Making Obamacare Bureaucrats Play by the Rules

Kevin Burns /

In one of the most illuminating moments of the Obamacare debate, then-Speaker Nancy Pelosi said “we have to pass the bill so that you can find out what is in it.”  Pelosi meant that we would learn the truth about the bill after the controversy had died down. However, her words apply to Obamacare more than she knew. The Patient Protection and Affordable Care Act is not really a law, and we still do not know its full affects.

Laws set norms to regulate conduct. Obamacare, like most major laws, does not really do this. Instead, it authorizes administrators to make laws, insofar as they make the rules and regulations to govern our conduct. The public will not know the full implications of Obamacare until after unelected—and usually unknown—agency officials make the rules.

In response to these concerns, Representative David Schweikert (R-AZ) has introduced H.R. 1432, the Creating Sunshine, Participation, and Accountability for Our Nation Act, which would provide for greater transparency in agency rulemaking. As Gary Lawson explains, H.R. 1432 mandates that any rule issued pursuant to Obamacare must be made during public hearings in a trial setting, presided over by an officer confirmed by the Senate who will hold judge-like authority.

Under normal circumstances, agencies decide how to make the rules. For simplicity and ease, they usually forego conducting oral proceedings in a trial setting and, instead, make rules and regulations in private. In the private rulemaking process, agencies may communicate with whomever they wish, allowing them to seek opinions from sympathetic sources and to guarantee that the evidence favors the creation of certain rules. Although agencies must defend any rules that are challenged in court, they essentially handpick the evidence they wish to present.

H.R. 1432 would require agencies to create rules in a slower and more open manner. The law requires public hearings for all rulemaking and that an agency’s decision be based entirely on the evidence formally presented at the public hearings. Public hearings were once commonplace, but have largely disappeared after the Supreme Court issued two 1970s rulings that required public hearings in only a handful of cases.

Some may object that requiring such stringent public oversight will lead to a more costly and drawn-out process. However, costs can be controlled, since the presiding agency official may limit redundant testimony, provided that he does so without prejudice to anyone’s interest. Additionally, as there has been virtually no formal rulemaking in the last forty years, complaints about cost lack any recent relevant evidence and are, therefore, largely groundless. More importantly, the Patient Protection and Affordable Care Act will significantly affect everyone in the country. It demands intense public scrutiny—and such scrutiny will only be possible when rulemaking agencies hold public hearings.

Kevin Burns currently is a member of the Young Leaders Program at the Heritage Foundation. For more information on interning at Heritage, please visit: http://www.heritage.org/about/internships-young-leaders/the-heritage-foundation-internship-program