In recent Heritage research, Boston University law professor Gary Lawson describes the shortcomings of the current informal rulemaking process, in which bureaucrats use power delegated to them by law with little oversight or accountability. Using Obamacare as his prime example, Lawson writes:
[Obamacare] will not emerge from the constitutional process for lawmaking, in which the House and Senate vote on bills and then present them to the President for signature or veto. Rather, the operational law of [Obamacare] will emerge from administrative rulemakings by unelected—and in many instances largely unknown—agency officials.
How? Like many major pieces of modern legislation, Obamacare is “aspirational,” meaning that it grants unelected bureaucrats the power to set rules for a specific end. Aspirational legislation has become popular with both major political parties, providing an out to Congressmen who deem an issue too controversial by allowing them to hand over their duties to unelected federal officials in the executive branch.
Over 40 provisions in Obamacare delegate authority to unelected bureaucrats, and there are over 100 provisions that make additional references to them. Thus, according to Lawson, “the implementation of [Obamacare] will require many years and literally thousands of administrative regulations, and those regulations will ultimately determine the substantive content and coverage of the law.”
H.R. 1432—the Creating Sunshine, Participation, and Accountability for Our Nation Act—proposes significant reforms to make Obamacare’s bureaucracy more transparent. Recently introduced by David Schweikert (R–AZ), the bill stipulates that “any rule issued pursuant to [Obamacare] or its amendments ‘shall be made on the record after opportunity for an agency hearing’ and that such hearings shall be ‘(1) open to the public, including to radio and television coverage; and (2) presided over by an officer confirmed by the Senate.’” This way, Americans will be able to have more access to the decisions being made about their own health care and that of their families.
If America is going to preserve the timeless principles of liberty and republican government, her governing bodies must be accountable to voters. As the federal government grows, more decisions affecting the lives of Americans are placed in the hands of regulatory bodies unaccountable to the people. As Heritage senior fellow Robert Moffit writes, “On crucial issues that affect their daily lives, ranging from running their businesses to choosing their health care, Americans are becoming the subjects of an administrative state rather than citizens of a constitutional republic.”
Lawson’s research makes the case for why enacting H.R. 1432 would be an important step in this direction, making Obamacare more transparent and accountable to the American people.