Surprise – Surprise, it’s almost hard to believe,
but yes, the Washington Post has finally admitted there is a problem with the
federal bureaucracy. The Potomac Leviathan
was cruising through a sea of red tape, spawning pods of regulation, when it
must have capsized a boat of so-called journalist.
Over the past
21 / 2 years, the Obama administration
has published hundreds of rules — on how wheelchairs should be stowed aboard
U.S. aircraft, how foreign trade zones should be regulated, how voting
assistance should be provided for U.S. citizens overseas and so on.
There’s a
problem, however: Technically speaking, these and about 1,800 other regulations shouldn’t be in
effect, because they weren’t reported to Congress as required. Yet there is
little that lawmakers or the courts can do about it.
The situation
illustrates the obscure, byzantine process used to create federal regulations —
and how easily it can go awry.
“It’s pretty
apparent that the system is broken,” said Curtis Copeland,
a retired Congressional Research Service staffer who discovered the issue. “It
would seem this is one area where congressional Republicans and Democrats could
get together and say: ‘This is crazy. We can fix this.’ ”
Under a 1996
statute, most federal rules are supposed to be reported to the House and Senate
in paper form and to the Government Accountability Office electronically. But
since the start of 2012, that hasn’t happened for many of the regulations put
out by the Obama administration, either because of bureaucratic oversight or
because they were considered too minor to be reported.
This beast has
been rendered harpoon proof. Congress and the federal judiciary made
damn sure no Captain Ahab could slay this white whale.
But there’s
another catch: Congress also barred such rules from judicial review. Two
federal appeals courts and two district courts have upheld
this principle even when the regulation in question was not submitted to
Congress as required. Since Congress cannot pass a resolution of disapproval
for a rule until it receives it, this means neither lawmakers nor the courts
can step in and demand that agencies submit the required paperwork.
Thar she
blows! Look out! The Potomac Leviathan
has swallowed Congress and sank the U.S. Constitution! And what is that strapped to her sides? Why its liberty! And it’s beckoning for someone to save it.
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