Agencies do face constraints, of course. The courts from time to time strike down agency rules as arbitrary and capricious, or as exceeding a valid grant of statutory authority. And, today, we will examine some recent cases where courts have vacated or remanded major agency rules. This case has generated enormous controversy, with supporters lauding the Court for taking a small but meaningful step to curb regulatory lawmaking, and critics warning that the decision, if allowed to stand, could undermine the Clean Air Act and other regulatory statutes. Regulations have the force and effect of law.
Regulations are implicit taxes.
When Congress authorizes an agency to regulate, it is, in effect, delegating the power to make laws and levy taxes. Under the delegation system, Members of Congress get the credit for enacting popular-sounding regulatory statutes but bear none of the responsibility for the costs and burdens of regulatory implementation. Non-elected bureaucrats take the heat for implementing the statutes Congress enacts. It is for these reasons, among others, that I am very pleased to welcome Senator Sam Brownback of Kansas, and Representative J.D. Hayworth of Arizona, as our first witnesses. Senator Brownback is the chief Senate sponsor of S. 1348, a bill that would require Congress to approve agency final rules by a majority vote before those rules go into effect.