihilistic” effort to block agencies from issuing regulations to protect Americans.

The Ensuring Accountability in Agency Rulemaking Act (H.R. 357), introduced by Rep. Ben Cline, R-Va., would require the vast majority of regulations issued by federal agencies to be signed and issued by a Senate-confirmed agency head and that the “initiation” of rulemaking or a regulatory agenda must be done “by a senior appointee.” An exemption exists if the agency head determines that compliance with the bill “would impede public safety or security.”

Cline said Tuesday that his bill would take power away from unelected “bureaucrats” and ensure regulations have the backing of political leaders at federal agencies who are accountable to the president.

“This bill will increase the accountability of policymakers in the executive branch,” Cline said. “3,168: that’s the number of final rules enacted by federal agencies in 2022. In that same year, Congress passed just 247 laws. This statistic helps to illustrate just how much of federal law comes from unelected officials in the administrative state, not from Congress. Under current law, some of those who initiate and enact rules lack direct accountability . . . Nonetheless, they impose binding legal obligations on Americans.”

But the Biden administration and Democrats fiercely oppose the legislation, arguing that the bill is actually an effort to simply make it harder for agencies to implement laws that Republicans don’t like and would make the Senate confirmation process even more fraught politically.

“This bill would result in unnecessary delays in the regulatory process when Senate-confirmed positions are temporarily filled by senior officials while nominees await confirmation,” the White House wrote in a statement threatening to veto the bill. “It would add unnecessary bureaucratic hurdles that would encumber the rulemaking process without providing any additional benefits, as there are procedures already in place that provide for engagement, oversight and accountability by executive branch agency leadership.”

“This misguided proposal ensures that the process of confirming nominees is even more politicized and onerous than it is today, while blocking the work of federal agencies,” said Rep. Jerry Nadler, D-N.Y. “Over the past decades, the process for Senate confirmation [of presidential appointees] has lengthened considerably, while we still have over 1,000 executive branch roles requiring confirmation. Far too many go unfilled for years at a time as it is. By requiring this, you’ll make the confirmation process even more politicized and give individual senators even more incentive to block nominees’ confirmation.”

Nadler also excoriated the bill over its “sloppy drafting,” including the use of undefined terms, which he said, if enacted, would lead to extensive litigation over how the law should be implemented.

Cline sought to assuage those concerns, arguing that there are avenues for regulations to move forward even without a Senate-confirmed agency head to sign off on them. He noted that an acting or otherwise non-Senate confirmed agency leader may still authorize the “initiation” of a rulemaking process, even though they could not sign off on a notice of proposed rulemaking or final rule.

“The Senate needs to do their job of advice and consent on nominees from the administration, and the Senate has the means by which to address the challenges [Nadler] raises,” Cline said. “The president also has the means to do so through recess appointments. In addition, there is an exception if the head of an agency determines that compliance [with the bill] would impede public safety or security. All that needs to happen is for them to submit a notification disclosing the reason for the exemption.”

But Nadler again argued that even those exceptions are ill-defined.

“The gentleman said that recess appointees could help solve the problem,” Nadler replied. “But they aren’t confirmed by the Senate, so they can’t approve any regulation. It’s irrelevant . . . And [in the exception provision], there is nothing there to define ‘public safety’ or “security,’ so that doesn’t help at all.”

The sharpest words in opposition to the bill came from Rep. Mary Gan Scanlon, D-Pa., who accused Republicans of trying to “derail” the rulemaking process altogether.

“This paints hardworking federal employees as faceless bureaucrats who are hostile to everyday Americans,” she said. “[It’s] clear that my Republican colleagues don’t want government to work better. They’re nihilists, dedicated to grinding government to a halt. They’d prefer to upend the regulatory process, even if it improves the lives of Americans every single day.”

The bill now heads to the Senate, where Democrats are unlikely to consider it.