Back in January, the Trump administration’s Department of Health and Human Services (HHS) approved a rule that would require the agency to review its regulations every 10 years and, if not done, the regulations would expire. Under the rule, a five-year grace period would be applied before any expiration occurred.
The policy was initiated in conjunction with the Regulatory Flexibility Act of 1980 signed by former President Jimmy Carter. It requires agencies to establish a process for the “periodic review of rules.” The Trump-HHS sunset proposal adds more teeth to that review, setting a point of automatic expiration without the review.
“We believe regulations must be reviewed regularly to determine if they are unnecessarily harmful,” the letter, led by Rep. Brian Harrison (R-Midlothian), reads.
“If the government is not willing to review them, they should expire.”
Harrison, who was elected to his post in a September special election, served as the chief of staff to Trump’s HHS secretary, Alex Azar. According to Harrison, this sunset rule was his brainchild while at the department.
“HHS claims there is no need to systematically review every regulation, because ‘stakeholders’ sometimes speak to the agency about regulations that should be amended. This is nonsense. Your average individual does not have the time or clout to speak to the agency about regulations.”
In an October 29 Federal Register notice, the HHS under Xavier Becerra stated, “The rule is expansive in scope and impact, faced considerable opposition from stakeholders (and very little support), and lacked a public health or welfare rationale for expediting rulemaking.”
The Becerra-led HHS says the original rule by the Trump administration was illegitimately expedited through the regulatory process. But the Federal Register record shows the 60-day comment period was followed before its finalization on January 8, 2021.
“Upon a thorough review of the rule, we find that, given the lack of a public health or welfare reason to expedite the rulemaking and other procedural shortcomings, the Department should now reconsider the commenters’ significant objections to the proposal,” the agency added.
The HHS also alleges the rule would be too difficult to administer. The HHS has roughly 85,000 employees and a $1.5 trillion budget.
Administrative rule-setting by government agencies is a fickle process. They must go through a lengthy public comment period after a rule is proposed and a spell posted on the Federal Register before implementation.
And because it is all done within the executive branch, policies set through this process are subject to change based on who sits in the White House. Because they’re not legislation, the method to overturn a rule is as swift as its approval.
Often, agencies scurry to approve or remove rules before a new administration takes over. But Harrison told The Texan that groundwork on this sunset rule began in 2019.
James Broughel, a senior research fellow with the Mercatus Center at George Mason University, estimates that HHS regulations come at a $230 billion annual expense. He further estimates that the sunset rule would save between $5.2 billion and $27.8 billion.
When announced back in January, the Azar-led HHS provided some examples of outdated regulations this rule would eliminate. It includes policies suspended during the pandemic for expediency’s sake like broadening telemedicine capabilities without violating HIPAA and restrictions limiting the practice of medicine across state lines.
According to the original HHS release, 85 percent of the agency’s regulations before 1990 have not been updated. The U.S. Federal Code is 2,652 pages long.
Additionally, individuals can be jailed for violating any of the 20,000 HHS regulations that neither go through the legislative process nor are signed by the president.
“Biden’s proposal will end the requirement that regulations must be reviewed once a decade; allowing nearly 20,000 regulations from the FDA, CDC, and other agencies to burden individuals and businesses in Texas forever,” Harrison said in a statement.
“If the federal government is unwilling to review the impact of its regulations on my constituents, they should not have to live under them.”
The comment process on the Biden-HHS’s elimination of the sunset rule just closed, and final action on the proposal could come at any time.
Those who signed onto Harrison’s letter are Reps.:
- Steve Allison (R-San Antonio)
- Kyle Biedermann (R-Fredericksburg)
- Briscoe Cain (R-Deer Park)
- Jeff Cason (R-Bedford)
- Jay Dean (R-Longview)
- Sam Harless (R-Spring)
- Cole Hefner (R-Mt. Pleasant)
- Jacey Jetton (R-Richmond)
- Matt Krause (R-Fort Worth)
- Stan Lambert (R-Abilene)
- J.M. Lozano (R-Kingsville)
- Mayes Middleton (R-Wallisville)
- Jim Murphy (R-Houston)
- Tan Parker (R-Flower Mound)
- Four Price (R-Amarillo)
- Glenn Rogers (R-Graford)
- Matt Schaefer (R-Tyler)
- Valoree Swanson (R-Spring)
- Steve Toth (R-The Woodlands)
- Tony Tinderholt (R-Arlington)
- Cody Vasut (R-Angleton)
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Brad Johnson is an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.