Bait-and-Switch Rulemaking

Posted in Weekly Newsletter on by .

dangle_carrotThe idea of “notice and comment” rule-making by administrative agencies is to publish proposed regulations and invite public comment and suggested modifications.

Agencies often take comments and proceed to do whatever they intended all along; still, that’s closer to honesty than the increasingly common practice of bait-and-switch rule-making by federal agencies soliciting public comment on proposed regulations, then finalizing rules that do something else.

Last Thursday’s Wall Street Journal noted a report from Senator Ron Johnson’s Homeland Security and Governmental Affairs Committee ripping FCC regulation of the Internet under a 1934 law aimed at phone companies—a result of changes demanded by the White House after public comment ended, ignoring FCC staff warnings that the heavily altered rule would be illegal without fresh notice and comment.

Last month, a majority of states and dozens more petitioners told a federal appellate court the EPA’s Clean Power Plan includes across-the-board restrictions on power plant carbon dioxide emissions the agency specifically disavowed during the rule-making’s comment phase.

Two weeks ago, another federal appellate court agreed to hear arguments on last fall’s “Waters of the United States” regulation asserting EPA jurisdiction over “water bodies” including millions of acres of dry land that gets wet maybe once in a hundred years. The Army Corps of Engineers, which co-proposed the regulation, warned to no avail that the EPA had so altered the rule’s content that it needed a new notice and comment period under federal law.

It’s good news that this Obama-era innovation is attracting adverse judicial attention. But it also emphasizes the absolute necessity of maintaining the U.S. Supreme Court vacancy until 2017, hoping in the meantime to elect a president who can be trusted to appoint judges who won’t rewrite laws and the Constitution.

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