Legislation by Fiat

By Dr. Daniel Fabricant, executive director, Natural Products Association

Recent media coverage would lead you to believe there is a general sense in Washington that outside of a few key funding bills that have to move and except for some attention seeking through committee hearings, not much will happen on Capitol Hill for the remainder of this Congress and likely in the next, especially given the important nature of the upcoming election.

This gridlock in Congress understandably means apathy, disinterest and worse, indifference toward government by those outside the beltway. It’s very reasonable that watching the lack of a clear direction makes many grow more and more tired of Washington. More importantly, it gives a false sense of security that now is not the time to focus on the federal government as it is so tied up and lawmakers really won’t have any such reach or interest into how the rest of the country does business. This is a very dangerous sentiment.

While our elected leaders for political reasons may not be behaving as the “deciders” many wish them to, this presents an opportunity for unelected bureaucrats, such as agency regulators, appointed by an administration to write detailed regulations to determine how to interpret and enforce the “will” of the same Congress that may not have had a full grasp of what actually was passed. Congress rarely gives agencies clarification or express direction for implementation for carrying out mandates. Moreover, when Congress affords the agencies the authority to write regulations, these regulations, as we have seen in the recent past, do not always show real effort to determine that intent, but rather are designed to enact the agenda of the administration, especially if that administration had been unsuccessful with attempts to move that agenda through Congress. Fiat, in Latin meaning it shall be done, is generally understood as an authoritative order of law.

Some may speculate that the common thread is to make government larger, provide more control over the private sector and in some cases, to redistribute wealth. While discussions on such topics are found in various places and spaces, these discussions lead to a lack of focus, and whether or not you believe in such ill intent matters less than realizing that regulators regulate. Removing harms is an important job and a tough one. Like all of us in business, when there is an opportunity to make a job easier through added resources or authority, in general, it becomes an easy decision, you add that authority. However, the regulator’s job is a public trust and part of that trust is not just in protecting but in considering the unintended consequences of the ideal regulatory “mousetrap” on industry. With the current political climate, that sentiment rarely gets factored in. So when gridlock sets in, that’s when we have seen a run at the door from regulators with new regulations and guidance that may be more vested in the politics of the administration than the public trust, including the potential for an adverse effect on industry and jobs.

So what does that mean? First, it means that gridlock is not the time to lose interest in the federal government. Actually it means quite the opposite – above all, it is time to stay engaged, even politically, as the power of clarifying the intent from the legislative branch on a law it passed or sponsored is very tough for an executive branch agency to ignore. Secondly, it means that it’s more important than ever to have an association, such as the Natural Products Association, or representation in D.C. that knows the regulatory process. Not just at the agency level, but at the department level and even more so at the president’s Office of Management and Budget (OMB). OMB, through its Office of Information and Regulatory Affairs (OIRA) is obligated by law to ensure, “that the benefits of agency regulations justify the costs and that the chosen approach maximize net benefits to society.” While that may leave some room for interpretation, knowing how to navigate that process does give an industry, that may have crosshairs on its back from federal regulators, another bite at the apple to make sure that regulators consider all sides of the public trust before adversely effecting an industry based on politics alone.

Under what system of government does the executive branch of government say to the legislature, give me what I want or I will enact it by fiat? The answer: not under a system of representative government and the separation of powers.