Posted on Thu, Apr. 01, 2004


Legislature doesn’t need more control over regulations



A BASIC TENET of government is that the legislative branch writes the laws and the executive branch carries them out. For very practical reasons, a nearly universal part of carrying out the laws is writing the detailed regulations that outline the steps people have to take to comply with those laws.

That means, for instance, that when the Legislature passed a law requiring that abortion clinics be licensed as medical clinics, it was up to the Department of Health and Environmental Control to spell out what kind of ventilation systems the clinics must have and what kind of records they have to send to the state and how they must dispose of medical waste. When the Legislature decided to create a database to identify drivers who don’t carry required auto insurance, it ordered the Department of Motor Vehicles to spell out which information insurance companies would send into the database, what kind of computer operating system would be used and what kind of security would be put in place to keep the information confidential.

The Legislature has always provided oversight of the regulatory process, through a complex procedure that allows it to review proposed regulations and block implementation of any it finds objectionable.

But legislators are accustomed to the law-making process, whereby a determined minority of lawmakers can frequently stop a law from passing by simply doing nothing. The regulatory process works the opposite way: Regulations take effect unless the Legislature takes action to stop them — a difference some legislators have always found galling.

So the House has passed legislation to alter the arrangement, and require legislative action for regulations to take effect, rather than requiring action to stop them. And the Senate, which has traditionally resisted such changes, seems poised to go along this year, either through a free-standing House bill up for debate in the Senate or through a provision attached to the government restructuring bill. (The second approach is bizarre: It suggests that it is more important for the Legislature to tighten its reins on the regulation-writing process in agencies the governor controls than in agencies that no elected official controls.)

This is not a change that we need.

Agencies do not have a free hand to impose whatever regulations they will upon the populace. The regulations must be consistent with state law. The Legislature has the power to pass a law that overrides any regulation that becomes a problem. And any time it wants to, the Legislature can obviate the need for regulations by writing specific enough requirements into the law.

But as former House Speaker Bob Sheheen notes, many agencies “do such technical things the Legislature would have to be there for 52 weeks, seven days per week” if it wanted to put all the details into the law. And that is the point. The level of detail that is necessary to make our insurance policies actually cover what the law requires them to cover and to make sure x-ray technicians know what they’re doing is beyond the scope of any legislative body; it’s what we hire professionals in various agencies to deal with.

Requiring positive legislative approval for these technical regulations, as opposed to merely giving legislators the opportunity to intervene if things gets out of hand, is a further insertion of the Legislature into the executive branch of government. As such, it is both unnecessary and unwise.





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