A legal theory being used to scrutinize hundreds of Health and Human Services Department regulations from the Obama administration isn’t supported by case law, regulatory analysts say.
The Supreme Court has held that rulemaking authority must be exercised by a Senate-confirmed presidential appointee, Senate Homeland Security and Governmental Affairs Committee Chairman Ron Johnson (R-Wis.) said in a May 2 letter to HHS Secretary Alex Azar.
“Does HHS delegate or otherwise authorize employees other than the Secretary to sign regulations?” the letter asked. “Please provide the number of regulations that have been signed by any federal employee who was not an Officer of the United States from 2008 to present.”
One particular concern is a 2016 rule that regulates e-cigarettes under the same statute as tobacco products, the letter said. This rule and nearly 200 more were signed by Leslie Kux, associate commissioner for policy at the Food and Drug Administration, said the letter, which cited recent commentaries in The Wall Street Journal and The Washington Examiner.
‘Baseless’ Legal Theory
“Johnson is parroting a baseless theory cooked up by the Pacific Legal Foundation, a radical anti-regulation interest group,” Jeff Dubner, senior counsel at Democracy Forward, said in an email to Bloomberg Government.
The cases supporters of the theory purport to rely on deal with administrative law judges who make decisions without review—not notice-and-comment rulemaking that happens to be signed by a subordinate official, Dubner said.
This exact argument was rejected by the U.S. District Court for the District of Columbia in Huntco Pawn Holdings v. Department of Defense, Dubner said.
In that case, the court said the plaintiffs read too much into the signature block in the Federal Register and didn’t point to any authority that suggests a regulation is invalid unless signed in the Federal Register by a particular person.
Part of Larger Concern
This argument is at least part of a larger concern about the constitutionality of administrative law judge decision-making, said Cary Coglianese, professor of law and political science at the University of Pennsylvania.
The theory that seems to animate Johnson’s letter is simply that: a theory, and not one that is at all as clear-cut as the letter makes it seem, Coglianese said.
The Constitution’s appointments clause authorizes Congress to vest appointment of inferior officers in the heads of the departments, in this case the secretary, Coglianese said. But there is an argument that inferior officers, duly designated under statute, could authorize rules, he said.
It is also possible—and perhaps this is even most likely—that the secretary approved these rules internally, but someone else sent the rule to the Federal Register, which then published that person’s name with the final rule document, Coglianese said.
It is surprising that regulations aren’t being signed by top policy officials, said Susan Dudley, director of the Regulatory Studies Center at The George Washington University.
The administrator of the Environmental Protection Agency appears to sign all its significant rules, Dudley said.
“I was under the impression that appointed heads of agencies usually sign significant regulations to ensure their accountability for binding rules their agencies issue,” Dudley said.
Coglianese, however, said he was unaware of any requirement, statutory or otherwise, that says the name of the final approver of a rule must be listed in the Federal Register document.
“It’s far from clear to me, at least on the basis of the letter, that there is anything impermissible here,” Coglianese said.
Johnson’s scrutiny is misplaced, said Amit Narang , regulatory policy advocate for Public Citizen.
The delegation of authority to sign rules doesn’t insulate the agency head from removal by the president, including because the agency head approved that rule, Narang said.
“And there is no stipulation that the agency head did not approve the rule signed by the career staffer here,” Narang said.
Johnson instead should use his considerable oversight authority to investigate the deregulatory actions that have been signed by Trump administration officials in an acting capacity, without Senate confirmation and in violation of the Federal Vacancies Reform Act, Narang said.