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. |